PO Box 7820 Canberra BC ACT 2610
29 September 2023
Our reference: LEX 75376
Frank N Fearless (Right to Know)
Only by email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Frank N Fearless
Decision on your Freedom of Information Request
I refer to your request to Services Australia (the Agency) dated 10 August 2023 for access to
documents under the
Freedom of Information Act 1982 (the
FOI Act). You requested:
For income apportionment debts: The General Instructions for Decision makers created
by DSS for Services Australia decision-makers to apply referred to in the Ombudsman's
recent statement (Recommendation 2):
https://www.ombudsman.gov.au/__data/assets/pdf_file/0040/299947/Commonwe
alth-Ombudsman-public-statement-regarding-OMI-Income-Apportionment-
Lawfulness.pdf#:~:text=The%20Ombudsman%20used%20section%209%20of%2
0the%20Ombudsman,a%20section%209%20notice%20without%20a%20reasona
ble%20excuse.
In the event there is a version change prior to my request being finalised, I would like
both versions of the document, original and updated please.
I'm requesting this from you, not DSS, as it constitutes operational information of
Services Australia.
Can I also get the date this General Instructions document was published by Services
Australia in compliance with its obligations under section 8(D)(3), Freedom of
Information Act 1982 (Cth)
I also seek the revised policy on grossed up bank statement debts referred to by Senior
Member Webb in Jackson and Secretary, Department of Social Services (Social
services second review) [2023] AATA 1286 (22 May 2023) at paragraph 4:
"The Secretary’s legal representative informed me a new Departmental policy was
promulgated in December 2022 in respect of assessing income from a claimant’s bank
records, under which records from Mr Jackson’s previous employer/s would be
obtained. "
I would like this policy.
Can I get the date this revised policy was published by Services Australia in compliance
with its obligations under section 8(D)(3) of the Freedom of Information Act 1982?
PAGE 1 OF 9
My decision
The Agency holds 2 documents (totalling 6 pages) relating to your request.
I have decided to grant you
part access to these documents (documents 1 and 2) with some
of the content removed.
I have decided parts of the documents you have requested are exempt under the FOI Act, as
they include:
• deliberative matter, the disclosure of which would be contrary to the public interest
(section 47C of the FOI Act), and
• information which could reasonably be expected to have a substantial adverse effect
on the proper and efficient conduct of the operations of the agency and release is
contrary to the public interest (section 47E(d) conditional exemption).
Please see the schedule at
Attachment A to this letter for a detailed list of the documents and
the reasons for my decision, including the relevant sections of the FOI Act.
How we will send your documents to you
The documents are attached.
You can ask for a review of our decision
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 from within the Agency, or an external review
by the Office of the Australian Information Commissioner. See
Attachment B for more
information about how to request a review.
Further assistance
If you have any questions please email xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Kasey
Authorised FOI Decision Maker
Freedom of Information Team
FOI and Ombudsman Branch | Legal Services Division
Services Australia
PAGE 2 OF 9
PO Box 7820 Canberra BC ACT 2610
REASONS FOR DECISION
What you requested
On 10 August 2023, you requested access to the following documents:
For income apportionment debts: The General Instructions for Decision makers created
by DSS for Services Australia decision-makers to apply referred to in the Ombudsman's
recent statement (Recommendation 2):
https://www.ombudsman.gov.au/__data/assets/pdf_file/0040/299947/Common
wealth-Ombudsman-public-statement-regarding-OMI-Income-Apportionment-
Lawfulness.pdf#:~:text=The%20Ombudsman%20used%20section%209%20o
f%20the%20Ombudsman,a%20section%209%20notice%20without%20a%20r
easonable%20excuse.
In the event there is a version change prior to my request being finalised, I would like
both versions of the document, original and updated please.
I'm requesting this from you, not DSS, as it constitutes operational information of
Services Australia.
Can I also get the date this General Instructions document was published by Services
Australia in compliance with its obligations under section 8(D)(3), Freedom of
Information Act 1982 (Cth)
I also seek the revised policy on grossed up bank statement debts referred to by Senior
Member Webb in Jackson and Secretary, Department of Social Services (Social
services second review) [2023] AATA 1286 (22 May 2023) at paragraph 4:
"The Secretary’s legal representative informed me a new Departmental policy was
promulgated in December 2022 in respect of assessing income from a claimant’s bank
records, under which records from Mr Jackson’s previous employer/s would be
obtained. "
I would like this policy.
Can I get the date this revised policy was published by Services Australia in compliance
with its obligations under section 8(D)(3) of the Freedom of Information Act 1982?
What I took into account
In reaching my decision I took into account:
• your request dated 10 August 2023
• documents falling within the scope of your request
• consultation with third parties about documents which contain information concerning
them
• whether the release of material is in the public interest
• consultations with Agency officers about:
PAGE 4 OF 9
PO Box 7820 Canberra BC ACT 2610
o the nature of the documents
o the Agency's operating environment and functions
• guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (the Guidelines), and
• the FOI Act.
Reasons for my decisions
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided parts of the documents you requested are exempt under the FOI Act. My
findings of fact and reasons for deciding that the exemption applies to those documents are
discussed below.
Section 47C of the FOI Act – deliberative process
I have applied the conditional exemption in section 47C to parts of documents 1 and 2 as
outlined in the schedule.
Section 47C of the FOI Act provides that a document is conditionally exempt if it would disclose
deliberative matter. Deliberative matter is an opinion, advice or recommendation, or a
consultation or deliberation that has taken place in the course of, or for the purposes of, the
deliberative processes of an agency. Material which is operational or purely factual information
is not deliberative matter. The deliberative exemption also does not apply to reports of scientific
or technical experts, reports of a body or organisation prescribed by the regulations, or a formal
statement of reasons.
