Reference:
FOI 22-23/053
Contact:
FOI Team
E-mail:
xxx@xxxxxxx.xxx.xx
Me
via Right To Know website
By email only: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Sir,
Freedom of Information Request – FOI 22-23/053
On 5 May 2023, the Australian Securities and Investments Commission (ASIC) received
your email, in which you sought access under the Commonwealth
Freedom of Information
Act 1982 (FOI Act) to the following:
Please provide all documents in ASIC's possession that relate to ASIC receiving, considering, refusing or
failing to consider, assessing, determining, accepting, rejecting, or otherwise dealing with, CDDA
applications made to ASIC.
For the avoidance of doubt, this does not include individual CDDA applications themselves.
On 16 May 2023, you agreed to amend the scope of your request by the following:
The most final report/outcome documents in the possession of ASIC for any Act of Grace payments
considered regarding ASIC since say 1 July 2021.
Would it be possible to revise my scope to the most final report/outcome documents in the possession of
ASIC for any Act of Grace payments considered regarding ASIC since say 1 July 2021?
On 19 May 2023, ASIC transferred your request, in full, to the Department of Finance
(Finance).
On 23 June 2023, following a teleconference discussion with the Department of Finance,
you revised the scope of your request at
Attachment A.
The purpose of this letter is to provide you with notice of my decision under the FOI Act in
relation to your final amended scope as provided on 23 June 2023.
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
Additional information relevant to your request
During the meeting held on 23 June 2023 you explained that you are seeking information on
the characteristics of circumstances in which a claim for an Act of Grace payment related to
ASIC was deemed successful. As such, the following general information may be of
assistance to you.
There is no situation which creates an automatic entitlement to an Act of Grace payment and
the decisions made by a delegate are unique to the set of circumstances of each claim.
Your amended scope requests documents where the delegate has accepted the claim for an
Act of Grace payment. Decision letters authorising a payment for an Act of Grace payment
do not contain a consideration or decision summary as described in your request.
Apart from factual and personal information, a decision letter authorising an Act of Grace
payment will typically contain standard wording as follows:
I am an authorised delegate for the purposes of section 65 of the Public Governance, Performance and
Accountability Act 2013 (PGPA Act).
I have decided, under subsection 65(1) of the PGPA Act to authorise an act of grace payment of
$[amount] in this instance. Finance will liaise with [Non-corporate Commonwealth Entity Name] to
give effect to this decision.
Further information is publicly available on the Department of Finance website at the
followi
ng link (accessible on the Finance website at Home/ Individuals /Act Of Grace
Payments, Waiver Of Debts To The Commonwealth, Compensation For Detriment Caused
By Defective Administration (CDDA)/ Act of Grace Payments).
The Commonwealth Resource Management Guide 401 “Requests for discretionary financial
assistance under the Public Governance, Performance and Accountability Act 2013”
provides guidance to Non-corporate Commonwealth Entities including in relation to Act of
Grace payments and the CDDA scheme. This document may be of assistance to your
understanding of the roles of Non-corporate Commonwealth Entities and general
considerations relevant to Act of Grace payments. It is publicly available on the Department
of Finance website at the followi
ng link (accessible on the Finance website at Home
/Publications /List Of Resource Management Guides (RMGs) A Z /Requests for
discretionary financial assistance under the Public Governance, Performance and
Accountability Act 2013 (RMG 401)).
Authorised decision-maker
I am authorised by the Secretary of Finance to grant or refuse access to documents.
Decision
I have identified five (5) documents as falling within scope of your request and I have
decided to refuse to release all the five (5) documents under section 47F of the FOI Act.
In making my decision, I have had regard to the following:
• the terms of your FOI request;
• searches for documents held by Finance;
• the relevant provisions of the FOI Act; and
• the FOI Guidelines issued by the Office of the Australian Information Commissioner
(FOI Guidelines).
2
Documents are conditionally exempt due to personal privacy
Section 47F of the FOI Act provides:
(1) A document is conditional y exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure
of personal information, an agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the document;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
Section 47F is intended to protect the personal privacy of individuals. Personal information
is defined as information or an opinion about an identified individual, or an individual who
is reasonably identifiable whether the information or opinion is true or not; and whether the
information or opinion is recorded in a material form or not.
The refusal to release the documents ensures there is no risk of personal information
becoming disclosed inadvertently. The documents contain the personal details of individuals
and the standard wording that is quoted in the section above. As such I consider that the
documents are exempt under section 47F.
