Date of letter
To/From
Summary of content
or email
28 July 2015
Peter Matheson’s posting on the Thanking you
Right to Know website
3. Your amended FOI request
I confirm that your amended FOI request is for document(s):
showing the itemised cost to ACARA of obtaining the legal advice from the Australian
Government Solicitor dated 28 April 2011; and
excluding the names of solicitors and others.
4. My decision
I have identified one (1) document relevant to your amended request, being the invoice from
the Australian Government Solicitor to ACARA dated 20 May 2011 (
Invoice). I decide to
release the Invoice in part, and enclose a copy of the redacted Invoice. My reasons for
decision are at
Attachment 1 and document details are at
Attachment 2.
I advise that I have redacted from the Invoice the typed name of the solicitor and two (2)
signatures, in accordance with the terms of your amended FOI request. Under the FOI Act,
“document” includes any part of a paper on which there is writing. I find that I am providing
you with the document that you have requested. I am therefore not required to provide
reasons for these redactions.
5. Decision On Charges
The
Freedom of Information (Fees and Charges) Regulations (
Regulations) prescribes the
charges that can be levied in respect of a request for access to a document or the provision
of access to a document. These charges are set out in the Regulations and are for search
and retrieval of documents, decision making and provision of access (for example, copying
and postage).
Sub-regulation 3(1) of the Regulations provides an agency with a discretion as to whether it
will impose any charge. In relation to this request, I have decided
not to impose a charge.
6. Internal Review
If you are dissatisfied with this decision, you have certain rights of review available to you.
Under section 54 of the FOI Act, you may apply for an internal review of the decision. You
must apply in writing for an internal review of the decision within 30 days of receiving this
notice: section 54B of the FOI Act. There is no fee to make a request for an internal review.
If you make an application for internal review, it will be conducted by another officer of
ACARA. That person will make a fresh decision on the merits of the case. No particular form
is required to apply for review although it will assist your case to set out in the application the
grounds on which you believe that the original decision should be overturned.
An application for review of the decision should be addressed to Peter Matheson. Peter’s
contact details are set out under
heading [9] below.
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Attachment 1 - Summary of reasons for my decision
In summary, the reasons for my decision are:
a.
Sub-section 47B(a) of the FOI Act – The
Invoice narrations are conditionally exempt
under sub-section 47B(a) of the FOI Act (Commonwealth/State relations). In my view:
the legal advice from the Australian Government Solicitor to ACARA dated 28
April 2011 (
Legal Advice) was prepared to inform Education Council
deliberations;
Education Council deliberations are expected to be confidential;
disclosing the Invoice narrations will disclose aspects of the confidential Legal
Advice; and
disclosing the Invoice narrations will therefore cause the harms that disclosing
the Legal Advice itself will cause (covered in my previous FOI decision to you
dated 4 May 2015).
I find that release of the Invoice narrations under FOI would fundamentally:
adversely affect the continued level of trust or co-operation in inter-jurisdictional
relationships; and
adversely affect the administration of multiple continuing Commonwealth–State
projects being managed by ACARA.
b.
Sub-section 47E(d) of the FOI Act – The Invoice narrations are also conditionally
exempt under sub-section 47E(d) of the FOI Act (substantial adverse effect on the
proper and efficient conduct of ACARA’s operations). I find that release of the Invoice
narrations by ACARA outside the agreed Education Council’s Operating Protocols
would reasonably likely lead to a loss of confidence in ACARA by nine (9) Education
Ministers and nine (9) Heads of Department, which could reasonably be expected to
result in ACARA being significantly impeded in carrying out its statutory functions.
c.
Public interest – There is clearly some public interest in knowing about the Invoice
narrations in relation to discussions that were occurring during 2011 in the Education
Council regarding simplistic league tables published by the media. However, in
weighing the public interest, I consider that the continued cooperation and
collaboration of the Commonwealth, States and Territories to further strategic policy in
relation to school education outweighs the public interest in disclosing the Invoice
narrations.
d.
