CITATION: Avery v NSW Electoral Commission [2010] NSWADT 6 DIVISION: General Division Applicant: Stephanie Tatiana Patricia Avery PARTIES: Respondent: NSW Electoral Commission FILE NUMBER: 093075 HEARING DATES: 6.7.09 SUBMISSIONS CLOSED: 14 August 2009 DATE OF DECISION: 5 January 2010 BEFORE: Montgomery S - Judicial Member Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Parliamentary Electorates and Elections Act 1912 CASES CITED: Avery v Registry of Births Deaths and Marriages [2008] NSWADTAP 68 N (No 3) v Commissioner of Police, NSW Police Service [2002] NSWADT 34 Applicant Representative: In person REPRESENTATION: Respondent Representative: M DellaPozza, solicitor ORDERS: The decision under review is affirmed REASONS FOR DECISION Background 1 The applicant has applied to the Tribunal under the Freedom of Information Act 1989 ("the FOI Act') for review of the NSW Electoral Commission refusal to amend its records so that her name is correctly recorded. 2 The applicant's full name is Stephanie Tatiana Patricia Avery however it appears that printouts of the Electoral Roll maintained by the respondent and correspondence, including a Penalty Notice, that the respondent has issued to her either omit one or both of her second and third given names, include only her initials or omit the final letter from her third given name. That is, her name is included as Stephanie Avery, Stephanie T Avery or Stephanie Tatiana Patrici Avery. Printouts of the Electoral Roll record her name as Stephanie Tatiana Patrici Avery. The respondent does not dispute that the Electoral Roll records her name in that way. 3 In her application to the Tribunal, the applicant sought orders in the following terms: "Seeking orders: 1. to amend the records of Electoral Commission NSW so my name correctly taken from Australian Electoral Commission records where I am enrolled as Stephanie Tatiana Patricia Avery; 2. correct name on all correspondence including Penalty Notice; Penalty Notice and other records of NSW Electoral Commission omitted my second middle name; Or 3. provide me with the decision that - name on the electoral poll and documents produced by government may not be proof of name or usage; - name on the electoral poll and documents produced by government departments may not be proof of the name or usage; - name on the electoral poll and documents produced by government departments may not be proof of change of name or usage; - documents with the names other than wishful/true/legal name in the position 'use it or no service' or 'use it or you are getting penalty' or 'no choice' etc is not usage for the purpose of establishing identity". 4. I have had difficulty in understanding much of the material filed on behalf of the applicant. However, I understand the applicant's intention is to seek to have the records held by the respondent amended to record her full name as Stephanie Tatiana Patricia Avery. 5. I understand the final order sought is an attempt by the applicant to address concerns that she raised in an earlier matter dealt with by the Tribunal in which she attempted to have a record of aliases removed from the records of the NSW Registry of Births, Deaths and Marriages: see Avery v Registry of Births Deaths and Marriages [2008] NSWADTAP 68. Relevant legislation 4 Part 4 of the FOI Act deals with the amendment of records. 5 Section 39 sets out the situations in which a person may apply to an agency for the amendment of its records. 39 Right to apply for amendment of agencies' records A person to whom access to an agency's document has been given may apply for the amendment of the agency's records: (a) if the document contains information concerning the person's personal affairs, and (b) if the information is available for use by the agency in connection with its administrative functions, and (c) if the information is, in the person's opinion, incomplete, incorrect, out of date or misleading. 6 Section 40 requires such an application to contain certain matters. 40 Applications for amendment of agencies' records An application for the amendment of an agency's records: (a) shall be in writing, and (b) shall specify that it is made under this Act, and (c) shall contain such information as is reasonably necessary to enable the agency's document to which the applicant has been given access to be identified, and (d) shall specify the respects in which the applicant claims the information contained in the document to be incomplete, incorrect, out of date or misleading, and (e) if the application specifies that the applicant claims the information contained in the document to be incomplete or out of date—shall be accompanied by such information as the applicant claims is necessary to complete the agency's records or to bring them up to date, and (f) shall specify an address in Australia to which notices under this Act should be sent, and shall be lodged at an office of the agency. 