Your Ref
Our Ref
LEX638
Me
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Me
Your Freedom of Information request - decision
I refer to your request, received by the Department of Education (department) on 17 April
2023, and revised on 5 July 2023, for access under the
Freedom of Information Act 1982 (FOI
Act) to the fol owing documents:
1. Any emails or written correspondence that are:
a. dated 7 March - 29 November 2022, and
b. related to the amendment to s 67CC(2) (including documents that do not directly
mention s 67CC(2) but form part of the considerations that resulted in an
amendment to s 67CC(2) being sought), and
c. not already released via [FOI request to Services Australia with reference number]
LEX71589, and
d. sent or received by an entity acting on behalf of the Department of Education
(e.g., employee, contractor, etc.). This includes emails or written correspondence
sent directly to or received directly from an external source (e.g., a minister's office).
2. Any documents in the possession of the Department of Education that explain or could be
perceived to explain why, from page 2, 'we [the Department of Education?] are looking at
amending s 67CC(2)(d)'
3. Any documents in the possession of the Department of Education that confirm who the
'we' is in 2 above
4. Any documents in the possession of the Department of Education, not covered by point 2
above, that provide information as to what caused, prompted, or contributed to, the
Department of Education making the 28 July 2022 request for advice (page 2).
5. I am not clear whether the 'comprehensive layperson explanation for internal use only'
was later published. Assuming it was not published, or that the internal version is different to
the published version, I request the final version of the 'comprehensive layperson
explanation for internal use only'.
GPO Box 9880, Canberra ACT 2601 | Phone 1300 488 064 | www.education.gov.au | ABN 12 862 898 150
6. A document setting out, from page 5, any/al 'Minister's Rule changes by 1 July 2023' that
are consequent to or otherwise relate to the amendment to s 67CC(2)
7. [A document containing] The names of any CCS claimants, where the Department of
Education considered those claimants' claims as part of considering s 67CC(2) amendments
(e.g., as an example of why the amendment was needed, or a case study of what the
amendment would achieve, or similar). I wil grant extensions of time to consult with the
relevant third party CCS claimants
8. To the extent not included in point 5 above, a copy of (from page 9) 'the taper graph
demonstrating the new CCS rates and a very handy layperson explanation of the
amendments in the ED'
9. Documents that set out why the Department of Education thought it mattered to make it
so that, from page 15 at [73], 'It would not matter whether or not the child received care for
which another individual was receiving CCS.'
10. Documents that set out why, from page 15 at [74], the 'policy intent' needed to be
clarified.
11. Documents… that consider and/or justify, from page 15 at [75], the retrospective
application of the amendment.
My decision
Parts 1, 2 and 5 of your request
The department holds 6 documents (totalling 53 pages) that fall within the scope of these
parts of your request.
I have decided to:
• grant you
access in full to two documents (Part 2, Document 2; Part 5, Document 1)
•
refuse access to four documents (Part 1, Document 1; Part 1, Document 2; Part 1,
Document 3; Part 2, Document 1).
I have decided that certain documents and parts of documents that you have requested are
exempt under the FOI Act because they contain:
• material subject to legal professional privilege (section 42 exemption)
• matter in the nature of, or relating to, opinion, advice or recommendation obtained,
prepared or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purposes of, the deliberative processes involved with the
functions of an agency, the disclosure of which would be contrary to the public
interest (section 47C conditional exemption)
2
• material, the disclosure of which would, or could reasonably be expected to, have a
substantial adverse effect on the proper and efficient conduct of the operations of
an agency and would be contrary to the public interest (section 47E(d) conditional
exemption).
A schedule of the documents and the reasons for my decision are set out at
Attachment A.
To assist your review of the documents, I have scheduled the documents by corresponding
the document to the part of your request to which the document relates, for example, ‘Part
1, Document 1’.
Parts 3, 6 and 7 of your request
I have decided to refuse these parts of your request pursuant to subparagraph 24A(1)(b)(ii)
of the FOI Act on the basis that I am satisfied that the documents you have requested at
these parts do not exist within the department.
Parts 4, 9, 10 and 11 of your request
I am advised that the documents captured by these parts of your request are the same as
those that relate to parts 1, 2 and 5. Accordingly, to avoid duplication, I have set out where a
document relates to more than one part of your request and the part to which the
document relates in the schedule of documents in
Attachment A.
