OFFICIAL
Reference:
FOI 23-24/034
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 23-24/034
On 29 September 2023, the Department of Finance (Finance) received your email, in which
you sought access to the following under the Commonwealth
Freedom of Information Act
1982 (FOI Act):
For all unsuccessful (note ‘un’) 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 application was for more than $100,000 (including more than $500,000), the
Ministerial Submission regarding the application
- Where the application was for under $100,000, the Minute that contains the reasons for
refusal (for the avoidance of doubt, this includes any sort of briefing covered by the policy
disclosed under 22/119. It may simply be an email)
- Where the final decision 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.
On 19 October 2023, you agreed to amend the scope of your request by the following:
... the 10 most recent decisions before 30 June 2023, where the decision:
- is not substantially the same as another decision in the set of 10 (that is, the facts
underlying each decision are not similar), and
- resulted in the production of a minute, or other document containing substantive reasons
for decision.
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.
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
OFFICIAL
Decision
I have identified five (5) documents as falling within the scope of your request. I have
decided to release all five documents to you with material removed as it relates to legal
professional privilege and certain operations of agencies. I have also removed personal
information under section 22 as per the scope 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;
• consultations with third parties in accordance with the FOI Act and submissions
made by those third parties;
• the relevant provisions of the FOI Act; and
• the FOI Guidelines issued by the Office of the Australian Information Commissioner
(FOI Guidelines).
The documents are identified in the Schedule at
Attachment A.
Exempt and irrelevant information removed from the documents
I have redacted irrelevant and exempt information from the documents and released the
edited form of the documents to you.
Material related 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 documents 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 documents to be partially exempt under section 42 of the
FOI Act.
2
OFFICIAL
Material related to certain operations of agencies (section 47E)
Section 47E of the FOI Act provides:
(1) A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests,
examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits
conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of personnel by the
Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of
an agency.
The documents contain details related to the decision-making processes of Finance in assessing
the claims for an act of grace under the
Public Governance, Performance and Accountability
Act, 2013. Release of the documents in full may adversely affect the operations of Finance by
prejudicing the effectiveness of future examinations of claims for acts of grace payments.
The assessment of each claim required input relating to the operations of other Commonwealth
agencies. Disclosure of the material in full is likely to adversely affect the operations of Finance
by revealing information that was provided to Finance in confidence.
For these reasons I consider that material removed from the documents is conditionally exempt
under section 47E of the FOI Act.
Public interest test
Having formed the view that the documents are exempt, in part, under sections 47E 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:
1.
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.
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:
3
OFFICIAL
•
prejudice the protection of an individual’s right to privacy, including
where the personal information is that of a government employee in relation
to personnel management and the disclosure of the information could be
reasonably considered to reveal information about their private disposition or
personal life.
•
prejudice an agency’s ability to obtain similar information in the
future.
•
harm the interests of an individual or group of individuals.
I attribute significant weight to the above factors for there is a need to preserve reasonably
held expectations by Commonwealth agencies that Finance maintains confidentiality. The
release of the material that is removed from the documents under section 47E is likely to
substantially prejudice the ability of Finance to obtain 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:
3. 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
the operations of government agencies and the ability of Finance to obtain similar
information in the future.
I have determined that releasing the conditionally exempt information in the documents
would, on balance, be contrary to the public interest.
Charges
On 30 October 2023, we sent you our preliminary charges notice in the amount of $255.00.
On 4 December 2023, you contested the amount of the preliminary charges notice.
On 12 January 2024, we sent you our decision in relation to your charges contention, in
which we set aside our preliminary charges decision to impose a charge of $255.00. This
meant that there was no charge.
Third party consultation
4
OFFICIAL
Finance consulted with a third party and provided them with a copy of the documents with
our proposed redactions. We did not receive any objections to the release of the documents.
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.
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 regarding this request, please contact the FOI Team on the above
contact details.
Yours sincerely,
Meagan Wilson
Assistant Secretary
Comcover and Discretionary Payments | Risk, Insurance and Discretionary Payments
Department of Finance
February 2024
14
5
OFFICIAL
ATTACHMENT A
SCHEDULE OF DOCUMENTS RELEVANT TO FOI 23-24/034
Document
Date of
No. of
Description of Document
Decision
No.
Document
Pages
1
01/10/2024
5
Minutes related to Act of Grace claims
Release in part
2
30/09/2022
Irrelevant material redacted under section 22
3
17/02/2023
Exempt material redacted under sections 42 and 47E.
4
24/02/2023
5
31/05/2023
6
Updated to ‘A
O
’ i
FFI
f n
C
o
IAL
s chedule is attached 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 locate
d 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.
If I apply for an internal review, do I
We are required to make an IR decision
lose the opportunity to apply for an
within 30 calendar days of receiving your
external review?
application. If we do not make an IR decision
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.
7
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
accessibl
e 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
part of a wider grievance about an agency’s
Commissioner
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.
8
Document Outline