Section 42 of the FOI Act (legal professional privilege) – I find that the Invoice
narrations are also exempt under section 42 of the FOI Act (legal professional
privilege). I note that, apparently, someone may have released part or all the paper to
the Standing Council for School Education and Early Childhood dated 8 July 2011
titled “ACARA advice on action to prevent the publication of league tables” (
Education
Council Paper) to
The Australian, which published an article on 1 August 2011
(www.theaustralian.com.au/national-affairs/my-school-site-warned-off-suing-
media/story-fn59niix-1226105578220). This release, if it occurred, was not authorised.
The Education Council Paper does not directly quote from the Legal Advice, and only
summarises the conclusions of the Legal Advice. I find that the unauthorised
disclosure of the Education Council Paper did
not amount to ACARA waiving privilege
over the Legal Advice or the Invoice narrations nor did it enable the Legal Advice (as
opposed to a summary of a few paragraphs) to come into the public domain.
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Reasons for my decision
1.
Material taken into account
In making my decision, I have had regard to the following:
the terms of your request;
the documents to which you sought access;
relevant provisions of the FOI Act;
advice from ACARA staff with responsibility for matters relating to the documents to
which you sought access;
the Commissioner’s Guidelines, version 1.3, September 2013, Part 5
www.oaic.gov.au/freedom-of-information/applying-the-foi-act/foi-guidelines/part-5-
exemptions; and
the Commissioner’s Guidelines, version 1.2, March 2013, Part 6
www.oaic.gov.au/images/documents/freedom-of-information/applying-the-foi-act/foi-
guidelines/part6_conditional_exemptions_v1-2.pdf.
2.
(a) My Decision
I have identified one (1) document relevant to your amended request, being the invoice from
the Australian Government Solicitor to ACARA dated 20 May 2011 (
Invoice). I decide to
release the Invoice in part, and enclose a copy of the redacted Invoice. My reasons for
decision are at set out below
and document details are at
Attachment 2.
I advise that I have redacted from the Invoice the typed name of the solicitor and two (2)
signatures, in accordance with the terms of your amended FOI request. Under the FOI Act,
“document” includes any part of a paper on which there is writing. I find that I am providing
you with the document that you have requested. I am therefore not required to provide
reasons for these redactions.
(b) My Previous FOI Decision
I note that, in my previous FOI decision to you dated 4 May 2015 (
Previous FOI Decision), I
wholly exempted from disclosure the Education Council Paper and the supporting Legal
Advice.
3.
Diamond Decision
I refer to the decision of the Administrative Appeals Tribunal (
AAT) in the matter of Mark R
Diamond and Chief Executive Officer of the Australian Curriculum, Assessment and
Reporting Authority [2014] AATA 707 at
www.austlii.edu.au/au/cases/cth/aat/2014/707.html
(
Diamond Decision). In my view, the Invoice narrations concern the same issue as in the
Diamond Decision (simplistic league tables). In this case it is not about the
My School database (covered in the Diamond Decision), nor is it about the Legal Advice and the
Education Council Paper (covered in my Previous Decision). Instead, it is about the Invoice
narrations that relate exclusively to the Legal Advice.
The Education Council Paper (and the supporting Legal Advice) are documents that the
Education Council directed ACARA to provide to assist it in determining what action should
be taken as a result of media outlets publishing league tables. However, the fundamental
issues concerning the capacity for simplistic league tables to undermine the work that
ACARA and school authorities are trying to achieve, which were canvassed in the Diamond
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Decision, arise also in this matter, as the Invoice narrations cover aspects of the Legal
Advice.
In the Diamond Decision, the AAT affirmed the decision of the Freedom of Information
Commissioner to refuse to grant access to the document sought by Dr Diamond in his
request (the
My School database), except for the list of schools. The Diamond Decision runs
to 88 pages. It is a unanimous decision of Deputy President S.A. Forgie and Ms S. Taglieri,
Member. It answers the submissions put by Dr Diamond in that case.
