OFFICIAL
Reference:
FOI 23-24/027
Contact:
FOI Team
E-mail:
xxx@xxxxxxx.xxx.xx
Me
via Right to Know Website
By email only: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Me,
Freedom of Information Request – FOI 23-24/027
On 30 August 2023, the Department of Finance (Finance) received your email, in which you
sought access under the Commonwealth
Freedom of Information Act 1982 (FOI Act) to the
following:
For all successful act of grace applications made against ASIC for the period 1 July 2021 - 30 June 2023, I
request:
• A copy of the record entered in the SFC database regarding the application (see FOI 22/119
Document 1)
• Where the approval was for more than $100,000 (including more than $500,000), the Ministerial
Submission regarding the application
• Where the approval was for under $100,000, the Minute that contains the reasons for approval
• Where the approval came after a reconsideration by the Ombudsman or Federal Court, a copy of
the final reasons for decision given by the Ombudsman or Federal Court.
The purpose of this letter is to provide you with notice of my decision under the FOI Act.
Authorised decision-maker
I am authorised by the Secretary of Finance to grant or refuse access to documents.
Decision
I have identified one (1) document as falling within the scope of your request. I have
decided to release this document to you in part, with information relating to legal privilege
and personal privacy removed.
In relation to the remaining request, I can confirm that Finance did not have any ASIC
related Act of Grace claims over $100,000 during the period; and there have been no claims
that have been considered by the Ombudsman or Federal Court.
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
OFFICIAL
In relation to the request for a "Minute that contains the reasons for approval”, no such
documents were required as part of these Act of Grace claim approval processes. I have
interpreted that the term “Minute” is referring to the provision of a formal briefing
document. Given the specific nature of the identified claims, formal briefing documents
were not required to be generated, therefore, I have determined that no documents exist for
this part of your request.
In making my decision, I have had regard to the following:
• the terms of your FOI request;
• the content of the documents that fall within the scope of your request;
• the relevant provisions of the FOI Act; and
• the FOI Guidelines issued by the Office of the Australian Information Commissioner
(FOI Guidelines).
Exempt and/or irrelevant information removed from the document
I have redacted irrelevant and exempt information from the document and released the
edited form of the document to you.
Documents are partially exempt due to legal professional privilege–
section 42
Section 42 of the FOI Act provides:
(1) A document is an exempt document if it is of such a nature that it would be privileged
from production in legal proceedings on the ground of legal professional privilege.
The FOI Guidelines set out:
[5.128] LPP applies to some but not all communications between legal advisers and clients.
The underlying policy basis for LPP is to promote the full and frank disclosure between a
lawyer and client to the benefit of the effective administration of justice. It is the purpose of
the communication that is determinative. The information in a document is relevant and may
assist in determining the purpose of the communication, but the information in itself is not
determinative.
[5.129] At common law, determining whether a communication is privileged requires a
consideration of:
• 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 given is independent
• whether the advice given is confidential.
I have examined the document and I have found it to contain information that falls under the
definition of the independent and confidential advice given in a legal adviser-client
relationship for the purposes of providing legal advice.
Therefore, I have determined the document to be partially exempt under section 42 of the
FOI Act.
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OFFICIAL
Documents are conditionally exempt due to personal privacy – section 47F
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 document in full ensures there is no risk of personal information
becoming disclosed inadvertently. The documents contain the personal details of individual
claims and any information that may lead to identification of an individual has been
removed. I consider that this information is exempt under section 47F.
Public interest test
Having formed the view that the document is in part, 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.
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OFFICIAL
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.
I consider that the document contains personal and sensitive information related to a natural
person and 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.
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.
I consider that releasing the document in full 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 A.
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OFFICIAL
Publication
Finance will publish the documents released to you on our
Disclosure Log. Finance’s policy
is to publish the documents the working day after they are released to you.
If you have any questions in regard to this request, please contact the FOI Team on the
above contact details.
Yours sincerely,
Digitally signed by Sebar,
Gareth
Date: 2023.09.28 16:34:01
+10'00'
Gareth Sebar
Assistant Secretary
Procurement & Discretionary Payments | Procurement and Insurance
Department of Finance
28 September 2023
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OFFICIAL
ATTACHMENT A
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 be
30 calendar days of being notified of our
carried out by a different decision maker,
decision to release your information.
usually 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.
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OFFICIAL
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.
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Document Outline