7 The term "agency's document" is defined in section 6 to mean "a document that is held by the agency". Section 6(2)(e) provides: "a reference to a document held by an agency includes a reference to a document to which the agency has an immediate right of access and a document that is in the possession, or under the control, of a person in his or her capacity as an officer of the agency..." 8 Section 43 empowers an agency to deal with an application for the amendment of records by either deciding to amend its records or by refusing the application. Section 44 sets out the grounds on which it may refuse to amend records. 44 Refusal to amend records An agency may refuse to amend its records in accordance with an application: (a) if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect, or (b) if it is satisfied that the application contains matter that is incorrect or misleading in a material respect, or (c) if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than this Act, whether or not amendment of those records is subject to a fee or charge. 9 Section 53 provides that a decision made under section 43 is reviewable by the Tribunal. On review, the Tribunal must determine what the correct and preferable decision is under section 43 and may affirm, vary or set aside the decision or remit the matter: section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 10 Section 26(4) of the Parliamentary Electorates and Elections Act 1912 ("the Electorates and Elections Act") provides: 26 Rolls for districts and subdivisions ... (4) The rolls: (a) may be in the prescribed form, (b) shall set out the surname, given name or names, residence, date of birth, occupation (or other prescribed particulars) and sex of each elector, (c) shall contain such further particulars as are prescribed, ... 11 Section 39 of the Electorates and Elections Act provides for the alteration of Electoral Roll. The respondent's case 12 The respondent does not dispute the fact that the applicant's full name is Stephanie Tatiana Patricia Avery. Further, it is common ground that the respondent issued her a Penalty Notice on 3 December 2008 for failing to vote in the Local Government elections of 13 September 2008 and that the Penalty Notice was addressed to Stephanie T Avery. 13 The respondent also does not dispute the fact that in both the Australian and the New South Wales Electoral Rolls, the applicant's name appears as Stephanie Tatiana Patrici Avery. 14 However, the respondent raised a preliminary jurisdictional point with respect to the applicant's right to apply for amendment of the respondent's records. In regard to the Electoral Roll, the respondent submits that the applicant does not satisfy the mandatory threshold of having been given access to "an agency's document" and therefore she is not entitled to apply for the amendment. 15 The respondent also contends that the requirements of section 39(b) cannot be satisfied in regard to the Penalty Notice that the applicant says is inaccurate, because it is not available for use by the respondent in connection with its administrative functions. 16 I do not agree with the respondent in regard to the first of these preliminary issues. In my view, a copy of the Electoral Roll is available for public inspection and as such is available to the applicant. The applicant has also been given the Penalty Notice. Section 39 provides for a right to apply for amendment of the respondent's records. It is not a right to apply for amendment of the documents. The respondent's records are available for use in connection with its administrative functions. The applicant is entitled to apply for amendment of the records if, in her opinion, information concerning her personal affairs in either the Electoral Roll or the Penalty Notice is incomplete, incorrect, out of date or misleading. 17 The respondent relies on the statement of Paul Beeren to explain why the applicant's name appears in the Electoral Rolls as Stephanie Tatiana Patrici Avery. Mr Beeren is an Information Technology Project Officer employed to manage the electronic data supplied by the Australian Electoral Commission ("AEC") for the purposes of producing the NSW State and Local Government Electoral Rolls. His evidence is that in the computer systems used by the AEC, only 25 characters are available for including the names of an elector. Consistently with the procedures of the AEC, a name of greater length than 25 characters appears in truncated, rather than abbreviated, form. It is the truncated version of the applicant's name that the AEC has made available to the respondent. 18 Pursuant to an agreement entered into between the Commonwealth and New South Wales in the late 1920s, the Electoral Roll used in the conduct of NSW State and Local Government Elections essentially comprises data compiled by the AEC. 19 It is the policy of the AEC that only the truncated version of an elector's name is made available to agencies that receive electronic enrolment data from the AEC. It is for that reason that the data received by the respondent contains only the first 25 characters of the applicant's given names. 