Report by the Privacy Commissioner to the Minister of Justice on the Electoral Act 1993, 29 April 1997
2. Registration of electors
3. Publication of address details on roll
4. Other electoral roll issues
5. Habitation index
6. Registration of political parties
7. Summary of recommendations
1.1 My work has brought me into contact with a number of electoral issues over the last few years. The use of the electoral roll for non-electoral purposes is an issue arises from time to time. For these reasons, and because I have not previously had an opportunity to scrutinise the Electoral Act 1993 pursuant to the information privacy principles, I have not limited my remarks solely to electoral issues that have arisen out of the 1996 General Election. Nonetheless, I trust that my comments may be of assistance to the Electoral Law Committee's Inquiry into the 1996 General Election if you choose to pass this report on.
1.2 As Privacy Commissioner my interactions with the electoral law are varied. In my enquiries and complaints activities, I continue to get a number of enquiries about the uses to which the electoral roll is put for tracing and marketing. For instance, I received some expressions of concern, before the general election and before the earlier local body elections, at the use of electoral information by political parties for telemarketing, sometimes using automatic dialling machines. In other contexts I have been consulted by officials in respect of information matching using the electoral roll, the redesign of the electoral enrolment form and the process for registration of political parties. The privacy issues arising from electoral processes are not unique to New Zealand and in preparing this report I have taken the opportunity to consult colleagues in Australia and Canada about developments in their jurisdictions. The Privacy Act 1993 and the Electoral Act 1993
1.3 The Privacy Act 1993 was enacted in May 1993 and the Electoral Act followed shortly after in August. Each bill had a significant gestation and neither could be said to have significantly influenced the other. Therefore, I suggest that it might be timely to reconsider aspects of electoral law with the approach of the information privacy principles in mind.
1.4 In making this suggestion I am not advocating any fundamental rewriting of electoral law. For all its radical MMP features, the Electoral Act consolidates, continues and builds upon, much of what appeared in the Electoral Act 1956 and its predecessors. However, for this reason there are some practices, such as the publication of full personal details on the electoral roll, which were established in an earlier age and which could usefully be reconsidered in the light of today's approach to privacy of personal information.
1.5 Throughout this report I will highlight aspects of the electoral law in the light of the information privacy principles and other parts of the Privacy Act. It may therefore be helpful to briefly mention some of the key features of the Privacy Act to which I will refer. These include: the information privacy principles - which are at the heart of privacy protection, governing the collection, storage, use and disclosure of personal information; the public register privacy principles - these apply to the electoral roll as a 'public register'; information matching controls - the Privacy Act establishes a systematic approach to information matching (sometimes referred to as 'data matching') through the information matching guidelines, information matching controls and the information matching rules.
1.6 I will make only passing reference to the information matching controls and public register privacy principles. My main focus will be the information privacy principles and general privacy concerns. The information privacy principles of most relevance to the issues raised in this report are: principle 1 - which limits collection of personal information to that which is necessary for a lawful purpose connected with a function or activity of an agency; principle 3 - which requires that agencies make individuals aware of certain matters when they collect personal information from them, and is directed towards an openness in information handling, and an accountability from the agency to the individual concerned; principle 9 - which requires that personal information should not be kept for longer than is required for the purposes that the information can lawfully be used, and is directed towards the harm that can befall individuals if personal information is held overly long and is then used; principles 10 and 11 - which require that information be used consistently with the purposes for which it was obtained and not generally for other purposes.
1.7 The electoral roll is the key administrative tool for the conduct of elections. Many of my comments in this report will be directed to it. The roll is used to ensure that on election day only eligible people vote, that their votes are counted in the correct electorate, and that each elector votes only once each for a candidate and a party. An electoral roll is a feature of elections in all modern democracies. Our electoral roll is 'permanent' in the sense that it always exists although it is revised from time to time It is not separately created for each new election. The electoral roll is compiled and used on a district basis, currently in respect of 65 electorates.
1.8 The compilation and use of an electoral roll can be characterised in information privacy terms: as a collection of personal information (the enrolment and roll revision processes); as a storage of personal information (the record keeping functions of the Electoral Enrolment Centre); as a use of personal information by the government for its primary purposes (verifying the eligibility of an individual to vote, administration purposes on election day) and for secondary purposes (such as for compiling jury lists); as a disclosure of personal information (for instance to researchers and political parties); as a public register (and therefore subject to the public register privacy principles and, as a 'publicly available publication', as an exception to certain key information privacy principles).
1.9 There are a number of potential privacy concerns arising from the processes involved in the compilation and use of an electoral roll. In general terms, these concerns might include amongst others: the potential use that can be made of a list of all adult New Zealanders in a permanent and accessible form; whether all personal information which is collected by compulsion of law is really needed for electoral purposes; what official purposes, in addition to electoral purposes, the government might put the information to; what purposes, unrelated to electoral or official purposes, the information published on the electoral roll might be put to.
