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Friday, November 20, 2009

Automatic voter enrolment and related issues

The NSW Government's move to legislate for automatic voter enrolment not only attracted the attention of those at the Australian Privacy Foundation's Big Brother Awards, but Stephen Murray in New Matilda, Ben Eltham and Miriam Lyons in the Sydney Morning Herald, William Bowe at The Poll Bludger and others have all added useful and sometimes differing perspectives.

Here are a couple of points that may not have been picked up so far about aspects of the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Bill 2009. The bill was introduced by Parliamentary Secretary Penny Sharpe on behalf of the Attorney General in the NSW Legislative Council on 12 November. Other than the Second Reading speech, there has been no debate to date.

Was the Privacy Commissioner consulted, and to what effect?

The Second Reading Speech concludes:
"The Government has consulted extensively with the New South Wales Electoral Commission in relation to all aspects of the bill. I place on he record the thanks of the Government to the New South Wales Electoral Commissioner and his staff for their invaluable contribution to the preparation of this bill."
There was no mention of any other consultation including with the Privacy Commissioner. There are no published submissions on the Privacy Commissioner's website since November 2008. A perspective from the Commissioner would be helpful in assessing the claim in the speech that "(t)he provisions of the bill with respect to elector privacy are both fair and balanced..." and that protections will be enhanced by creating a new offence for the misuse of personal information acquired under the Act, carrying a maximum penalty of 50 penalty units, currently $5,500.

From my reading of the Bill, some of the privacy concerns, which need to be balanced against advantages of automatic enrolment are:

that the Electoral Commission(proposed Section 46) can for any purpose relating to the roll demand and must be provided with personal information
relating to a person (including a person’s telephone and email contact details and any other information or code used to identify a person) for the purposes of determining whether the address for which the person is enrolled is the person’s real place of living, or if the person is not enrolled—whether the person is entitled to be enrolled for any district. There follows a list of those subject to this obligation including any public servant ( eg those at Births, Deaths and Marriages, the Roads and Traffic Authority, the Department of Health and Area Health Services, Education, Community Services etc,etc), a police officer, local council employee, Sydney Water Corporation, an electricity supplier, the public universities and last but not least, an elector or person entitled to be enrolled;

that regulations yet to be seen may make provision for or with respect to the collection of information by such persons, for example, for the Roads and Traffic Authority in its application forms to collect information such as mobile phone numbers and email addresses for the purposes of notifying electors they will be placed on the roll;

that the NSW Privacy and Personal Information Protection Act does not apply in relation to the disclosure of personal information to the extent that the personal information is provided to the Commission under proposed Section 47 by any of these persons or bodies. Does this mean simply in respect to disclosure or that they also aren't required to give notice of this disclosure at the time of collection? There is no opt out.

that the Electoral Commmission is not subject to the PPIP Act in the collection use and disclosure of information received in this way. It would still seem to be bound by the PPIP Act regarding reasonable safeguards for keeping the information secure.

Political parties and independents entitled to know who voted and where

What is the justification for this provision (proposed Section 138) and is there a precedent?:

(2) After an election, the Commission must ensure that: (a) each registered party that so requests, and (b) each member of Parliament who is not a member of a registered party and who makes a request in respect of the member’s district, is provided with electoral information containing the names and the addresses of electors who voted (other than silent electors and itinerant electors), whether they voted personally or by post and, if they voted at a polling place for the district for which the electors were enrolled, the location of that polling place.

(3) Electoral information provided under subsection (2) must only be used in connection with an election.

(4) A person must not use, or cause or permit the use of, electoral information provided under this section for any purpose other than in connection with an election. Maximum penalty: 1,000 penalty units.

How does the presumption of an overriding public interest against disclosure fit with a discretion to disclose?

Proposed Section 48 creates an offence for a person divulging information other than in the course of duties. With the ink barely dry and the Government Information (Public Access) Act yet to commence, a consequential amendment in Schedule 6 would add Section 48 to Schedule1 of the GIPA Act - creating a presumption of an overriding public interest against disclosure of information under GIPA. Such information is not to be published or disclosed. There is no other test.

Yet Section 48 contains these exceptions:

(2) Despite subsection (1), information may be divulged:(a) to a particular person or persons, if the Electoral Commissioner certifies that it is necessary in the public interest that the information be divulged to the person or persons, or (b) to a person who is expressly or impliedly authorised to obtain it by the person to whom the information relates.

Relationship with Freedom of Information Act

After 20 years and with the FOI Act on its last legs with the GIPA Act to replace it early in 2010, how has the Commission got by so far, and why is this (proposed Section 48) now necessary: (6) Any document that contains information provided to the Electoral Commissioner under this Division, and any database maintained by the Electoral Commissioner for the purposes of this Division, are not subject to the Freedom of Information Act 1989.

1 comment:

  1. Anonymous4:10 pm

    This is big brother by stealth. Will function creep see this data extended to some sort of ID card?