20 The respondent relies on section 44(c) of the FOI Act. This provides that an agency may refuse to amend its records: "if the procedures for amending its records are prescribed by or under the provisions of a legislative instrument other than this Act, whether or not amendment of those records is subject to a fee or charge." 21 Section 39 of the Electorates and Elections Act provides such an alternative remedy. It states that "a[n electoral] registrar may alter any roll kept by the registrar by ... correcting any mistake or omission in the particulars of the enrolment of an elector". 22 The respondent submits that the object of section 44(c) of the FOI Act is to preserve any existing alternative statutory processes providing for the amendment of records and to preclude the possibility of the FOI Act from being used in a manner which might be inconsistent with those alternative procedures. This object is particularly important in the case of important official documents such as the Electoral Roll. Parliament intended that responsibility for the form and content of this document repose in the Electoral Commissioner ("the Commissioner") as the person responsible for overseeing the administration of the Electorates and Elections Act. His functions and responsibilities in this regard are set out in that Act to the exclusion of the FOI Act. It was to preserve the integrity of statutory schemes such as the Electorates and Elections Act that section 44(c) was included in the FOI Act. 23 With respect to the issue of correction of the Penalty Notice and other correspondence that was issued to the applicant, the respondent contends that the requirements of section 39(b) cannot be satisfied in the present case. It says that the information contained in the Penalty Notice which the applicant says is inaccurate is not "available for use [by the respondent] in connection with its administrative functions". 24 Mr DellaPozza submits that information as to the correct version of a name could only be "available for use in connection with an agency's administrative functions" if it were in a document of a type likely to be used by the agency to establish the individual's correct name in the course of its future administrative functions. In other words, if the name were in a document that the respondent would be likely to consult for the purposes of establishing the applicant's correct name in the future, it might well be the case that the information would be available for use in connection with its administrative functions. In support of this submission the respondent relies on the decision of the President of the Tribunal in N (No 3) v Commissioner of Police, NSW Police Service [2002] NSWADT 34, at paragraph [35], where the President discussed the meaning of the term 'administrative functions' in section 39 of the FOI Act. 25 The respondent contends that a Penalty Notice is a statutory instrument used to commence the process of the enforcement of a fine issued for a Penalty Notice offence. It is, therefore, an external document rather than a document designed to be used by the respondent for any future administrative purposes. 26 The respondent points to the absence of any power of the Tribunal to order the return of the Penalty Notice. The respondent is not prepared to withdraw and re-issue the Notice of its own accord. Such a Notice can only be issued within 3 months of an election. In the respondent's submission, a re-issued Notice would not be valid. 27 Mr Ian Brightwell, the respondent's Director, Information Technology, provided a statement in which he set out the process for compiling a database for the purpose of issuing Penalty Notices to persons who are enrolled and who fail to vote at State and Local Government Elections. He stated that a list of 'non-voters' is compiled and their details included in a database maintained by the respondent. 28 The system involves a formatting procedure that records the elector's name in a form that does not correspond exactly with the name as it appears on the certified list. The formatting procedure entails the recording of the elector's surname, first name and a single middle initial. 29 Mr Trevor Follett, the respondent's Director, Finance and Administration, provided a statement in which he set out the process for printing and issuing of Penalty Notices for failure to vote. 30 Mr Follett stated that the respondent prepares a list of persons who were entitled to vote at the election and who nevertheless failed to vote. The data is sent to an entity that is responsible for the actual printing and posting of the Penalty Notices. The Penalty Notice issued to the applicant on 3 December 2008 was printed and posted by that entity and issued in the name Stephanie T Avery. Mr Follett stated that the respondent does not retain copies of the Penalty Notices sent to non-voters. Hence, the respondent does not retain any 'record' specifying the applicant's name as Stephanie T Avery. No evidence was provided in regard to whether or not the entity that is responsible for the actual printing and posting of the Penalty Notices retains retain copies of the Penalty Notices. 