1.10 I have several suggestions as to how some of the privacy issues arising from the electoral roll might be tackled. These suggestions are: to omit details of occupation from the published roll; to omit partial address from the published roll; to use the confidential listings to meet harassment concerns; to restrict the sale of the habitation index.will elaborate on these suggestions, and make a number of others, in the rest of this report.
2. Registration of electors
2.1 Registration of electors involves a number of information handling processes to which the information privacy principles are relevant. The primary method of obtaining details of electors for the electoral roll is by collection directly from the individual concerned. Electors are required to complete an electoral enrolment form in which they provide a number of details which establish their eligibility to vote. Such details provide information which appears on the electoral roll and some supplementary information which is used for electoral administrative purposes (but is not published). Principle 3 and enrolment form.
2.2 One information privacy principle relevant to this process is principle 3. That principle envisages that the individuals from whom information is collected will be made aware of the purpose for which the information is to be used, the recipients of the information, and various other matters. I had been concerned prior to 1996 that the electoral enrolment form did not provide all the explanations that would be anticipated by the principle. I was also concerned that individuals considering enrolling were not being informed on the electoral enrolment form of the existence of the confidential roll.
2.3 The electoral enrolment form was revised in the lead-up to the 1996 general election. I was consulted in late 1995 and early 1996 by officials from the Ministry of Justice involved in that exercise. I was pleased that it was accepted that prospective electors should be advised of the confidential roll on the revised enrolment form. This explanation had never previously appeared on enrolment forms although the rights to ask to be placed on this confidential roll had existed for many years. By and large I was relatively satisfied with the improved compliance with information privacy principle 3 ultimately achieved by the revised form. However, two points which I suggest should be improved are: the form should make clear 'the consequences (if any) for the individual if all or any part of the requested information is not provided' (information privacy principle 3(1)(f)); and in section E of the form, the purpose for requesting neighbours' and landlords' names should be explained (principle 3(1)(b)).
2.4 Although the enrolment form in use for the 1996 general election was an improvement in respect of principle 3 I still retain some concern about the need to collect details of occupation. I question the need to collection such details for core electoral purposes and suggest the need should be re-examined in the light of information privacy principle 1. The official need for the details should be separated from the issue of whether political parties and candidates find it useful to have access to such details. The issue has been considered in Australia where I understand occupational details are no longer collected in some states.
2.5 If it turns out that the need for details of occupation is primarily political rather than for official registration purposes this should be openly acknowledged. Given the centrality of political parties in the MMP environment, I would not wish to imply any lack of importance for legitimate party political needs. However, those political needs should be distinguished from the essential requirements to obtain information for electoral registration and voting purposes. Accordingly, depending upon whether details of occupation are deemed necessary for official purposes, I believe that the enrolment form should be revised to make it clear whether such details are solely required for the purposes of candidates and registered political parties in relation to elections or whether the details are required for official purposes and also for candidate and party political purposes. If solely for candidate and party political purposes consideration should be given to making the supply of those details optional.
2.6 In 1979 there was a major enquiry into the electoral law by a committee which did not include any Parliamentarians. That Committee of Inquiry noted: 'The requirement to show the occupations of persons included in the roll did not appear to serve any useful purpose. Earlier legislation used the expression 'description' and that is also unnecessary. People change their occupations and status too frequently for this requirement to be of any practical use in identification.'
2.7 Interestingly, it appears that the provision of occupational details is already almost optional, given that section 85(3)(d) acknowledges that not everyone has an occupation ('occupation (if any)') and section 85(4) does not permit the Registrar to reject an application for enrolment which does not provide details of occupation. I will address the matter further in this report, in the context of the disclosure of occupation details on the published electoral roll. Form used in roll revision process.
2.8 Although the enrolment form has been carefully redesigned with information privacy principle 3 in mind, the same exercise was not carried out in respect of existing electors who simply confirm their re-enrolment in a roll revision exercise. I suggest the re-enrolment form should be revised to provide each of the explanations anticipated by information privacy principle 3. The revised enrolment form in use for the election will give some guide to how those explanations might appear.
2.9 It might be asserted that providing explanations on the re-enrolment form goes further than is required by information privacy principle 3. Principle 3 applies to a collection of personal information directly from the individual concerned. Where details remain unchanged it may well be argued that the Registrar of Electors is not collecting any new information at all but simply verifying information that he or she already holds. However, I suggest that verification or revalidation in those circumstances does amount to a collection since the Registrar obtains new personal information that he or she never previously had. For example, prior to the re-enrolment exercise the Registrar might know that John Smith lived at a particular address and was eligible as an elector in 1993. Following the re-enrolment process the Registrar knows that the same John Smith continues to live at that address and remains an eligible elector in 1996. This personal information was not previously known.
2.10 Furthermore, if any personal details have changed, it is beyond dispute that the re-enrolment process amounts to a collection of the changed details. For example, if Mary Jones who was enrolled at the same address as John Smith in 1993 has now married him, she may well notify a change of name. If either John or Mary had moved the Registrar may well obtain address information through the redirection process.