Part 8 of your request
I am advised that the ‘taper graph’ referred to in part 8 of your request is publicly available
in the Family Assistance Legislation Amendment (Cheaper Child Care) Bill 2022 and can be
accessed on the Australian Parliament House website using the fol owing link: Bills Digest 21,
2022-23 - Family Assistance Legislation Amendment (Cheaper Child Care) Bill 2022.
(aph.gov.au).
Charge
On 10 July 2023, the department made a preliminary assessment of the charge payable to
process your further revised request in the amount of $125.00. On 3 August 2023, the
department received payment in ful .
I have assessed the charge under regulation 10 of the
Freedom of Information (Charges)
Regulations 2019 and the cost of processing your request exceeded the amount estimated.
Accordingly, I have fixed the charge under this provision.
How we wil send your documents
The documents released to you in accordance with this decision are attached.
You can ask for a review of my decision
3
If you disagree with any part of the decision, you can ask for a review. There are two ways
you can do this. You can ask for an internal review by the department or an external review
by the Australian Information Commissioner.
You can find information about your rights of review under the FOI Act, as well as
information about how to make a complaint at
Attachment B.
Further assistance
If you have any questions, please email xxx@xxxxxxxxx.xxx.xx.
Yours sincerely
Alison
Authorised decision maker
Freedom of Information Team
Department of Education
15 August 2023
4
Irrelevant material deleted under s 22,
including material already released in
response to LEX71589 and non-SES
employee names and contact details.
Document 3
6
18 August
Email chain including emails
Refuse access
s 42
Material subject to legal professional
2022
between the department and the
privilege deleted under s 42.
Office of Parliamentary Counsel
and internal email
Irrelevant material (non-SES employee
correspondence, plus two
names and contact details and SES
attachments
employee telephone numbers) deleted
under s 22.
Part 2
I am advised that the documents captured by this part of your request are the same as those that relate to parts 4 and 10 of your request.
Document 1
5
7 September Internal email chain
Refuse access
s 42
Material subject to legal professional
2021
privilege deleted under s 42.
Irrelevant material deleted under s 22.
Document 2
2
1 July 2022
Internal email chain
Grant access in
N/A
Irrelevant material, including non-SES
full
employee names and contact details
and SES employee email address,
deleted under s 22.
Part 5
6
I am advised that the document captured by this part of your request is the same as the document that relates to part 11 of your request.
Document 1
27
Undated
Family Assistance Legislation
Grant access in
N/A
N/A
Amendment (Plan for Cheaper
full
Child Care) Bill 2022 – lay person
explanation of amendments
7
REASONS FOR DECISION
What you requested
1. Any emails or written correspondence that are:
a. dated 7 March - 29 November 2022, and
b. related to the amendment to s 67CC(2) (including documents that do not directly
mention s 67CC(2) but form part of the considerations that resulted in an
amendment to s 67CC(2) being sought), and
c. not already released via [FOI request to Services Australia with reference number]
LEX71589, and
d. sent or received by an entity acting on behalf of the Department of Education
(e.g., employee, contractor, etc.). This includes emails or written correspondence
sent directly to or received directly from an external source (e.g., a minister's office).
2. Any documents in the possession of the Department of Education that explain or could be
perceived to explain why, from page 2, 'we [the Department of Education?] are looking at
amending s 67CC(2)(d)'
3. Any documents in the possession of the Department of Education that confirm who the
'we' is in 2 above
4. Any documents in the possession of the Department of Education, not covered by point 2
above, that provide information as to what caused, prompted, or contributed to, the
Department of Education making the 28 July 2022 request for advice (page 2).
5. I am not clear whether the 'comprehensive layperson explanation for internal use only'
was later published. Assuming it was not published, or that the internal version is different to
the published version, I request the final version of the 'comprehensive layperson
explanation for internal use only'.
