Our reference: FOI 23-215
Ryan J. Austin
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Austin
Decision on your Freedom of Information Request
I refer to your request of 24 March 2023, to the Classification Board (the Board), seeking access to documents
under the
Freedom of Information Act 1982 (FOI Act).
1
Authority to make decision
I am authorised to make decisions in relation to Freedom of Information requests under section 23(1) of the
FOI Act.
2
Material taken into consideration
In making my decision, I had regard to the following:
• the terms of your request
• the content of the documents captured by your request
• the provisions of the FOI Act
• the guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act
(the FOI Guidelines)
• advice from officers with responsibility for the subject matter contained in the documents captured
by your request
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Scope of your request
You requested access to:
• ACMA 2009000868 ITEM 1 (File number: T09/4244)
• ACMA 2010001752 ITEM 1 (File number: T10/4021)
• ACMA 2011005107 ITEM 1 (File number: T11/5360)
• ACMA 2011005622 ITEM 1 (File number: T11/5873)
• ACMA 2012000078 ITEM 1 (File number: T12/0111)
• ACMA 2012002110 ITEM 1 (File number: T12/2681)
• ACMA INV-0000-2718 (File number: T13/2387)
• ACMA INV-0000-2758 (File number: T13/2343)
link to page 8
• ACMA INV-0001-0458 (File number: T14/0590)
• ACMA 2012002558 ITEM 1 (File number: T12/2870)
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Decision
I have identified ten documents that are relevant to your request. These documents were in the possession of
the Board when your request was received.
I have decided to grant partial access to ten documents.
A schedule setting out the documents relevant to your request, with my decision in relation to those
documents, is at
ATTACHMENT A.
My reasons for refusing access to information that is relevant to your request are set out below.
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Finding of facts and reasons for decision
My findings of fact and reasons for deciding that the exemptions identified in the schedule of documents apply
to parts of the documents are set out below.
5.1 Section 37 - documents affecting enforcement of law and protection of public safety
Section 37(2)(c) of the FOI Act provides that a document is an exempt document if its disclosure would, or could
reasonably be expected to prejudice the maintenance or enforcement of lawful methods for the protection of
public safety.
Paragraph 5.1116 of the FOI Guidelines states:
5.116
The words ‘public safety’ do not extend beyond safety from violations of the law and breaches
of the peace. The AAT has observed that ‘public safety’ should not be confined to any particular
situation, such as civil emergencies (bushfires, floods and the like) or court cases involving the
enforcement of the law. The AAT also noted that considerations of public safety and lawful
methods will be given much wider scope in times of war than in times of peace.
In relation to the test
would or could reasonably be expected, paragraphs 5.16-5.18 of the FOI Guidelines state:
5.16
The test requires the decision maker to assess the likelihood of the predicted or forecast event,
effect or damage occurring after disclosure of a document.
5.17
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires
analysis of the reasonable expectation rather than certainty of an event, effect or damage
occurring. It may be a reasonable expectation that an effect has occurred, is presently
occurring, or could occur in the future.
5.18
The mere risk, possibility or chance of prejudice does not qualify as a reasonable expectation.
There must, based on reasonable grounds, be at least a real, significant or material possibility
of prejudice.
The Board makes decisions relating to the classification of publications, films and computer games under the
Classification (Publications, Films and computer Games) Act 1995 (the Classification Act), the
National
Classification Code (the Code) and the
Guidelines for the Classification of Films and Computer Games 2005 (the
Guidelines).
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Paragraph 1 of the Code provides that:
1.
Classification decisions are to give effect, as far as possible, to the following principles:
(a) adults should be able to read, hear, see and play what they want;
(b) minors should be protected from material likely to harm or disturb them;
(c) everyone should be protected from exposure to unsolicited material that they find offensive;
(d) the need to take account of community concerns about:
(i) depictions that condone or incite violence, particularly sexual violence; and
(ii) the portrayal of persons in a demeaning manner.
Paragraph 4, Item 1 of the Code provides that computer games that depict, express or otherwise deal with
matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such
a way that they offend against the standards of morality, decency and propriety generally accepted by
reasonable adults to the extent that they should not be classified should be Refused Classification (RC).
Each state and territory has classification enforcement legislation to complement the Classification Act and
provides for offences in relation to the exhibition and sale of RC computer games.
The document contains detailed descriptions of the content of the computer game being reviewed for
classification purposes and reflect the reasons for the Board’s decision to not classify the computer game and
for it to be RC.
I am satisfied that disclosure of parts of document 1 marked ‘s37(2)(c)’ would, or could reasonably be expected
to, prejudice the maintenance or enforcement of lawful methods for the protection of public safety. I am further
satisfied that disclosure of this information would result in real, significant or the material possibility of
prejudice to the protection of maintenance or enforcement of lawful methods for the protection of public
safety.