2.11 It seems to me important that individuals be made aware of the purpose for which their personal details are required, what they will be used for and to whom they will be passed, whether on original enrolment or at the time of roll revision. It is important to bear in mind that the majority of electors will have enrolled before the enrolment form was revised and so will never have had some of the explanations anticipated by principle 3.
2.12 The need for openness about information handling practices at roll revision time is also important if one considers the confidential roll. It may well be the case that an individual who did not need the protection of the confidential roll whenever they enrolled, might, through a change in personal circumstances, benefit from its protections by the time of re-enrolment. Individuals should be made aware of these provisions - whether for the first time or as a reminder in later years. I will discuss the confidential roll in more detail later in this report.
Further revision of enrolment form
2.13 Some of the suggestions I make elsewhere in this report may, if accepted, require revision of the electoral enrolment form so as to ensure continuing compliance with information privacy principle 3. For example, if occupation be omitted from the published electoral roll, it will be desirable for this to be reflected in the explanations given on the enrolment form. Electors will be entitled to know that while details of occupation will not be published they will be made available to candidates and political parties.
2.14 Introduction of the Retirement Saving Schemes Referendum Bill has highlighted a further use that the electoral roll is put to: the conduct of referenda. These could arise on an ad hoc basis, as with that bill, or under the Citizens Initiated Referenda Act 1993. Attention should be given to making such use clear when next the enrolment form is revised. Similarly, consideration should be given to whether the form adequately describes the new access to the roll granted under amendments contained in the Electoral Amendment Act 1995 (No 2).
3. Publication of address details on roll
3.1 Over the last four years I have kept a close interest in the privacy aspects of public registers. Concerns about personal safety have featured in many of the public register issues in which I have been involved. There are special privacy problems associated with information that is collected for, and held on, public registers. The differences compared with some other personal information obtained or held by the agencies include: compulsory collection - it will usually be necessary to supply details for inclusion on a public register to carry out certain specified activities and it will be an offence to carry out those activities without having completed the registration process (in the context of voting, of course, it is not simply an offence to vote without having enrolled, it is an offence to fail to enrol whether or not one chooses to vote); open search - a register will be maintained in a form that is open to search by statutory officials and often personal details are available to public view (and indeed, if information is sourced from a public register the safeguards available for individual privacy are diminished since the Privacy Act recognises that information as being 'publicly available information' and therefore an exception to some of the key privacy principles).
3.2 The special characteristics of public registers mean that some privacy problems are magnified and others arise which are peculiar to public registers. For example, there are issues involving: personal safety; the use of the register information for incompatible purposes; and the use of the register information for unrelated and intrusive purposes. Personal safety
3.3 The personal safety issue, briefly stated, is that some people have special concerns for their safety if their residential address becomes known, either generally or to certain people. The most common example is an individual who has escaped domestic violence. However, there are other people with particular concerns for their privacy, safety and wellbeing, such as some victims of crime, witnesses or jury members, public figures, law enforcement officials and targets of harassment by stalkers and others. Such people have sometimes taken particular care to limit disclosure of their residential address and personal details. 3.4 However, when those people come into contact with public authorities they are sometimes required to give such details which may then be made available for open public search. Individuals who fear for their safety if their address becomes known are therefore placed in a quandary. Do they provide the information and take the risk? Do they break the law and fail to register? Do they register giving false details? Do they forego the opportunity to participate in the activities that requires registration - such as the opportunity to vote? These can be cruel choices. They are not choices that public authorities would wish to force upon individuals if a better option can be identified. 3.5 The confidential roll is one such option and as I discuss below I believe how it can be enhanced for personal safety purposes. However, it is not the only option. For example, I particularly support the approach taken in the new legislation establishing the dog register as it proceeds on the assumption that information should be released only to people who have a 'need to know'. The Department concluded in that case that open public access was not necessary for the purposes of that legislation and that dog control needs would be effectively addressed by enabling authorised persons, such as dog control officers and veterinary surgeons, to have unrestricted access. Register information could be released to the general public for purposes consistent with the objectives of the Act. The 'need to know' approach should help protect the safety and privacy of all people, not simply those that know there is a risk in their particular case. In my view, there is some scope for enhancing the Electoral Act so that electoral roll details released generally to the public are more closely allied to those that the public really does 'need to know' and some details are solely retained for official electoral purposes or are released only to certain people having privileged access, such as researchers and political parties. Residential address 3.6 I recommend a change from the current practice of publishing full residential address. Obviously, full residential address details will still need to be obtained for electoral purposes. There is no privacy difficulty with those details being obtained and used for electoral purposes (such as on the roll used by officials on election day) but the suggestion is simply to omit them from the published roll. My proposal would not deny the full address details to political parties or other approved entities. Accordingly, the work of political parties and election officials would not in any way be impeded by the proposal. 3.7 My preferred option is that the entire address, other than suburb or town, be omitted from the printed roll. The published electoral roll would simply list the individuals who are registered for each electorate in alphabetical order with their suburb or town given. The publication of electoral details without full residential address is not unprecedented. In British Columbia, there is no requirement to publish full residential address on the municipal electoral roll and a recent review by the Information and Privacy Commissioner of British Columbia upheld a decision of a local authority to withhold those details in response to a request under their freedom of information legislation. The full address will, of course, remain on the roll used by poll clerks on election day ensuring that people of the same name are distinguished. 3.8 That recommendation may be seen as particularly radical and a break from the past. Notwithstanding that, I believe it is an option worthy of examination. The inclusion of suburb or town will, in many cases, enable people having the same name to be distinguished. However, in deference to the concerns that may be expressed at the radical nature of the proposal, I have an alternative option which will significantly enhance privacy although to a lesser extent than the preferred option. This is to include on the published roll, in addition to an elector's name the person's street and suburb or town (that is, include residential address with the exception of the house number or flat/apartment details). Use for non-electoral purposes 3.9 The second option will have only limited utility in enhancing personal safety and freedom from harassment (although I believe it will contribute to that) but, like the preferred option, will have significant effect in limiting the use of the roll for purposes having no relationship with the conduct of elections, namely: direct marketing; and tracing.