31 Mr Follett also stated that he has arranged for a suitable annotation to be made in respect of the applicant for the purposes of any failure to vote Penalty Notices issued to her in the future. Any Penalty Notice sent to the applicant in the future will be issued in the name Stephanie Tatiana Patricia Avery. The respondent proposed that no further orders should be made in this regard. 32 With respect to the third order sought by the applicant, the respondent submitted that the power of the Tribunal in these proceedings is limited to reviewing whether the respondent made the '"correct and preferable decision" for the purposes of section 63 of the ADT Act. It follows that the Tribunal lacks the power to make the order sought. 33 The respondent submits that the Tribunal should not make any of the orders sought by the applicant. The applicant's case 34 The applicant asserts that under section 33 of Electorates and Elections Act she is entitled to have her name on the roll and that the respondent must address her by her disclosed legal name. She says that as her name does not appear correctly on the roll, her name is not on the roll at all despite that entitlement. 35 She says that the respondent's record is incorrect, incomplete and misleading as her name does not appear correctly on it. She further says that this record is used in connection with the administrative functions of the respondent in that incorrect, incomplete and misleading record and information is used in printing of Penalty Notices. 36 She submits that normal administrative practice does not include producing incorrect, incomplete and misleading state records. She says that the FOI Act enables a member of the public to ensure that records held by Government concerning his or her personal affairs are not incomplete, incorrect, out of date or misleading. 37 She submits that the while the Commissioner has arrangements with the Commonwealth as to Rolls, the Commissioner administers separate laws in New South Wales. The Commissioner has the same obligations and the same powers in respect of the Electoral Rolls as the Australian Electoral Commissioner and has power to act independently from the AEC. The Commissioner is the person who prepares and confirms the rolls for the elections under the Local Government Act. The Commissioner has power to alter electoral rolls by correcting any mistakes or omissions in the particulars of the enrolment of an elector: section 39 of the Electorates and Elections Act. Therefore, if the name of the applicant is incorrect on the NSW Electoral Roll or other records, the NSW Electoral Commissioner has power to take actions to revise and correct the NSW Electoral Rolls and to correct personal information where incorrect, incomplete or misleading. 38 She submits that the respondent has chosen to have particular software for its administrative purposes and that any limitation of that software and that formatting of names in a specific manner are the consequence of the respondent's choice of software. 39 Section 120B of the Electorates and Elections Act provides that it is the Commissioner who prepares the list of electors failing to vote at an election. Pursuant to Section 120C of that Act the Commissioner must serve a Penalty Notice on the elector within 3 months after the close of the poll. The person who serves the Penalty Notice to for the failure to vote is the Commissioner, although the Commissioner may delegate that function. 40 The applicant asserts that the Penalty Notice was issued in the name of the respondent and that any office that performed the functions or undertakings for which the respondent was responsible is to be treated as the respondent: section 8 of State Records Act 1998. She says that in this particular case the respondent has produced and keeps records of non-voters. The Penalty Notice in which the name of the applicant was produced with omission of any indication of her second middle name was produced from those records. Therefore, she submits, the respondent is in control, possession and thus responsible for its incorrect records. 41 The Applicant submits that the decision of the respondent is inconsistent with the provisions of the relevant Acts and Regulations. She referred to views expressed in John Paul Murphy and Australian Electoral Commission (1994) 33 ALD 718 where Senior Member Beddoe stated at paragraph [18]: "18. It is common practice within Commonwealth agencies for there to be guidelines which seek to achieve consistency of administrative decision making. It is, in my view, beyond argument that the citizen is entitled to expect to be dealt with on a fair basis and that part of the fairness is that the decisions that are made in relation to the various persons in the same general situation will be consistent with each other. Such consistency in decision making depends upon the existence of guidelines and, in the ordinary course of events, such guidelines will be disclosed by the agency as a matter of public record. It would clearly be an unsatisfactory situation if Divisional Returning Officers in different electorates used different criteria to determine whether or not they were satisfied that the defaulting elector had a valid and sufficient reason for the failure to vote." 42 The applicant referred to section 38 of the Electorates and Elections Act in support of her assertion that the respondent has an obligation to do everything necessary to be done to secure her enrolment. 