In my view, the Diamond Decision provides clear and cogent reasoning. It is an authoritative
decision from the highest merits review body in the Commonwealth system. In making my
decision I have had careful regard to the Diamond Decision.
4.
ACARA’s position regarding school league tables
The issue of the publication of simplistic league tables is important to us and our
stakeholders, for good reason. Many of those reasons were canvassed in the Diamond
Decision. I have set out my general position in my earlier administrative access decision to
you dated 26 February 2015 and uploaded to the Right to Know website at
(www.righttoknow.org.au/request/copyright_in_my_school_website_c#incoming-3480).
In summary, the former Standing Council on School Education and Early Childhood, now the
Education Council, has expressed its opposition to simplistic school league tables on at least
six (6) different occasions [
heading 5.4]. In addition, the Education Council has also directed
ACARA on three (3) occasions to report to it on the work that ACARA is doing to prevent the
publication of school league tables.
Under sub-section 7(1) of the Australian Curriculum, Assessment and Reporting Authority
Act 2008 (
ACARA Act), ACARA is required to:
“perform its functions and exercise its powers in accordance with any directions given
to it by the Ministerial Council in writing”.
ACARA’s position, put simply, is that we have no option but to put into place strategies to
minimise the risk that third parties produce league tables, and also to do what is necessary
to prevent the publication of school league tables, in order to comply with previous directions
of the former Standing Council (now Education Council).
5.
Contextual factors
5.1 Who is ACARA
ACARA was established under the ACARA Act. ACARA’s functions under section 6 of the
ACARA Act include, relevantly (and in summarised form):
develop and administer a national school curriculum;
develop and administer national assessments; and
collect, manage and analyse student assessment data and other data relating to
schools and comparative school performance.
The work of ACARA relies on collaboration with a wide range of stakeholders including
Commonwealth, State and Territory governments.
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5.2 What is a simplistic league table
As you are aware, a simplistic school league table, in the context of national tests, is a table
in hard copy or online format which ranks or sorts schools simply on the basis of
performance in tests, without taking into account a range of other contextual factors, such as
family background, school location (metropolitan, remote, etc.), and other factors including
statistical uncertainty associated with performance indicators.
5.3 What is the Education Council
The Education Council (formerly the Standing Council on School Education and Early
Childhood) was launched on 1 July 2014 and is one of eight (8) Councils established under
arrangements set by the Council of Australian Governments (
COAG). The Education
Council provides a forum through which strategic policy on early childhood development,
school and university education can be coordinated at the national level, and through which,
information can be shared and resources used collaboratively towards the achievement of
agreed objectives and priorities. For more information, see the
Education Council website. For the purposes of this decision, a reference to the Education Council also includes a
reference to the former Standing Council on School Education and Early Childhood and the
former Ministerial Council for Education, Early Childhood Development and Youth Affairs.
5.4 Education Council says No to simplistic league tables
I advise that the Education Council has said no to simplistic league tables on at least six (6)
separate occasions (see table below).
Item
Date
Document and T
Comments
No.
doc No.
1. December
Melbourne
Page 17:
2008
Declaration
“
In providing information on
(http://scseec.edu.au
schooling, governments will ensure
/site/DefaultSite/files
that school-based information is
ystem/documents/R
published responsibly, so that any
eports%20and%20p
public comparisons of schools will
ublications/Publicati
be fair, contain accurate and verified
ons/National%20goa
data, contextual information and a
ls%20for%20schooli
range of indicators. Governments
ng/National_Declara
will not themselves devise simplistic
tion_on_the_Educati
league tables or rankings and
onal_Goals_for_You
privacy wil be protected”.
ng_Australians.pdf)
2. June 2009
Principles and
Education Council document.
protocols for
reporting on
“governments wil not publish simplistic
schooling in
league tables or rankings, and will put in
Australia,
place strategies to manage the risk that
third parties may seek to produce such
(http://scseec.edu.au
tables or rankings”.