6. A document setting out, from page 5, any/al 'Minister's Rule changes by 1 July 2023' that
are consequent to or otherwise relate to the amendment to s 67CC(2)
7. [A document containing] The names of any CCS claimants, where the Department of
Education considered those claimants' claims as part of considering s 67CC(2) amendments
(e.g., as an example of why the amendment was needed, or a case study of what the
amendment would achieve, or similar). I wil grant extensions of time to consult with the
relevant third party CCS claimants
8. To the extent not included in point 5 above, a copy of (from page 9) 'the taper graph
demonstrating the new CCS rates and a very handy layperson explanation of the
amendments in the ED'
9. Documents that set out why the Department of Education thought it mattered to make it
so that, from page 15 at [73], 'It would not matter whether or not the child received care for
which another individual was receiving CCS.'
10. Documents that set out why, from page 15 at [74], the 'policy intent' needed to be
clarified.
GPO Box 9880, Canberra ACT 2601 | Phone 1300 488 064 | www.education.gov.au | ABN 12 862 898 150
11. Documents… that consider and/or justify, from page 15 at [75], the retrospective
application of the amendment.
12. Copies of any emails or written correspondence related to [FOI request to Services
Australia with reference number] LEX71589 that were sent or received by an SES or
equivalent (regardless of which department the SES worked for, and regardless of whether
they were in the 'to', 'from, 'cc', or 'bcc' field).
13. Copies of any emails or written correspondence related to [FOI request to Services
Australia with reference number] LEX71589 that were sent or received by a minister,
minister's office, or ministerial staff (regardless of which minister, and regardless of whether
they were in the 'to', 'from, 'cc', or 'bcc' field).
14. Correspondence internal to the Department of Education related to [FOI request to
Services Australia with reference number] LEX71589
15. Correspondence sent to/from the Department of Education/Services Australia and vice
versa related to [FOI request to Services Australia with reference number] LEX71589
On 20 April 2023, the department advised you that it would treat the names, signatures,
position titles and contact details of Commonwealth employees as irrelevant in accordance
with section 22 of the FOI Act unless you advised otherwise.
On the same day, you responded to this email and advised as follows:
I’m happy for APS and EL staff details to be redacted.
For SES, I don’t agree to their names being redacted (although I do agree) to redacting their
context numbers and similar).
On 1 May 2023, the department sent you a preliminary assessment of the charge payable to
process your request. On the same day, you asked for further information about how the
charge was calculated.
On 2 May 2023, the department provided you with a further explanation about the basis on
which the preliminary assessment of the charge payable for the processing of your request
was calculated. The department also responded to your question about whether one part of
your request accounted for the majority of the pages captured by the scope of your request
by advising you that the majority of pages fall within the scope of part 15 of your request.
On the same day, you asked whether excluding part 15 from the scope of the request would
be ‘sufficient to fall under the charge threshold and/or for DoE to voluntarily waive the
charge.’
The department provided you with further information about the basis on which charges are
calculated, including that there is no ‘charge threshold’ in the manner you described in your
2 May 2023 email. The department also advised you that it would recalculate the charge if
you were to revise the terms of your request to remove part 15.
On 4 May 2023, you provided commentary about the FOI process and asked whether the
department ‘intends to continue requiring a processing charge.’
On 8 May 2023, the department advised you that the processing charge was imposed
consistent with the charges regimes provided under the FOI Act and the
Freedom of
Information (Charges) Regulations 2019 (Charges Regulations). The department also referred
you to the options available to you in responding to the charge notice as set out in the letter
sent to you on 1 May 2023, including your option to seek reduction or non-imposition of the
charge.
On 28 May 2023, you sought waiver of the charge on the basis that access to the documents
is in the general public interest and the interest of a substantial section of the public.
On 27 June 2023, I notified you of my decision to affirm the imposition of the adjusted
charge in relation to your FOI request dated 17 April 2023. I also decided to reduce the
processing charge to exclude publicly available material from the charge calculation. On
30 June 2023, you revised the scope of your request as fol ows:
May I please amend the scope to exclude point 15, and to exclude documents that are
already published (provided they are already published in full with no redactions).
On 4 July 2023, I sent you a preliminary assessment of the charge payable for the processing
of your revised request.
On 5 July 2023, you further revised the scope of your request as fol ows:
Could I please also exclude points 12, 13 and 14.
That should limit the scope of my request to s 67CC(2) amendments (that is, not including
LEX71589).
On 10 July 2023, I sent you a preliminary assessment of the charge payable for the
processing of your further revised request.
