We can’t tell you what our advice to the government was because it might be controversial. Essentially, that’s the response from the Australian Electoral Commission to a Freedom of Information request I made earlier this year.

The request was aimed at finding out how the AEC – the statutory body with responsibility for protecting the independence and fairness of the electoral process – advised the Howard Government over its moves to amend the law to guillotine the time allowed for new voters to join the electoral roll once an election is called.

The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act , drawn up by Senator Eric Abetz and his controversy-prone sidekick Dr Peter Phelps on the basis of the recommendations of a government-dominated Senate inquiry, was one of the nastier bills to be rushed through parliament after the government took control of the Senate.

Tens of thousands of first-time voters have been disenfranchised by the changes. It’s no coincidence that these people – mainly in their late teens and early twenties – are much less likely to vote for the Coalition than are older voters. The legislation also took away prisoners’ voting rights (which were recently restored by the High Court) and significantly lifted the threshold for disclosure of political donations.

So what was the AEC advice to the government about these changes? In March this year I lodged an FOI request to try to find out. Yesterday, just two days before the first election under the new rules, the AEC finally responded, denying access to any of the three relevant documents. Acknowledging the extraordinary and unexplained delay, the AEC waived an outstanding fee of $242.30.

The grounds for refusing to release the documents were legal professional privilege and the catch-all “internal working documents” exemption. In the case of two documents, the AEC argued that revealing them might:

… embroil the AEC in political controversy whereby the AEC’s advice may be used to legitimise or attack particular policy positions… The disclosure of the two briefs would not be in the public interest as it could be used to draw the AEC into policy debates between political candidates. This could have the effect of undermining the perception of the AEC as independent and neutral.

In fact it was the AEC’s own action in reversing its long-held opposition to the early closure of the electoral roll that first opened up the question of the its independence.

The AEC played a puzzling role right through the debate about the legislation. When the government argued that the existing Act created an enormous workload for the Commission in the week after an election is called, and that this increases the opportunity for fraud, the relatively new Electoral Commissioner, Ian Campbell agreed. He did so despite the fact that the AEC has argued for years against any reduction in the period of grace.

Something changed in the meantime. Or did it?

In its submission to a parliamentary inquiry in 2000, for example, the AEC said that:

… early close of the rolls will not improve the accuracy of the rolls for an election. In fact, the expectation is that the rolls for the election will be less accurate, because less time will be available for existing electors to correct their enrolments and for new enrolments to be received.

The AEC added that such a move would “undoubtedly have a negative impact on the franchise, an outcome which the AEC cannot support.”

My FOI request aimed to find out which of these two contrasting opinions the AEC offered when it was asked for its input during the drafting of the 2006 Bill. I sought details of any advice the AEC had given in relation to the two most contentious recommendations of the Senate committee – the early closure and the donation threshold.

Document 1, according to the AEC, is exempt from release on the ground of the “legal professional privilege” which “attaches to a document if the document is a confidential communication between a client and a client’s legal adviser for the dominant reason of giving legal advice”. This is far from convincing: the relationship between the AEC and the government is not akin to the relationship between a lawyer and a client.

The AEC’s case for withholding Documents 2 and 3 is a little more complicated. Because they are “in the nature of or relating to opinion, advice, recommendation, consultation or deliberation occurring as part of the deliberative processes or functions of an agency, a minister or government” the documents could only be released if it was in the public interest to do so.

In this case, says the AEC, the public interest argument does not apply because:

Disclosure of these documents is likely to disclose material that subsequently formed part of the policy deliberations of Cabinet and the Prime Minister. As these deliberative processes need to be protected, it is not in the public interest to provide access to this document.

The AEC is drawing a long bow. Cabinet documents might be exempt from disclosure, but a document that feeds into the process that produces a cabinet document is another thing altogether.

Finally, as we’ve seen, the AEC argued that the disclosure of the briefs might embroil it in political controversy and undermine its independent role. And it ended on an Orwellian note: once they had deleted the exempt and irrelevant parts of a document, said the AEC, there was so little left that it wasn’t worth releasing the rest. At this stage in the debate, the AEC’s neutrality would have been better demonstrated by disclosure rather than secrecy.

The next step is an appeal against the AEC’s decision. Stay tuned.