/site/DefaultSite/files
ystem/documents/R
eports%20and%20p
ublications/Publicati
ons/Measuring%20a
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Item
Date
Document and T
Comments
No.
doc No.
nd%20reporting%20
student%20performa
nce/Principles%20a
nd%20protocols%20
for%20reporting%20
on%20schooling%2
0in%20Australia.pdf)
3. 15 April
11th MCEECDYA
Ministers reaffirmed:
2011
Meeting, Melbourne,
15 April 2011
“
their opposition to simplistic league
tables as counterproductive and harmful
to the educational purpose of schooling”.
4. 8 July 2011
Twelfth MCEECDYA At page 2:
meeting
communique
“
Ministers reiterated their strong
opposition to the publication of league
(www.scseec.edu.au
tables arising from My School data and
/site/DefaultSite/files
discussed with ACARA further actions
ystem/documents/C
that could be taken against breaches of
ommuniques%20an
the My School terms and conditions of
d%20Media%20Rel
use”.
eases/Previous%20
Council%20info%20
statements/MCEEC
DYA%20meeting%2
0info%20statements
/C12_Communique.
pdf)
5. Feb 2012
ACARA’s data
Endorsed out of session by the
access protocols
Education Council in Feb 2012, Para
36:
(www.acara.edu.au/
verve/_resources/D1
“
Users must act in accordance with the
2_1573__ACARA_D
written agreement which limits use of the
ata_Access_Protoco
data to the purpose stated by the
ls_2012.pdf)
applicant, prohibits attempts to identify
information (e.g., names of schools) that
has been de-identified to a necessary
level to prevent identification of an
individual student and the publication of
rankings of schools (simplistic league
tables)”.
6. 20 April
SCSEEC Meeting
At the Education Council meeting on
2012
20th April 2012
Friday 20 April 2012, the Education
(not in communique) Council:
“Affirms its opposition to the publication of
simplistic league tables as
counterproductive and harmful to the
educational purpose of schooling”.
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5.5 2011 My School release
In March 2011, the following occurred:
March 2011
ACARA published 2010 school data including aggregated school level
NAPLAN results on
My School (version 2.0)
(www.myschool.edu.au/)
March 2011
Media published tables of school comparisons (simplistic league tables)
based on 2010 NAPLAN data published on
My School
5.6 April 2011 direction provided by the Education Council to ACARA
On 15 April 2011 the Education Council met in Melbourne. This meeting followed the media
publication of league tables in March 2011. At the 15 April 2011 Education Council meeting,
the Education Council:
“Requested that ACARA as a matter of urgency provide Ministers by the end of April
2011 with advice on the effectiveness of the protection measures against the
construction of league tables contained in My School 2.0; and
Asked that ACARA outline for Ministers by the end of April 2011 what action it intends
to take in relation to breaches of the My School website’s terms and conditions”.
I have taken this quote from the affidavit of Robert William Randall, Chief Executive Officer,
ACARA, dated 4 November 2013, at para 24. Mr Randall was a witness before the AAT in
the Diamond Decision.
Under sub-section 7(1) of the ACARA Act, ACARA is required to:
“perform its functions and exercise its powers in accordance with any directions given
to it by the Ministerial Council in writing”.
5.7 Education Council Paper, Legal Advice and Invoice
The Education Council Paper and supporting Legal Advice were created in response to a
written direction from the Education Council to ACARA as a result of media publication of
simplistic league tables. In order to inform the paper to the Education Council, legal advice
was obtained from the Australian Government Solicitor. The Legal Advice is dated 28 April
2011, which is after the relevant Education Council meeting held on 15 April 2011. The
Invoice is dated 20 May 2011. I find that the Legal Advice was commissioned by ACARA to
inform its advice to the Education Council.