43 The applicant asserts that because the respondent is not prepared to amend its records now, it is not likely to ensure that her name is correctly recorded on any future Penalty Notice. Findings 44 In these matters the Tribunal stands in the shoes of the respondent and has no additional powers to those possessed by the respondent. The Tribunal undertakes a review of the respondent's decision, to decide what the correct and preferable decision is. In doing so it may have regard to any material before it. 45 The respondent concedes that the applicant's full name is not correctly recorded on the Electoral Roll and that a Penalty Notice issued to the applicant did not record her full name. However, the respondent's decision was to refuse to amend its records to record the applicant's full name. 46 In my view, the applicant was entitled to request amendment of the Electoral Roll pursuant to section 39 of the FOI Act. I am satisfied that the information is available for use by the respondent in connection with its administrative functions, and that in the applicant's opinion, the information is incomplete. 47 Pursuant to section 44(a) of the FOI Act, the respondent may refuse to amend its records if it is satisfied that its records are not incomplete, incorrect, out of date or misleading in a material respect. 48 The Macquarie Dictionary Online defines the word "material" to mean "of substantial import or much consequence" or "having significance or relevance". Similarly, The Oxford English Dictionary online defines the word "material" to mean "of serious or substantial import; significant, important, of consequence". 49 In the circumstances of this matter, the record of the applicant's name on the NSW Electoral Roll is incomplete in that it fails to record the final letter in the applicant's third given name. The applicant's surname name is correct and twenty-three of the twenty-four letters in the applicant's given names are correct. In my view, the omission is not "of serious or substantial import" so as to make the record "incomplete, incorrect, out of date or misleading in a material respect". In these circumstances, the respondent was entitled to refuse to amend its record. 50 I accept the respondent's evidence as to the procedures in place in regard to the maintenance of the Electoral Roll. In my view, it is in the public interest that there be consistency in the administration of the Electoral Roll and consistent application of the policy that is in place is an important component of that administration. In my view, the correct and preferable decision is to refuse to make an exception in the case of the applicant where the record is not "incomplete, incorrect, out of date or misleading in a material respect". The decision should therefore be affirmed. 51 I note that I also agree with the respondent that the respondent was entitled to refuse to amend its record pursuant to section 44(c) of the FOI Act as section 39 of the Electorates and Elections Act provides an avenue for alteration of the Electoral Roll. I agree that the object of section 44(c) of the FOI Act is to preserve that process. The FOI Act should not be used to circumvent that purpose. 52 While I agree with the applicant that records held by an entity that is responsible for the actual printing and posting of the Penalty Notices are to be considered to be held by the respondent (see section 6(2)(e) of the FOI Act), it is my view that the Penalty Notice issued to the applicant on 3 December 2008 is no longer information that is available for use by the respondent in connection with its administrative functions. Therefore, the applicant was not entitled to request amendment of the Penalty Notices pursuant to section 39 of the FOI Act. 53 If I am wrong on that issue, it is my view that it is not incomplete, incorrect, out of date or misleading in a material respect. The applicant's surname name is correct and the applicant's first given name and second initial are correct. In my view, the correct and preferable decision is to refuse to make the amendment sought. The decision should therefore be affirmed. 54 I note however, that the respondent has indicated an intention to ensure that any future Penalty Notices that might be issued to the applicant will be issued in her full name. 55 I also agree with the respondent submitted that the Tribunal lacks the power to make the third order sought. 56 It follows, in my view, that the Tribunal should not make any of the orders sought by the applicant. Decision The decision under review is affirmed. 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