3.10 The electoral roll will, under either option, cease to be of any great use for direct marketing as a mailing list will not be able to be compiled by using the roll. At present, I believe that the electoral roll is often used for direct mailing of itself, or as a base list to which is added certain profiling details, such as telephone numbers and purchasing habits. The utility of the electoral roll for direct marketing will also be diminished if details of occupation are omitted since this indicates likely targets for marketing products or services whether by mail, or by door knocking. Under either option political parties could still carry out their direct mailings under their privileged statutory access to the full electronic electoral roll. 3.11 I expect that the electoral roll will continue to be used for tracing under the second option. It will enable individuals to be tracked to a particular district and street but will not of itself enable the individual's house to be identified. With respect to official tracing purposes, the government would need to decide on a case by case basis which officials and departments (if any) are to be given privileged address to full address detail for use for non-election purposes. It may be that given the compulsory nature of collection, and the importance of free and uninhibited democratic elections, that no such use will be authorised. However, if tracing uses are authorised it will at least be through an open and transparent process authorised through a democratic process and not simply through the availability of the published electoral roll. Such uses ought to be made known. 3.12 My recommendations concerning the publication of address details would also need to be considered in the context of the habitation index. The index could still be compiled but the availability for purchase would need to be restricted. This issue is further considered below.
3.13 The compiling of the jury list will not be affected by the proposed options since it is authorised by statute and does not rely upon the published roll. However, if there are any other official uses which are unlikely to affect the conduct of elections, there is no reason why the government could not seek to provide further statutory authority to use electoral information for non-electoral purposes. Such proposals would need to be carefully scrutinised by departmental and electoral officials, as well as Ministers, the Electoral Select Committed and, others such as me. The use for additional purposes will need to be made known to electors on the enrolment form. Enhancement of confidential roll.
3.14 Despite the recommendations just made, I believe that there will be a continuing need for a confidential roll. It is not sufficient comfort to a person who knows that they are the target of violence, to be told that only part of their address will be published and that therefore the likelihood of being traced is diminished. To confidently enrol to vote, those people must be assured that their details will not be released at all on the published roll. Therefore, I support the continuation of a confidential roll. I am pleased to note that its existence is now noted on the enrolment form and I have already recommended in this report that the form used in the roll revision should mention the confidential roll. I would support, and encourage, any further efforts that can be made to bring this right to the attention of those people who might benefit from it. Such work could be carried out in conjunction with making those people more aware of their rights to have details held confidentially in respect of other public registers.
3.15 Finally, I believe that there is a case to extend the confidential roll provisions beyond those people who fear for their personal safety to include those who fear harassment, short of violence, if their address details become known. I have raised these points in the context of the Harassment and Criminal Associations Bill and have recommended that the Registrar of Electors should be empowered to place a person on the confidential roll if that person has obtained a restraining order under that bill.
4. Other electoral roll issues
4.1 As already mentioned, the electoral roll is the key administrative tool for the conduct of elections. As will have been seen from the report to this point it is an accumulation of personal information carrying with it a variety of privacy risks and issues. In this section, I raise a variety of miscellaneous issues and observations in relation to the electoral roll.
4.2.1 Presently the electoral roll is published in paper form and available for purchase. The electronic version of the electoral roll is made available to certain authorised persons, most importantly local authorities, candidates and political parties. It is an offence for any person who supplies, receives or uses information derived from a electronic version of the electoral roll for any purpose other than a purpose authorised in sections 112, 113 or 114. There are also offences in respect of manipulating or processing the electoral information obtained in electronic form.