I note that the Invoice narrations relate exclusively to the Legal Advice. I find that the Invoice
relates exclusively to the Legal Advice.
6.
Sub-section 47B(a) – Commonwealth/State relations
6.1 Section 47B(a) of the FOI Act
Sub-section 47B(a) of the FOI Act states “a document is conditionally exempt if disclosure of
the document under this Act would, or could reasonably be expected to, cause damage to
relations between the Commonwealth and a State”.
The Commissioner’s Guidelines Part 6 at paragraph [6.38] states:
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“A decision maker may consider that disclosure would, or could reasonably be expected to
damage the
working relations of the Commonwealth and one or more States (s 47B(a)) (my
emphasis). ‘Working relations’ encompass all interactions of the Commonwealth and the
States1 from formal Commonwealth-State consultation processes such as the Council of
Australian Governments through to any working arrangements between agencies undertaken
as part of their day to day functions”.
6.2 Diamond Decision
In the Diamond Decision, the AAT found, relevantly, that:
a.
“…
there is no requirement that disclosure would, or could reasonably be expected to
cause damage to relations between the Commonwealth and all of the States; one
State is sufficient”: para 106.
b.
The Commonwealth, NSW and South Australia have identical positions. “
Although
differently expressed, it is clear from all three that there has been an expectation, as
well as a firm arrangement, that data supplied to the Commonwealth by means of
ACARA would be received, stored and managed by ACARA according to agreed
principles and protocols. The arrangements that South Australia has reached with its
schools and stakeholders is dependent upon ACARA’s continuing to act in accordance
with those principles and protocols. Release of the data would, in South Australia’s
view, have the potential to result in industrial disputes that could see schools
withdrawing from the NAPLAN testing regime”: para 108.
6.3 Education Council deliberations are confidential
The Education Council Paper (and the supporting Legal Advice) were created to inform
ongoing discussions within the Education Council regarding various media outlets who
published league tables and, more broadly, strategies for countering this including possible
changes to the
My School website. In my
Previous FOI Decision I found that:
“release of the Documents [
Education Council Paper and Legal Advice] could
reasonably be expected to cause damage to relations between the Commonwealth
and a State as they were prepared on an assumption of confidence and ongoing
discussions. This is reinforced by the Education Council’s Operating Protocols –
October 2012
(www.scseec.edu.au/site/DefaultSite/filesystem/documents/PDF/SCSEEC%20Operati
ng%20Protocols%20Final.pdf) at para [5.7] ‘documents prepared for the SCSEEC
(Education Council) should be treated as confidential, unless otherwise agreed by the
Council or senior officials, and only distributed on a strict need to know basis’. Both
Documents were prepared for the Education Council, in response to a direction by the
Education Council to ACARA. Unless otherwise agreed, the Education Council and
ACARA would be required to treat the Documents as confidential. If ACARA were to
release the documents unilaterally, this would fundamentally undermine the operating
protocol of the Education Council. It is reasonable to expect the Commonwealth-State
relations within the context of the Council to suffer as a consequence if the
Commonwealth breached protocols around confidentiality. This could in turn be
expected to undermine the willingness of the Council and its members to work
cooperatively with the Commonwealth (through ACARA or otherwise) on national
education initiatives”.
1 See
Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607.
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It is my judgement that the
Invoice narrations are conditionally exempt under sub-section
47B(a) of the FOI Act (Commonwealth/State relations) for the same reasons. That is, it is my
judgment that:
the Legal Advice was prepared to inform Education Council deliberations;
Education Council deliberations are expected to be confidential;
disclosing the Invoice narrations will disclose aspects of the confidential Legal Advice;
and
disclosing the Invoice narrations will therefore cause the harms that disclosing the
Legal Advice itself will cause (outlined above).