On 20 July 2023, you sent a credit card authorisation form and on 24 July 2023, the
department advised you that it cannot process your credit card payment without your name
and signature as the department is unable to verify your authorisation.
On 25 July 2023, you noted that you would be happy to pay the charge by phone.
On 28 July 2023, I sent you an email outlining alternative options for paying the charge
anonymously and on 3 August 2023 you paid the charge.
What I took into account
In reaching my decision, I took into account:
• your original request dated 17 April 2023, your revised request dated 30 June 2023
and your further revised request dated 5 July 2023
• other correspondence with you
• the documents that fal within the scope of your request
• consultation with other Commonwealth Government agencies about documents
which contain information concerning them
• consultations with departmental officers about the nature of the documents and the
operating environment and functions of the department
• the guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines)
• the
Charges Regulations
• the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
Parts 1, 2 and 5 of your request
I have decided that certain documents and parts of documents that you requested at parts
1, 2 and 5 of your request are exempt under the FOI Act. My findings of fact and reasons for
deciding that exemptions apply to those documents are discussed below.
Section 22 of the FOI Act: access to edited copies with irrelevant matter deleted
I have decided that some of the documents falling within the scope of your request
contain
exempt or irrelevant material. In this regard, sections 22(1) and (2) of the FOI Act provide
that:
Scope
(1) This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(i )
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section
11A (access to documents on request); and
(i )
the edited copy would not disclose any information that would
reasonably be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(i )
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2) The agency or Minister must:
(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.
The documents identified in the schedule of documents include exempt or irrelevant
material.
In accordance with section 22 of the FOI Act, I have deleted exempt and irrelevant material
where possible from the pages identified in the schedule of documents and have decided to
release the remaining material to you.
Section 42 of the FOI Act - Documents subject to legal professional privilege
I have applied the exemption in section 42 to Part 1, Document 1; Part 1, Document 2; Part
1, Document 3; and Part 2, Document 1.
Section 42 of the FOI Act provides:
(1) A document is an exempt document it is of such a nature that it would be privileged
from production in legal proceedings on the ground of legal professional privilege.
(2) A document is not an exempt document because of subsection (1) if the person entitled
to claim legal professional privilege in relation to the production of the document in
legal proceedings waives that claim.
(3) A document is not an exempt document under subsection (1) by reason only that:
(a) the document contains information that would (apart from this subsection) cause
the document to be exempt under subsection (1); and
(b) the information is operational information of an agency.
Part 1, Documents 1 and 2 include email conversations between one of the department’s in-
house lawyers and the Child Care Division regarding advice on drafting instructions for the
Family Assistance Legislation Amendment (Plan for Cheaper Child Care) Bil 2022 (the Bill).
Part 2, Document 1 is an email chain between lawyers in the department’s Child Care Legal
Team and policy officers in the Child Care Division containing legal advice regarding the
interpretation of a provision in the
A New Tax System (Family Assistance) (Administration)
Act 1999 (Cth) (FA Administration Act). Part 1, Document 3 also contains an email
conversation between one of the department’s in-house lawyers and the Child Care Division
about the Bill as well as an email and attachment from a lawyer from the Office of
Parliamentary Counsel to one of the department’s in-house lawyers containing draft
amendments to the Bill.
I am satisfied that the material in these documents is of such a nature that it would be
privileged from production in legal proceedings on the grounds of legal professional
privilege.
In accordance with paragraph 5.127 of the FOI Guidelines, I am required to address each
aspect of legal professional privilege as established at common law. Paragraph 5.129 of the
FOI Guidelines provides that, at common law, determining whether a communication is
privileged requires a consideration of the following factors:
• whether there is a legal adviser-client relationship
• whether the communication was for the purpose of giving or receiving legal advice,
or use in connection with actual or anticipated litigation
• whether the advice is independent
• whether the advice is confidential.
I have considered each of these factors in turn below.
The legal advice contained in the documents was given by the department’s in-house
government lawyers. All departmental officers engaged by the department as government
lawyers and working in the department’s legal branches are required to hold a current
practising certificate issued by the law society in the state or territory in which they practice.
As noted above, Part 1, Document 3 includes an email and attachment from a lawyer from
the Office of Parliamentary Counsel.