4.2.2 I support the retention of strict controls on who can have access to electoral information on computer tape, disk or diskette. I also support the continuation of offences relating to misuse of such information. However, the sections are in danger of being overtaken by developments in computer technology.
4.2.3 Section 116 setting out offences relating to the use of electoral information is based on a 1990 section of the former Electoral Act (and had earlier incarnations since 1981). However, in that short space of time, scanning has moved from being cutting edge technology employed by intelligence organisations and large multinationals into an ordinary piece of office technology for many New Zealand companies. In some small offices, scanners have replaced both the photocopier and the fax machine. It is possible - if not probable - that there will be a number of polling and direct marketing companies in New Zealand which will already have scanned all 65 volumes of the New Zealand electoral roll into their computers to create single national databases. To such a complete base can be added all sorts of data on individual New Zealanders.
4.2.4 I am reluctant to advocate criminal sanctions as a response to this issue as any suitable offences may be almost impossible to police. I would instead suggest that careful study be paid to my other suggestions which will decrease the attraction for those who might otherwise wish to scan the entire electoral roll. The key suggestions are to omit occupational details and residential address details. To my mind, those changes will be more effective than creating a offence which may be ignored. On the other hand, if those suggestions are accepted the importance of the continuing controls on the electronic versions of the roll, which will include the details omitted from the published roll, remain doubly important.
4.2.5 Officials might also find it useful to consider whether any new administrative safeguards are necessary to ensure that the electronic controls which currently exist in law are being complied with. This might involve randomly auditing the activities of political parties, researchers, local authorities and any others who are granted access to the electoral roll in electronic form. Normally I would suggest a statutory authority for the Registrar to seed the list with false names to uncover improper personal or commercial direct mailing use. However, this may create problems given that it may confuse political parties carrying out canvassing activities and would in essence involve the creation of an inaccurate or false entry on an electoral roll.
4.3.1 In New Zealand for many years the electoral roll has been used for compiling jury lists. The electoral roll has clear advantages for jury purposes being comprehensive and updated and maintained to a high degree of accuracy. Electoral enrolment is compulsory for eligible adults. There may be a link in people's minds between enrolment on the electoral roll and the rights and duties of citizenship, one of which is jury service. However, whatever the advantages or suitability of the electoral roll for jury purposes, it should be recognised that the information is being used for a quite different purpose from that to which it has primarily been obtained.
4.3.2 I was therefore pleased, with the 1996 revision of the electoral enrolment form at the inclusion of the straightforward explanation that 'the information is also used to compile jury lists'. Such an explanation has never previously appeared on the electoral enrolment form and I see it as an important step for reconciling this additional use with information privacy principle 3 and thus promoting openness in information collection practices.
4.3.3 The Department for Courts has been actively trying to enhance and modernise the jury management system. Part of this involved the means by which electoral roll information was transmitted from the Chief Registrar of Electors to various courts registrars. As the electoral roll is a public register it is subject to the four public register privacy principles. An issue was identified in relation to public register privacy principle 3 which provides: Electronic transmission of personal information from register Personal information in a public register shall not be made available by means of electronic transmission, unless the purpose of the transmission is to make the information available to a member of the public who wishes to search the register.
4.3.4 In order to ensure that there was no contravention of the principle, authority was obtained for the transmission of the information by electronic means for the purposes of compiling jury lists, through an amendment to the jury rules. Since the rules have status of regulations the authorisation is effective for the purpose of section 60(3) of the Privacy Act. I did not oppose the change since there was already clear legal authority for the disclosure of the information in primary legislation - the change simply dealt with the matter of the means of transmission. I was confident that the initiative would enhance an important area of public administration and steps had already been taken to communicate the use of the electoral roll for the compiling of the jury lists, through the revised enrolment form. The amendment to the jury rules was accompanied by new legal provisions emphasising the requirement to keep the jury list confidential.
5.0 Habitation index
5.1 A habitation index is an electoral roll in which the names of electors are shown under the numbers and addresses of the streets, or in country areas the localities, in which they are shown to be currently registered. The result is a roll which clearly indicates the name and number of electors currently registered in each dwelling.
5.2 Any person may, on paying the prescribed fee, obtain a copy of the habitation index. The ordinary purchase price is $100. The charge is reduced to $30 if the habitation index is required 'for any purpose relating to an election or poll that is required by or under any Act'. In other words, the current law anticipates that ordinary purchasers of the habitation index who pay the full price do not require the roll for any purpose relating to an election or poll carried out under statute.
5.3 I think the law should be changed so that the habitation index is not generally made available except to purchasers who need the habitation index for a purpose relating to an election or poll that is required by or under any Act. I think this change is desirable regardless of whether my suggestions as to the limitation of publication of residential address are to be given effect to. The current law simply puts a price on information that has been supplied to the government under compulsion of law and reformatted in a way that makes it very attractive for other purposes, such as for door to door sales.