Public interest test
Having formed the view that the five documents are exempt under section 47F of the
FOI Act, I am now required to consider the public interest test for the purposes of
determining whether access to the conditionally exempt documents would, on balance, be
contrary to the public interest.
Section 11A of the FOI Act provides:
5. The agency or Minister must give the person access to the document if it is conditionally 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.
Factors favouring disclosure
Section 11B of the FOI Act provides:
3. Factors favouring access to the document in the public interest include whether access to the
document would do any of the following:
a. promote the objects of this Act (including all the matters set out in sections 3 and 3A);
b. inform debate on a matter of public importance;
c. promote effective oversight of public expenditure;
d. allow a person to access his or her own personal information.
I consider that giving access to the documents would promote the objectives of the FOI Act
by providing access to documents held by an agency. I attribute minimal weight to this
factor as this objective applies to all documents, regardless of the effect of releasing the
documents.
I note that your email of 23 June 2023 stated:
… I expanded (4) slightly [your request for a ‘a table or similar that lists all ASIC-related Act of
Grace payments’] … If required, I would make the argument it’s in the public interest, because (i)
there is a surge in ASIC related applications, and (ii) such a table will assist Finance in improving
public administration by identifying or helping to identify causes of this surge
3
The FOI Act applies to existing documents in the possession of an agency and does not
obligate an agency to create a document.
Further, I do not consider that the release of the documents requested favours the public
interest in relation to a “surge in ASIC related applications” or assists in identifying causes
of such a surge.
Factors against disclosure
Paragraph 6.22 of the FOI Guidelines provides a non-exhaustive list of factors against
disclosure, of which, I consider the following could reasonably be expected to apply:
• prejudice the protection of an individual’s right to privacy;
• harm the interests of an individual or group of individuals; and
• prejudice an agency’s ability to obtain similar information in the future.
As outlined above, I consider that the documents identified contain personal details and
sensitive information related to an individual, and that the information outlined in the
documents is not well known nor available from publicly accessible sources. In addition, the
fact that an individual has applied for an Act of Grace payment is not well known or
publicly available.
I consider that the release of these documents, even in a redacted form, may cause concern,
distress or otherwise harm the interests of applicants who have made discretionary payment
applications. I consider that the release of any further information in relation to these
applications could reasonably be expected to impact the willingness of applicants to provide
similar information in the future.
Irrelevant considerations
I have not taken into account any of the irrelevant factors listed under Section 11B of the
FOI Act:
4. The following factors must not be taken into account in deciding whether access to the document
would, on balance, be contrary to the public interest;
a. access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;
b. access to the document could result in any person misinterpreting or
misunderstanding the document;
c. the author of the document was (or is) a high seniority in the agency to which the
request for access to the document was made;
d. access to the document could result in confusion or unnecessary debate.
Balancing the public interest factors
The FOI Guidelines provide:
[6.25] The decision maker must determine whether access to a conditionally exempt document is, at the
time of the decision, contrary to the public interest, taking into account the factors for and against
disclosure.
[6.27] To conclude that, on balance, disclosure of a document would be contrary to the public interest is to
conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public
of withholding the information.
I consider that there is public interest in providing access to documents held by Finance.
However, for the reasons listed above, I consider there is greater public interest in protecting
personal information and sensitive personal information of applicants, as it is reasonably
likely that the release of this information will prejudice those applicants’ right to privacy and
harm their interests, and will prejudice Finance’s ability to obtain similar information in the
future.
4
Approval of an Act of Grace claim is discretionary and the documents which are within
scope of your request do not contain consideration or decision summaries. Given that I have
provided to you in this letter, the wording that is typically included in decisions approving
an Act of Grace claim, I consider that the release of any further information from these
documents would contribute minimally towards factors favouring disclosure.
I consider that releasing five documents identified as within scope of your request would, on
balance, be contrary to the public interest.
Review and appeal rights
You are entitled to request an internal review or an external review by the Office of the
Australian Information Commissioner (OAIC) of my decision. The process for review and
appeal rights is set out at
Attachment B.
If you have any questions regarding this request, please contact the FOI Team on the above
contact details.