Paragraph 5.134 of the FOI Guidelines relevantly provides that:
…communications and information between an agency and its qualified legal advisers for the
purpose of giving or receiving advice wil be privileged whether the legal advisers are salaried
officers [or not], provided that they are consulted in a professional capacity in relation to a
professional matter and the communications arise from the relationship of lawyer client.
I am satisfied that a legal adviser-client relationship existed at the time the legal advice
contained in the documents was produced on the basis that the advice was given by one of
the department’s in-house legal advisers holding a current practising certificate and the
lawyer was acting in their capacity as a professional legal adviser at the time. Similarly, I am
satisfied the lawyer from the Office of Parliamentary Counsel was acting in their professional
capacity at the time of giving the legal advice to the department.
I consider the documents were created for the dominant purpose of giving or receiving legal
advice on the basis that the advice contained in the document was in response to a direct
request for legal advice from the relevant business area of the department and, as set out
above, a legal adviser-client relationship existed at the time. The email from the Office of
Parliamentary Counsel was also received following a direct request for legal advice from one
of the department’s in-house lawyers regarding the drafting of legislation.
In relation to the last two aspects of legal professional privilege as set out above, I am
satisfied the advice was given independently and confidential y. As noted above, the advice
was written by the department’s in-house legal advisers who are required to maintain a
current practising certificate. The advice contained in Part 1, Document 3 was also produced
by a lawyer from the Office of Parliamentary Counsel. Accordingly, the relevant lawyers are
subject to the professional standards required of practising lawyers, including providing
independent legal advice and there is nothing before me to suggest that the lawyers
concerned acted contrary to this when giving the advice. The advice was provided to the
officers in the department who sought the advice, being officers employed in the
department’s Child Care Division and, in the case of Part 1, Document 3, the department’s
in-house lawyers, and there is nothing to suggest the advice was circulated more broadly,
beyond those departmental officers with a business need to access the advice. Accordingly, I
am satisfied the advice is confidential.
In making my decision, I have also had regard to the decision of the Federal Court in
State of
New South Wales v Betfair Pty Ltd [2009] FCAFC 160, in which the Court held that dealings
between instructing agencies and the Office of Parliamentary Counsel attract legal
professional privilege. The Court found that privilege applies to drafting instructions, draft
legislation and related communications.
On this basis, I have decided that the information included in the abovementioned
documents is exempt under section 42 of the FOI Act.
Section 47C of the FOI Act – deliberative processes
I consider Part 1, Document 2 contains material that is conditionally exempt under section
47C of the FOI Act.
Subsection 47C(1) of the FOI Act relevantly provides that:
(1) A document is conditional y exempt if its disclosure under this Act would disclose matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in
the course of, or for the purposes of, the deliberative processes involved in the functions
of:
(a) an agency…
As discussed in the FOI Guidelines at paragraph 6.52 to 6.88, the main requirements of this
conditional exemption are that a document:
• contains or relates to ‘deliberative matter’ that was prepared for a ‘deliberative
purpose’ (subsection 47C(1))
• the material is not ‘purely factual’ or non-deliberative (subsection 47C(2)), and
• it would be ‘contrary to the public interest’ to give access at this time (subsection
11A(5)).
Paragraph 6.63 of the FOI Guidelines outlines that:
‘Deliberative matter’ is a shorthand term for ‘opinion, advice and recommendation’
and ‘consultation and deliberation’ that is recorded or reflected in a document.
There is no reason generally to limit the ordinary meanings given to the words
‘opinion, advice or recommendation, consultation or deliberation.’
At paragraph 6.66, the FOI Guidelines provide ‘material that is not deliberative matter,
where not already excluded as operational information, purely factual material or a scientific
report, would include:
• content that is merely descriptive
• incidental administrative content
• procedural or day to day content
• the decision or conclusion reached at the end of the deliberative process
• matter that was not obtained, prepared or recorded in the course of, or for the
purposes of, a deliberative process.’
Further, at paragraph 6.73, the FOI Guidelines explain that ‘purely factual material’ does not
extend to factual material that is an integral part of the deliberative content and purpose of
a document, or is embedded in or intertwined with the deliberative content such that it is
impractical to excise it.