5.4 The voter information has been reformulated into a habitation index for electoral purposes and I would not want my recommendation to undermine those purposes. However, I do not believe that there is any electoral purpose that the habitation index be made available generally. The index need only be made available to those bodies conducting elections under statute and to other authorised persons, such as candidates and political parties.
5.5 It may be helpful to briefly recount some of the background to the present law. The compilation of a habitation index has not always been part of our electoral law. Provision for a habitation index was introduced into the Electoral Act 1956 in a 1980 amendment. Provision was included as a result of recommendations of the Committee of Inquiry into the Administration of the Electoral Act which reported the previous year. The Committee of Inquiry indicated that there had been considerable support for the preparation of habitation index in the submissions it received and that party organisations in particular would welcome the preparation of such a document. It was also believed that electorate officers would be greatly helped out in their task of updating the roll if the habitation index was available.
5.6 The Committee of Inquiry provided a helpful description of the purposes for which a habitation index would be useful. I believe it may be useful to set that out as none of the purposes would require the sale of the habitation index to people not involved in the electoral process. The Committee noted that the advantages of the habitation index are that it:
(a) Highlights immediately any excessive number of registered voters at any particular street address, or in any particular dwelling, or the improper use of another person's address by an elector attempting to achieve dual registration.
(b) Gives an opportunity for the electorate office to investigate any situation such as (a) and to take the necessary action under ... the Act to purge the rolls of the names of people who are dead, permanently overseas or now resident in another electorate.
(c) Brings to notice those dwellings in respect of which there are no registered electors, or an unusually low number for the type of dwelling.
(d) Enables the electorate officer to investigate cases such as © and obtain new enrolments where applicable.
(e) Would act as a deterrent against people using false or non-existent addresses in order to obtain an improper registration, or more than one vote.
(f) Would help political canvassers to carry out roll checks and house calls, and enable them to assist in providing updated roll information.'
5.7 Each of the purposes set out by the Committee of Inquiry are legitimate reasons for the preparation and use of a habitation index. None requires a habitation index to be sold to people not involved in the electoral process. In my view, purchase of the habitation index should no longer be generally permissible except as outlined above. If there are legitimate purposes requiring access to the electoral roll which do not relate to an election or poll that is required by or under any Act, these should be identified and considered for specific authorisation if they are in the public interest.
6. Registration of political parties
6.1 The Electoral Act 1993 inaugurated a new system of registration of political parties. Like some other features of our electoral and political landscape it seems that this reform has a number of ramifications which were perhaps not fully appreciated by the Parliamentarians who enacted the new law or by the electors. It seems to me that the registration process, by accumulating lists of individual political affiliations in the hands of a public body, raises some significant privacy, and possibly constitutional, issues which to my mind are worthy of further scrutiny. Sensitivity of political affiliations.
6.2 The extent to which the membership of a political party is a matter that is proclaimed publicly or even a matter of public record varies between different individuals, societies and political cultures. However, history has taught many societies to be wary of publicly recording ordinary citizens' political affiliations. One can think of the unfairness of the patronage systems in some states or the ease with which certain totalitarian regimes have eliminated opponents whose membership of political parties is neatly recorded on file. A benevolent and tolerant society that takes little notice of one's political affiliations can easily be replaced by a less forgiving one.
6.3 Internationally, the sensitivity of political affiliation and record of political opinion is reflected in international instruments reaffirming rights to privacy. These instruments reflect international concern in relation to special categories of sensitive data (which includes information revealing political opinions) and emphasise that such information ought not be processed automatically or stored in a file generally accessible to third parties. The UN recommends that sensitive data (including information on political opinions) not be compiled if it is likely to give rise to unlawful or arbitrary discrimination. Our Human Rights Act 1993, which outlaws discrimination on the basis of political opinion, reflects some of those international concerns. Information about membership of a political party suggests information about the individual's political opinions. However the information is also sensitive simply by reason of the fact of membership.
6.4 Clearly there are sensitivities at a the national and international level relating to political opinion information and information about membership of political organisations. These concerns relate to evidence of actual past discrimination on this basis and the freedom to participate in political activity and to hold political beliefs. On an individual level such information can be intensely personal for many New Zealanders even in circumstances where discrimination is not in issue. Personal attitudes range between those people who proclaim their party membership through to others who consider it is such a private matter that it is not to be made known to other family members.
6.5 I wished to make these observations before addressing matters of detail in the Act. I do believe that membership of political parties is a matter of considerable sensitivity and needs to be approached on that basis. It is not an issue which should be approached casually or lightly.
Part IV of the Act
6.6 Part IV of the Electoral Act 1993 deals with the registration of political parties. It requires the Electoral Commission to establish and maintain a register of political parties and sets out procedures for applying for registration. A number of the application procedures do not involve personal information or the identification of political affiliations of members. I am not concerned with those. However, section 63(2) makes it clear that to be registered a party must have at least 500 current financial members who are eligible to enrol as electors. An applicant for registration must provide a declaration under the Oaths and Declarations Act 1957 that the party has at least that number of members. Section 66(3) of the Act makes it clear that for the purposes of exercising its powers in relation to registration, the Electoral Commission 'may require a political party supply to it a list of the party's current financial members.'