For the reasons outlined above, I decided that the parts of document 1 marked ‘s37(2)(c)’ are exempt from
disclosure under section 37 of the FOI Act.
5.2 Section 47E - Documents affecting certain operations of agencies
Section 47E of the FOI Act provides that a document is conditionally exempt if its disclosure would, or could
reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Paragraph 6.120 of the FOI Guidelines states:
An agency’s operations may not be substantially adversely affected if the disclosure would, or could
reasonably be expected to lead to a change in the agency’s processes that would enable those processes
to be more efficient. For example, in Re Scholes and Australian Federal Police [1996] AATA 347, the AAT
found that the disclosure of particular documents could enhance the efficiency of the Australian Federal
Police as it could lead to an improvement of its investigation process.
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Paragraph 6.123 of the FOI Guidelines states that the predicted effect must bear on the Board’s ‘proper and
efficient’ operations, that is, the Board is undertaking its expected activities in an expected manner. Where
disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional
exemption will not be met and the conditional exemption will not apply.
As outlined above, the Board is responsible for assessing and making decisions relating to the classification of
publications, films and computer games under the Classification Act. Disclosure of the descriptive content of
the computer game that depicts, expresses or otherwise deals with matters specified in the Code; and/or
describes or depicts computer game content in a way that is likely to offend against the standards of morality,
decency and propriety generally accepted by reasonable adults to the extent that they should not be classified
would disclose information that the Board has decided should not be classified under the Classification Act and
should be Refused Classification (RC). The disclosure of that descriptive content would subvert the classification
process by revealing content likely to cause offence to a reasonable adult.
I am satisfied that the parts of the documents marked ‘s47E(d)’ contain information which, if disclosed, would
or could reasonably be expected to, have a substantial and an unreasonable effect on the Board’s proper and
efficient operations. These are operational activities that are being undertaken in an expected and lawful
manner, and would not reveal inefficiencies in the way in which the Board conducts those operational activities.
For the reasons outlined above, I decided that parts of the documents marked ‘s47E’ are conditionally exempt
from disclosure under section 47E of the FOI Act.
Where information is found to be conditionally exempt, I must give access to that information unless access at
this time would, on balance, be contrary to the public interest. I have addressed the public interest
considerations below.
5.3 Public interest considerations
Pursuant to section 11A(5) of the FOI Act, I must give access to conditionally exempt information unless access
to that information at that time would, on balance, be contrary to the public interest. I have therefore
considered whether disclosure of the conditionally exempt information would be contrary to the public interest.
I note that paragraph 6.5 of the FOI Guidelines states that the public interest test is considered to be:
• something that is of serious concern or benefit to the public, not merely of individual interest
• not something of interest to the public, but in the interest of the public
• not a static concept, where it lies in a particular matter will often depend on a balancing of interests
• necessarily broad and non-specific and
• relates to matters of common concern or relevance to all members of the public, or a substantial
section of the public.
Factors favouring disclosure
Section 11B of the FOI Act provides that factors favouring access to conditionally exempt information in the
public interest include whether access to that information would do any of the following:
• promote the objects of the FOI Act (including all matters set out in sections 3 and 3A)
• inform debate on a matter of public importance
• promote effective oversight of public expenditure
• allow a person to access his or her own personal information.
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Having regard to the above, I consider that disclosure of the conditionally exempt information at this time:
• would provide access to documents held by an agency of the Commonwealth which would promote
the objects of the FOI Act by providing the Australian community with access to information held by
the Australian Government.
• would not inform debate on a matter of public importance
• would not promote effective oversight of public expenditure
• would not allow you access to your own personal information.
Factors weighing against disclosure
I consider that the following factors weigh against disclosure of the conditionally exempt information at this
time, on the basis that disclosure:
• could reasonably be expected to prejudice security, law enforcement, public health or public safety
• could reasonably be expected to prejudice the Board’s responsibilities relating to the assessment of
publications, films and computer games under the Classification Act, with disclosure of the
conditionally exempt material undermining the decision made to refuse classification to the film
• would subvert the purpose for which this film was refused classification by revealing content likely to
cause offence to a reasonable adult; or promote, incite or instruct in matters of crimes of violence
In making my decision, I have not taken into account any of the irrelevant factors set out in section 11B(4) of
the FOI Act, which are:
(a)
access to the conditionally exempt information could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the Commonwealth Government
(b)
access to the conditionally exempt information could result in any person misinterpreting or
misunderstanding that information
(c)
the author of the document was (or is) of high seniority in the agency to which the request for
access to the document was made
(d)
access to the conditionally exempt information could result in confusion or unnecessary debate.
Conclusion – disclosure is not in the public interest
For the reasons set out above, after weighing all public interest factors for and against disclosure, I decided
that, on balance, disclosure of the conditionally exempt information would be contrary to the public interest. I
am satisfied that the benefit to the public resulting from disclosure of the conditionally exempt information is
outweighed by the benefit to the public of withholding that information.