Paragraph 6.59 of the FOI Guidelines provides that a:
‘Deliberative process’ general y refers to the process of weighing up or evaluating competing
arguments or considerations or to thinking processes – the process of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a course of
action.
The parts of Part 1, Document 2 marked as conditional y exempt under this provision contain
recommendations, opinions and advice that were prepared and recorded by officers from
both Services Australia and the department about the practical application of a provision of
the FA Administration Act as well as proposed amendments to that provision. I am satisfied
that this material constitutes deliberative material.
One of the functions conferred on the department under the Administrative Arrangements
Order is early childhood education and care policy and programs. Similarly, under the
Administrative Arrangements Order, Services Australia (as part of the Department of Social
Services portfolio), is responsible for income security and support policies and programs for
families with children. Accordingly, I am satisfied that the deliberative material contained in
the document was prepared and recorded for the purposes of the deliberative processes
involved in Services Australia and the department’s functions with respect to child care.
I am satisfied that the relevant parts of Part 1, Document 2 do not contain ‘purely factual
material.’ To the extent that the information contains factual material, I consider that such
information is intertwined with the deliberative content such that it cannot reasonably or
practically be separated. I am also of the view that this information forms an integral part of
the deliberative content and purpose of the document. Accordingly, it is my view that this
material is conditionally exempt under subsection 47C(1) of the FOI Act.
Public interest
Section 11A(5) of the FOI Act provides:
The agency or Minister must give the person access to the document if it is conditional y
exempt at a particular time unless (in the circumstances) access to the document at that time
would, on balance, be contrary to the public interest.
I have weighed the public interest factors for and against disclosure under section 11A(5) of
the FOI Act. While I consider disclosure would promote the objects of the FOI Act to a smal
extent, this factor favouring disclosure is outweighed by the public interest factors against
disclosure as I consider that access to this information could reasonably be expected to
inhibit frankness and candour in the provision of advice, recommendations, opinions and
consultation between departmental officers and officers of Services Australia in relation to
the deliberative processes concerning both the department’s functions and the functions of
Services Australia.
Based on these factors, I have decided that, in this instance, the public interest in disclosing
the information in the abovementioned document is outweighed by the public interest
against disclosure.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI
Act in making this decision.
Section 47E(d) of the FOI Act – operations of agencies
I have applied the conditional exemption in section 47E(d) of the FOI Act to smal parts of
Part 1, Document 2.
Section 47E(d) of the FOI Act relevantly provides that:
(1) A document is conditional y exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the fol owing:
…
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Paragraph 6.123 of the FOI Guidelines provides, in relation to section 47E(d) of the FOI Act,
that:
The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is, the
agency 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 wil not be met and the conditional exemption wil not apply.
Part 1, Document 2 contains an email address for a positional mailbox used by staff within
Services Australia and staff of other Australian Government agencies, including the
department, to communicate with a particular team within Services Australia. This is an
established communication channel internal to the Australian Government and is not
publicly available.
Services Australia has established contact methods for the public in relation to services
which enable Services Australia to manage the volume of correspondence and
communications received by Services Australia. These methods include dedicated telephone
numbers, external email addresses, postal addresses and other online mechanisms. The
release of this positional email address could reasonably be expected to undermine these
established methods for contacting Services Australia by allowing members of the public to
contact employees of Services Australia through additional avenues, thereby disrupting
Services Australia’s usual operations.
I consider that the release of the positional email address would, or could reasonably be
expected to, have a substantial adverse effect on the proper and efficient conduct of the
operations of Services Australia, as it would, or could reasonably be expected to circumvent
established practices for communicating with Services Australia.
Given the above, I have decided that references to the positional email address are
conditional y exempt under section 47E(d) of the FOI Act.
Public interest
In weighing up the public interest factors for and against disclosure under section 11A(5) of
the FOI Act, I have taken into account the extent to which disclosure would promote the
objects of the FOI Act and consider that release of the information would achieve this to a
limited extent. I consider this factor is outweighed by the extent to which disclosure could
reasonably be expected to impede Services Australia’s ability to operate efficiently and that
release of the information could reasonably be expected to divert Services Australia’s
resources from its usual operations.