Yours sincerely,
Jessica Wilson
A/g Assistant Secretary
Procurement & Discretionary Payments Branch
Commercial Group
24 July 2023
5
ATTACHMENT B
Freedom of Information – Your Review Rights
If you disagree with a decision made by the Department of Finance (Finance) or the
Minister for Finance (Minister) under the
Freedom of Information Act 1982 (the FOI Act)
you can have the decision reviewed. You may want to seek review if you sought certain
documents and were not given full access, if you have been informed that there will be a
charge for processing your request, if you have made a contention against the release of
the documents that has not been agreed to by Finance or the Minister, or if your
application to have your personal information amended was not accepted. There are two
ways you can seek a review of our decision: an internal review (IR) by Finance or the
Minister, or an external review (ER) by the Australian Information Commissioner (IC).
Internal Review (IR)
Third parties
If, Finance or the Minister (we/our), makes a
If you are a third party objecting to a decision
Freedom of Information (FOI) decision that
to grant someone else access to your
you disagree with, you can seek a review of
information, you must apply to the IC within
the original decision. The review will carried
30 calendar days of being notified of our
out by a different decision maker, usually
decision to release your information.
someone at a more senior level.
Further assistance is located
here.
You must apply for an IR within 30 calendar
Do I have to go through the internal
days of being notified of the decision or
review process?
charge, unless we agree to extend your time.
No. You may apply directly to the OAIC for
You should contact us if you wish to seek an
an ER by the IC.
extension.
We are required to make an IR decision
If I apply for an internal review, do I
within 30 calendar days of receiving your
lose the opportunity to apply for an
application. If we do not make an IR decision
external review?
within this timeframe, then the original
No. You have the same ER rights of our IR
decision stands.
decision as you do with our original decision.
This means you can apply for an ER of the
Review by the Australian
original decision or of the IR decision.
Information Commissioner (IC)
Do I have to pay for an internal review
The Office of the Australian Information
or external review?
Commissioner (OAIC) is an independent
office who can undertake an ER of our
No. Both the IR and ER are free.
decision under the FOI Act. The IC can
review access refusal decisions, access grant
decisions, refusals to extend the period for
applying for an IR, and IR decisions.
If you are objecting to a decision to refuse
access to a document, impose a charge, or a
refusal to amend personal information, you
must apply in writing to the IC within 60
calendar days of receiving our decision.
6
How do I apply?
Can I appeal the Information
Commissioner’s external review
Internal review
decision?
To apply for an IR of the decision of either
Yes. You can appeal the Information
Finance or the Minister, you must send your
Commissioner’s ER decision to the
review in writing. We both use the same
Administrative Appeals Tribunal (AAT).
contact details, and you must send your
review request in writing.
There is a fee for lodging an AAT application
(as at 17 February 2023 it is $1,011).
In your written correspondence, please
include the following:
Further information is accessible
here.
• a statement that you are seeking a review
The AAT’s number is 1800 228 333.
of our decision;
• attach a copy of the decision you are
Complaints
seeking a review of; and
• state the reasons why you consider the
Making a complaint to the Office of the
original decision maker made the wrong
Australian Information Commissioner
decision.
You may make a written complaint to the
Email: xxx@xxxxxxx.xxx.xx
OAIC about actions taken by us in relation to
your application.
Post: The FOI Coordinator
Legal and Assurance Branch
Further information on lodging a complaint is
Department of Finance
accessible
here.
One Canberra Avenue
FORREST ACT 2603
Investigation by the Commonwealth
Ombudsman
External review (Information
The Ombudsman can also investigate
Commissioner Review)
complaints about action taken by agencies
For an ER, you must apply to the OAIC in
under the FOI Act. However, if the issue
writing. The OAIC ask that you commence a
complained about either could be, or has been,
review by completing their online form
here.
investigated by the IC, the Ombudsman will
consult with the IC to avoid the same matter
Your application must include a copy of the
being investigated twice. If the Ombudsman
notice of our decision that you are objecting
decides not to investigate the complaint, then
to, and your contact details. You should also
they are to transfer all relevant documents and
set out why you are objecting to the decision.
information to the IC.
Email: xxxxx@xxxx.xxx.xx
The IC can also transfer a complaint to the
Ombudsman where appropriate. This could
Post: Office of the Australian Information
occur where the FOI complaint is only one
Commissioner
part of a wider grievance about an agency’s
GPO Box 5218
actions. You will be notified in writing if your
Sydney NSW 2001
complaint is transferred.
The IC’s enquiries phone line is
Complaints to the Ombudsman should be
1300 363 992.
made online
here.
The Ombudsman’s number is 1300 362 072.
7
Document Outline