5.4 Section 22 – deletion of irrelevant and/or exempt material
Section 22 of the FOI Act applies to documents containing irrelevant and/or exempt material and allows an
agency to delete such material from a document.
I decided that the documents captured by your request contain material which can reasonably be regarded as
irrelevant to your request. As such, an edited copy of those documents has been prepared in accordance with
section 22(1)(a)(ii) of the FOI Act. This information is marked ‘s22’ in the documents released to you.
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link to page 9
The documents contain personal identifiers of public servants. When your request was acknowledged, we
notified you that personal information of public servants below the SES level and all email addresses, signatures
and direct telephone numbers would be considered irrelevant to the scope of your request unless you told us
that you were expressly seeking access to that information. On the basis that you did not notify us otherwise,
I decided this information is irrelevant to your request and it has been deleted under section 22 of the FOI Act
as outlined above.
In addition, as I decided that some information you have requested is exempt from disclosure, I have prepared
an edited copy of the documents being released by deleting the exempt information under section 22(1)(a)(i)
of the FOI Act.
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Legislative provisions
The FOI Act, including the provisions referred to in my decision, are available on the Federal Register of
Legislation website:
www.legislation.gov.au/Series/C2004A02562.
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Your review rights
Your review rights in relation to this decision are set out at
ATTACHMENT B.
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Publication of material released under the FOI Act
Where I have decided to release documents to you, the Board may also publish the released material on its
Disclosure Log. The Board will not publish personal or business affairs information where it would be
unreasonable to do so.
For your reference the Board’s Disclosure Log can be found here:
www.infrastructure.gov.au/about-
us/freedom-information/freedom-information-disclosure-log.
Further information
The Department of Infrastructure, Transport, Regional Development, Communications and the Arts (the
Department) provides administrative assistance to the Board in relation to FOI requests. If you require further
information regarding this decision, please contact the Department’s FOI Section at
xxx@xxxxxxxxxxxxxx.xxx.xx.
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Yours sincerely
Fiona Jolly
Director
24 April 2023
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ATTACHMENT A.
SCHEDULE OF DOCUMENTS FOI 23-215
Doc
Date of
Description of document
Num of
Decision on
Provision
No.
document
Pages
access
of FOI
Act
1.
21-Aug-09
Decision Report
4
Partial access
s22
ACMA 2009000868 ITEM 1
s37(2)(c)
File No: T09-4244
s47E(d)
2.
13-Sep-10
Decision Report
3
Partial access
s22
ACMA 2010001752 ITEM 1
File No: T10-4021
3.
3-Nov-11
Decision Report
4
Partial access
s22
ACMA 2011005107 ITEM 1
s47E(d)
File No: T11-5360
4.
13-Dec-11
Decision Report
4
Partial access
s22
ACMA 2011005622 ITEM 1
s47E(d)
File No: T11-5873
5.
23-Jan-12
Decision Report
4
Partial access
s22
ACMA 2012000078 ITEM 1
s47E(d)
File No: T12-0111
6.
13-Aug-12
Decision Report
4
Partial access
s22
ACMA 2012002110 ITEM 1
s47E(d)
File No: T12-2681
7.
14-Sep-12
Decision Report
4
Partial access
s22
ACMA 2012002558 ITEM 1
s47E(d)
File No: T12-2870
8.
23-Aug-13
Decision Report
4
Partial access
s22
ACMA INV-0000-2718
File No: T13-2387
9.
23-Aug-13
Decision Report
4
Partial access
s22
ACMA INV-0000-2758
File No: T13-2343
10.
10-Mar-14
Decision Report
4
Partial access
s22
ACMA INV-0001-0458
File No: T14-0590
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ATTACHMENT B.
YOUR REVIEW RIGHTS
If you are dissatisfied with my decision, you may apply for a review of it.
Information Commissioner review or complaint
You have the right to seek a review by the Information Commissioner of this decision.
An application for IC review must be made in writing to the Office of the Australian Information Commissioner
(OAIC) within 60 days of the decision.
If you are not satisfied with the way we have handled your FOI request, you can lodge a complaint with the
OAIC. However, the OAIC suggests that complaints are made to the agency in the first instance.
While there is no particular form required to make a complaint to the OAIC, the complaint should be in writing
and set out the reasons for why you are dissatisfied with the way your request was processed. It should also
identify the Classification Board as the agency about which you are complaining.
You can make an IC review application or make an FOI complaint in one of the following ways:
• online at www.oaic.gov.au/freedom-of-information/reviews-and-complaints/
• via email to xxxxx@xxxx.xxx.xx
• by mail to GPO Box 5218 Sydney NSW 2001, or
• by fax to 02 9284 9666.
More information about the Information Commissioner reviews and complaints is available on the OAIC website
here: www.oaic.gov.au/freedom-of-information/foi-review-process.
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