Accordingly, I am satisfied that the positional email address contained in Part 1, Document 2
is exempt from release under section 47E(d) of the FOI Act and that disclosure would, on
balance, be contrary to the public interest.
For completeness, I have not taken into account any of the irrelevant factors listed in section
11B(4) of the FOI Act.
Parts 3, 6, and 7 of your request
As set out above, I have decided to refuse your request in relation to parts 3, 6 and 7 in
accordance with subparagraph 24A(1)(b)(i ) of the FOI Act on the basis that I am satisfied
that the documents you are seeking at these parts of your request do not exist within the
department.
An agency or Minister may refuse a request for access under subsection 24A(1) of the FOI
Act if:
(a) al reasonable steps have been taken to find the document, and
(b) the agency or Minister is satisfied that the document:
(i)
is in the agency’s or Minister’s possession but cannot be found, or
(i )
does not exist.
I have decided to refuse parts 3, 6 and 7 of your request pursuant to section 24A of the FOI
Act on the basis that I am advised that al reasonable steps have been taken by relevant
departmental officers to find documents falling within the scope of these parts of your
request and those documents do not exist.
Part 3
In relation to part 3 of your request, I am advised that the ‘we’ referred to in part 2 of your
request is a reference to the department col ectively rather than to specific departmental
officers. Accordingly, the department does not hold a document containing this information.
Part 6
I am advised that the Minister’s Rules referred to in part 6 of your request are publicly
available on the Federal Register of Legislation using the following link: Child Care Subsidy
Minister's Rules 2017 (legislation.gov.au). I am further advised that the
Family Assistance
Legislation Amendment (Cheaper Child Care) Act 2022 (Cth) contained a number of
measures, including schedule 1 part 2, which repealed paragraph 67CC(2)(d) of the FA
Administration Act. I am advised that, while there were amendments to the Minister’s Rules
that supported some of these measures, the measure in schedule 1 part 2 did not require
any amendments to the Minister's Rules. Accordingly, the department does not hold
documents relating to amendments to the Minister's Rules as it relates to the amendments
to paragraph 67CC(2)(d) of the FA Administration Act.
Part 7
In relation to part 7 of your request, I am advised that the department did not study any
individual claims as part of its consideration of the amendments to paragraph 67CC(2)(d) of
the FA Administration Act.
On the basis of the above, I have decided to refuse parts 3, 6 and 7 of your request.
Conclusion
In summary, I am satisfied that the documents and parts of documents relating to parts 1, 2
and 5 of your request, as set out in the schedule of documents, are exempt under section 42
of the FOI Act and conditional y exempt under sections 47C and 47E(d) of the FOI Act.
Furthermore, I have decided that, on balance, it would be contrary to the public interest to
release the information to which I have applied sections 47C and 47E(d) of the FOI Act.
Accordingly, I have decided not to release the documents to you.
I have also decided to refuse parts 3, 6 and 7 of your request pursuant to section 24A of the
FOI Act on the basis that I am advised that all reasonable steps have been taken by relevant
departmental officers to find documents falling within the scope of these parts of your
request and those documents do not exist within the department.
Attachment B
YOUR RIGHTS OF REVIEW
Asking for a formal review of an FOI decision
If you believe the decision is incorrect, the FOI Act gives you the right to apply for a review of
the decision. Under sections 54 and 54L of the FOI Act, you can apply for a review of an FOI
decision by:
• an internal review officer in the department and/or
• the Australian Information Commissioner.
There are no fees for applying for a formal review.
Applying for an internal review by an internal review officer
If you apply for internal review, a different decision maker to the decision maker who made
the original decision will review your request. The internal review decision maker will
consider al aspects of the original decision afresh and decide whether the decision should
change.
An application for internal review must be made in writing within 30 days of receiving this
letter. You can lodge your application by email to xxx@xxxxxxxxx.xxx.xx.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
You can lodge your application in one of the following ways:
Online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR 10
Email:
xxxxx@xxxx.xxx.xx
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Complaints to the Australian Information Commissioner
Australian Information Commissioner
You may complain to the Australian Information Commissioner about action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act.
A complaint to the Australian Information Commissioner must be made in writing and can be
lodged in one of the following ways:
Online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICCA 1
Email:
xxxxx@xxxx.xxx.xx
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