6.7 In my view, all that the Act anticipates in routine cases is a declaration that the party is of sufficient size. Clearly, if the Electoral Commission believes that a party may not be of sufficient size, notwithstanding the declaration, it may utilise its powers to require to see the party's membership list. However, others do not agree with my interpretation and see the Electoral Commission's demand for a list of members in every case as being satisfactory. I understand that the current practice is essentially that every application will be met with a request for a list of current financial members (or 1000 such members), or, as an alternative, for 500 individual declarations to be filed.
6.8 Accordingly, we have a process which has already gathered lists of at least 500 members for each party that is registered or has sought registration. In fact, even more names may be held by the Electoral Commission since some of the parties will have chosen to provide their entire list of members rather than statutory declarations from 500 members. I believe that the Electoral Commission has retained the lists for all parties registered for the 1996 election. 6.9 This is a matter of concern to me. I hasten to add that I do not in any way criticise the Electoral Commission's carrying out of existing statutory powers. Rather, I have concern at the combination of the way that the Act is written and the way that the Electoral Commission has chosen to exercise those statutory powers (in an entirely proper fashion but in a way that I believe makes the privacy concern more pressing). I do not believe that the Commission would willingly allow the lists of political affiliations to be disclosed to third parties for other than electoral purposes. However, one of the fundamental approaches to privacy protection is to ensure that large accumulations of sensitive personal data do not remain when there is no longer any on-going purpose for such retention. Information privacy principle 9 is a manifestation of this concern.
Reform of Part IV
6.10 In my view, it would be desirable to amend the relevant provisions of the Electoral Act so that: if possible, requirements which meet the reasonable needs of registration of political parties can be devised which will not require the accumulation of lists of political affiliations; if this is not possible, for the legislation to at least spell out that: o the Electoral Commission is not to retain information for longer than is necessary to carry out its functions; o the Electoral Commission should return the lists to the political parties when they are no longer required or destroy them; o while the information remains in the possession of the Electoral Commission it should be subject to a secrecy provision so that the Commission cannot be compelled to release the information to any person unless, in the Electoral Commission's opinion, it is required for electoral purposes authorised under the Electoral Act; and the information may not be placed in National Archives and therefore is not required to be retained for that purpose.
Alternative registration criteria
6.11 There are a variety of options to allow a party registration process which does not require lists of individuals. Whether these will suit New Zealand circumstances has more to do with electoral needs than privacy concerns. Therefore, I am not qualified to say whether any alternatives would suit New Zealand. However, I am aware that the parties can be registered under both the Australian and Canadian electoral laws in ways which would not require such an accumulation of lists of political affiliations. I am also aware that the Royal Commission on the Electoral System recommended registration requirements which would have required far fewer names to be accumulated. I will briefly outline these alternative approaches.
6.12 The Royal Commission which studied the matter of registration of political parties recommended that a party should be entitled to be registered if it had 200 members. The Electoral Law Committee which studied the Royal Commission's report in 1988 concluded that 200 members was the appropriate figure. In enacting the Electoral Act 1993 Parliament chose to raise that requirement to 500 members. In putting that requirement into operation the Electoral Commission has permitted parties to establish that they exceed the threshold by supplying 500 signed declarations, quite a cumbersome task, or by supplying a list of 1,000 names. Accordingly, what began as requirement that a party have 200 members (practically a token requirement given that a party might actually field 120 candidates) has reached the point where 1,000 names are supplied for checking purposes. Since each of those names must now be a qualified as a registered elector a party must exclude from consideration those legitimate members who are not qualified to vote (which may create a problem for a party predominantly seeking to reflect the political aspirations of young people or prisoners).
6.13 In Australia, Part XI of the Commonwealth Electoral Act deals with registration of political parties. In that country, with a population six times the size of New Zealand, an eligible political party must have at leat 500 members - the same as applies in New Zealand. Scaled down one might consider that a threshold of 100 might be suitable for New Zealand.
6.14 Accordingly, one option for devising a new set of registration criteria, one change which might be considered is to drop the qualifying number of members to 100 or 200. Simply dropping the threshold is not a total solution to the concern that I raise but it would minimise the problem for two reasons: the Electoral Commission would be less likely to have suspicions as to an overly small party, since fewer parties should have any difficulty meeting the threshold; for those for which a suspicion is raised, the Electoral Commission will require fewer names to be supplied (perhaps 200 statutory declarations or a list of 300 names).
6.15 The Commonwealth Electoral Act provides that a political party is eligible for registration if, as an alternative to having 500 members, it is a 'Parliamentary party'. A 'Parliamentary party' means a political party at least one member of which is a Member of Parliament. I understand that the requirement for registration of a party in Canada involves the party simply having 50 candidates. If a similar approach to Australia or Canada was taken in New Zealand it would be unnecessary in some cases for the Electoral Commission to obtain any lists of members.