I have applied this exemption to documents 1 and 2. I am satisfied these documents contain
deliberative matter, being advice and recommendations prepared by the Department of Social
Services for the purpose of providing guidance for operational staff within the Agency on the
assessment of employment income for debt periods that fall before 7 December 2020. The
information to which this conditional exemption has been applied is not operational information,
or purely factual information, and are otherwise not of a kind specifically excluded by the FOI
Act.
Section 47E(d) of the FOI Act – effective operations of agencies
I have applied the conditional exemption in section 47E(d) to parts of documents 1 and 2.
Section 47E(d) of the FOI Act provides:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency.
This section of the FOI Act allows the Agency to redact material from a document if its
disclosure would have a serious or significant effect on the agency’s ability to conduct its
operations efficiently and properly.
Would disclosure of the information reasonably be expected to have a substantial adverse
effect on the proper and efficient conduct of operations of Services Australia?
PAGE 5 OF 9
PO Box 7820 Canberra BC ACT 2610
Paragraph 5.20 of the Guidelines provides:
The term ‘substantial adverse effect’ broadly means ‘an adverse effect which is
sufficiently serious or significant to cause concern to a properly concerned reasonable
person’. The word ‘substantial’, taken in the context of substantial loss or damage, has
been interpreted as ‘loss or damage that is, in the circumstances, real or of substance
and not insubstantial or nominal’.
Further, paragraph 6.101 of the Guidelines provides:
… There must be more than merely an assumption or allegation that damage may
occur if the document were to be released.
The information to which this conditional exemption has been applied includes information
relating to:
• discretionary decision making processes, and
• details of agency operational processes that are not publicly available and which
relate to the ways the Agency calculates the apportionment of employment income.
I consider that providing the conditionally exempted material to you will negatively affect the
operations of the Agency. The release of this material would reasonably be expected to
facilitate or promote the broad circumvention of the processes and procedures designed to
assist operational staff within the Agency on the assessment of employment income for debt
periods that fall before 7 December 2020. This would therefore compromise the Agency’s
ability to ensure the effective delivery of associated functions. If the processes and procedures
became public knowledge, this is likely to inhibit the effectiveness of those processes and
procedures. It would mean some individuals would be able to circumvent them for dishonest
personal benefit, substantially affecting the Agency’s work relating to debt raising decisions
and debt calculations under internal and external reviews.
For these reasons, I am satisfied certain operational information is conditionally exempt under
section 47E(d) of the FOI Act.
Public Interest considerations
Access to conditionally exempt material must be given unless I am satisfied it would not be in
the public interest to do so.
I consider the disclosure of the material would generally promote the objects of the FOI Act
and allow individuals to understand how debts are calculated, which is in the public interest.
However, I also consider the disclosure of this material would prejudice the Agency’s ability to
effectively and efficiently manage the delivery of agency operations regarding the assessment
of employment income.
For this reason, I have decided in this instance, the public interest in disclosing the information
in the requested documents is outweighed by the public interest against disclosure.
Accordingly, I have decided parts of the documents, are conditionally exempt under sections
47C and 47E(d) of the FOI Act.
PAGE 6 OF 9
PO Box 7820 Canberra BC ACT 2610
Summary of my decision
In conclusion, I am satisfied parts of the documents, as set out in the Schedule, are
conditionally exempt under section 47C and 47E(d) of the FOI Act. I have therefore decided to
grant you part access to the requested documents.
I have redacted the exempt information in the documents and released the remaining material
in accordance with section 22(1) of the FOI Act.
PAGE 7 OF 9
PO Box 7820 Canberra BC ACT 2610
Attachment B
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a freedom of information (FOI) decision
Before you ask for a formal review of a FOI decision, you can contact us to discuss your
request. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an FOI decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (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:
1. an Internal Review Officer in Services Australia (the Agency), and/or
2. the Australian Information Commissioner.
Note: There are no fees for these reviews.
Applying for an internal review by an Internal Review Officer
If you apply for internal review, a different decision maker to the Agency delegate who made
the original decision will carry out the review. The Internal Review Officer will consider all
aspects of the original decision and decide whether it should change. An application for internal
review must be:
• made in writing
• made within 30 days of receiving this letter
• sent to the address at the top of the first page of this letter.
Note: You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
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.
If you do not receive a decision from an Internal Review Officer in the Agency within 30 days
of applying, you can ask the Australian Information Commissioner for a review of the original
FOI decision.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
PAGE 8 OF 9
PO Box 7820 Canberra BC ACT 2610
You can lodge your application:
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note: The Office of the Australian Information Commissioner generally prefers FOI applicants
to seek internal review before applying for external review by the Australian Information
Commissioner.
Important:
• If you are applying online, the application form the 'Merits Review Form' is available at
www.oaic.gov.au.
• If you have one, you should include with your application a copy of the Services
Australia decision on your FOI request
• Include your contact details
• Set out your reasons for objecting to the Agency's decision.
Complaints to the Australian Information Commissioner and Commonwealth
Ombudsman
Australian Information Commissioner
You may complain to the Australian Information Commissioner concerning action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act, there is
no fee for making a complaint. A complaint to the Australian Information Commissioner must
be made in writing. The Australian Information Commissioner's contact details are:
Telephone: 1300 363 992
Website: www.oaic.gov.au
Commonwealth Ombudsman
You may also complain to the Commonwealth Ombudsman concerning action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act. There is
no fee for making a complaint. A complaint to the Commonwealth Ombudsman may be made
in person, by telephone or in writing. The Commonwealth Ombudsman's contact details are:
Phone: 1300 362 072
Website: www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before
complaining about a decision.
PAGE 9 OF 9
