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Update – 11 August – 1.50pm The Minister for Finance and Acting Special Minister of State (responsible for the AEC), Mathias Cormann, has tweeted to say that “Our commitment for all Australians on Electoral Roll incl silent electors to have opportunity to have their say in Marriage Law Survey. ABS will make further announcements in relation to this as soon as arrangements have been finalised.”

Update – 11 August – 11.30am – I have been told that people who have contacted the AEC today have been assured that silent electors will be sent surveys; even those who are not registered general postal voters. No particulars on the means by which this will be done – whether through the ABS or the AEC.

Could an estimated 113,000 silent electors, whose addresses do not appear on the electoral roll for personal safety reasons, be denied a say in the proposed Australian Bureau of Statistics (ABS) postal survey on marriage law?

At present, the degree of Australian Electoral Commission (AEC) involvement in the proposed survey seems limited to the secondment of AEC officers. Assuming the ABS runs the postal survey directly, rather than using the AEC to distribute forms, it would need access to the electoral roll. The Treasurer’s direction to the ABS for the survey makes reference to the electoral roll as at 24 August 2017.

The law permits the AEC to give the ABS electoral information for statistical purposes. In addition to provisions allowing the roll to be provided to such entities as political parties, MPs, medical research bodies, the AEC may make the roll available to prescribed authorities under s.90B(4) of the Commonwealth Electoral Act:

4) The following table sets out the persons and organisations to whom the Electoral Commission may give information in relation to the Rolls and specifies the information that may be given and the circumstances in which it may be given:

[…]

4. […]

4. a prescribed authority (a) any information on a Roll; and (b) if the Electoral Commission wishes—information about: (i) the sex of; or (ii) the date of birth of; or (iii) the occupation of; a person whose name is included on the Roll (a) the provision of the information is authorised by the regulations; and (b) on payment of the fee (if any) payable under subsection (9).

The ABS is a prescribed authority under Schedule 1 of the Electoral and Referendum Regulation 2016:

1 Prescribed authorities and permitted purposes for use of information

For sections 6 and 9, the following table sets out:

(a) the Agencies or authorities of the Commonwealth that are prescribed authorities; and

(b) the purposes that are prescribed as permitted purposes for a particular prescribed authority.

Prescribed authorities and permitted purposes for use of information Item Agency or authority Purpose 1 Australia Post investigating postal and criminal offences committed against the Commonwealth under the Australian Postal Corporation Act 1989 or the Crimes Act 1914 2 Australian Bureau of Statistics collecting, compiling, analysing and disseminating statistics and related information

Assuming the postal survey is held to be a legitimate exercise in “collecting, compiling, analysing and disseminating statistics and related information”, the ABS would be entitled to the information on the electoral roll.

However, section 90B, which gives the AEC the authority to provide this information, provides at s.90B(6):

“The Electoral Commission must not include in information given under subsection (1) or (4) information about a person whose address has been excluded or deleted from a Roll under section 104.”

The ABS would be receiving the roll pursuant to subsection (4).

Section 104 of the Act is the provision by which electors can ask that their address not be included on the roll for their personal safety, making them “silent electors”. This is often used by people whose occupation, profession or circumstances warrant their address being withheld from anyone inspecting the roll. These enrolees include police, corrections officers, judges, Members of Parliament, and victims of crime who have moved location to avoid further attention, particularly victims of intimate partner and family violence.

The circumstances in which people seek to become silent electors provides good grounds for limiting any subsequent release of that information beyond the limited access within the AEC.

Silent electors often enrol as general postal voters so that their ballots are directly and automatically sent to them at their (private) enrolled address when an election happens. When they turn up to vote in person, the processing is handled with some delicacy to ensure their privacy and the secrecy of both their address and vote.

The current number of silent electors is hard to ascertain, but there has been a steady and significant increase in their number in the past two decades. In 1996, there were 13 460 enrolled with the AEC which more than doubled to 30 713 in 2001.

More recent figures for NSW state elections, indicate a trebling in the number of section/silent voters from the 1999 to 2015 elections: from 4,089 in 1999 to 13, 930 in 2015. This is just the number who voted as silent voters, and doesn’t report the extent of enrolment.

Recent figures for Western Australia indicate 17,969 enrolments as silent voters in 2015-16, an increase of 7.6% on the previous year.

Update: Michael Koziol and Michaela Whitbourn of Fairfax Media report that the Parliamentary Library states there were 113,000 silent electors in 2016.