6.16 I cannot be sure that either the Canadian or Australian requirements are suitable for the New Zealand electoral process. However, I bring forward those precedents for consideration since they suggest that alternatives can be devised which do not involve the state accumulating lists of political affiliations of individuals.
Power to require lists
6.17 As an alternative or supplement to changing the criteria for registration of political parties, consideration could be given to Parliament spelling out more clearly whether lists of party members should be obtained as a routine matter on registration of political parties. The legislation could, for instance, be amended to make it clear that the Electoral Commission is only to exercise its powers under section 66(3), to require the supply of a list of the party's current financial members, where it has reason to believe that the political party may have insufficient members to be registered or to have its registration continued.
Safeguarding lists obtained
6.18 If the current criteria are retained, or criteria are adopted which still require a party to have a minimum number of members, there will be a continuing need on occasion for the Electoral Commission to obtain lists of members for checking purposes. In such cases, I believe that absolute guarantees need to be given to people participating in the political process that that information will not leave the possession of the Electoral Commission unless necessary for the Commission to carry out its lawful functions. The problems that I identify in this regard are that: the Electoral Commission does not have a secrecy provision which would guarantee that information would be withheld in the case of a request made with some lawful authority; the Electoral Commission might, of its own initiative, choose to disclose the information to another agency and the Act does not specifically prohibit that; o the Electoral Commission might perceive that it is bound by the Archives Act to retain the information and ultimately, if the Chief Archivist determines, deposit those records in National Archives.
6.19 In my view, it would be desirable for the legislation to be amended so that: it is made clear the Electoral Commission is not entitled to retain the details indefinitely beyond the completion of the necessary functions conferred on it; the lists should be subject to a secrecy provision while in the custody of the Electoral Commission so that it cannot be compelled to release the information for other than electoral purposes; the Act should make it clear that the information is not to be released for other than electoral purposes; consideration should be given to amending the Archives Act to make clear that, like ballot papers, lists of political affiliations gathered under section 66(3) are not to be deposited in archives; when no longer required for Electoral Act purposes the lists and declarations are returned to the political parties or destroyed.
7.0 Summary of recommendations
7.1 The enrolment form should be revised to make clear: the consequences for the individual if all or any part of the information is not provided; the purpose for requesting neighbours' and landlords' names in Section E.
7.2 The need to collect details of occupation for electoral purposes should be re-examined and, if no longer required, consideration should be given to: (a) ceasing to collect such details on the enrolment form or; (b) make the supply of occupation details voluntarily and explain the use to which that information will be put and to whom the information will be given; or (c) continue to make the provision of occupational details mandatory but explain more clearly the reasons for which the information is collected and the fact that they are not required for official electoral purposes.
7.3 The enquiry roll revision form should be revised so as to: (a) provide each of the explanations anticipated by information privacy principle 3; and (b) advise enrolled electors of the availability of the confidential roll provisions. Referenda and other electoral uses
7.4 When next the enrolment form is revised consideration should be given to making it clear that the information collected on the enrolment form is used on occasion: for the conduct of referenda; and for certain other purposes introduced by the Electoral Amendment Act 1995.
Publication of residential address
7.5 Each elector's full residential address should no longer appear on the published roll but instead solely be held for official purposes and for release to authorised recipients. Consideration should be given to: (a) omitting residential address and displaying only the elector's suburb or town; or (b) displaying the elector's address but omitting the house/apartment/flat identifier.
7.6 Consideration should be given to allowing individuals to obtain a confidential listing under section 115 if they have a reasonable fear that they will be the subject of harassment if their details are published on the electoral roll. Controls on electronic electoral roll.
7.7 I suggest that consideration be given to the continuing effectiveness of the controls on the use of the electronic electoral roll, including the possibility of hard copies of the electoral roll being scanned into computers, and any desirable changes to the law or administrative practice to ensure that existing controls remain effective.
7.8 The habitation index should no longer be made available for sale to those who do not require it for purpose related to an election or poll or for some other public interest specifically identified and authorised by law.
Registration of political parties
7.9 (a) Consideration should be given to changing the statutory requirements governing registration of political parties so that the Electoral Commission has greater discretion to adopt practices which do not require the obtaining of extensive lists of political affiliations of individuals. (b) If a registration process remains which anticipates the Electoral Commission obtaining lists of political affiliations: # (i) the law should make clear that the Electoral Commission is not to retain the details indefinitely beyond the completion of the necessary functions conferred on the Commission; # (ii) the lists should be subject to a secrecy provision while in the custody of the Electoral Commission so that it cannot be compelled to release the information for other than electoral purposes; and # (iii) consideration should be given to amending the Archives Act to make clear that, like ballot papers, lists of political affiliations are not to be retained for deposit in National Archives.
B H Slane Privacy Commissioner
29 April 1997