Accordingly, it is my judgement that release of the Invoice narrations under FOI would,
fundamentally:
adversely affect the continued level of trust or co-operation in inter-jurisdictional
relationships; and
adversely affect the administration of multiple continuing Commonwealth - State
projects being managed by ACARA.
I am satisfied that this amounts to damage to Commonwealth-State relations.
7.
Sub-section 47E(d) of the FOI Act - substantial adverse effect on the proper and
efficient conduct of ACARA’s operations
7.1 Sub-section 47E(d) of the FOI Act
Sub-section 47E(d) of the FOI Act states:
“A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
….
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency”.
The Commissioner’s Guidelines Part 6 at paragraph [6.110] notes that the AAT has upheld
the exemption where it was established that disclosure of the document could prejudice the
agency’s ability to perform its statutory functions2.
7.2 Diamond Decision
In the Diamond Decision, the AAT concluded that sub-section 47E(d) of the FOI Act applied
to conditionally exempt the
My School database, except for the list of schools. In applying
this conditional exemption the Tribunal looked at ACARA’s functions under section 6 of the
ACARA Act. The AAT explores this conditional exemption at paras [112 – 120] of the
Diamond Decision. I rely on this reasoning and it is not necessary for me to cover the same
ground.
7.3 Applying Diamond Decision
Relevantly for this matter, ACARA’s statutory functions include
“publish information relating
to school education, including information relating to comparative school performance”: sub-
section 6(e) of the ACARA Act.
2
Re Telstra Australia Limited and Australian Competition and Consumer Commission [2000] AATA 71.
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The Education Council Paper and supporting Legal Advice were created in response to a
written direction from the Education Council to ACARA as a result of media publication of
simplistic league tables. The Invoice relates exclusively to the Legal Advice and contains
narrations which disclose aspects of the Legal Advice. The Education Council is not an
advisory body but rather a governing body that ACARA is statutorily obliged to follow: sub-
section 7(1) of the ACARA Act. The Education Council’s Operating Protocols – October
2012
(www.scseec.edu.au/site/DefaultSite/filesystem/documents/PDF/SCSEEC%20Operating%2
0Protocols%20Final.pdf) at para [5.7] require the “documents prepared for the SCSEEC
(Education Council) should be treated as confidential”. In my view, release of the Invoice
narrations by ACARA outside the agreed Education Council’s Operating Protocols would
reasonably likely lead to:
1)
disclosure of aspects of the Legal Advice, causing the harms that disclosing the Legal
Advice itself would cause;
2)
a loss of confidence in ACARA;
3)
unrest among the nine (9) Education Ministers, the nine (9) Heads of Department, the
Secretariat to the Education Council and the Federal Minister’s office;
4)
a likely loss of future work;
5)
further losses in funding and other vital support; and
6)
ACARA being significantly impeded in carrying out its statutory functions, including
“publish information relating to school education, including information relating to
comparative school performance”: sub-section
6(e) of the ACARA Act.
In addition, on 31 October 2014, the Education Council agreed that NAPLAN Online will be
implemented from 2017 on an opt-in basis over two to three years (
Education Council
Decision)
(www.scseec.edu.au/site/DefaultSite/filesystem/documents/Communiques%20and%20Medi
a%20Releases/2014%20Communiques/Education%20Council%2031%20October%20Com
munique.pdf).
ACARA is in discussion with its funding partners about resources for its online assessment
work beyond the current financial year. ACARA does not expect to receive additional funding
in the current financial year, given the current fiscal environment. No funding decision has
been made about funding for future years.
Under section 6 of the ACARA Act, ACARA’s functions include, relevantly:
“develop and
administer national assessments”: sub-section 6(b) of the ACARA Act. I find that delivery of
NAPLAN online is part of this statutory function.
If ACARA were required to disclose the Invoice narrations under FOI, ACARA would be
placed in a very difficult position, as it would breach the Education Council protocols,
jeopardising trust and goodwill in ACARA, at a critical time when ACARA is in discussions
with its funding partners regarding the move to NAPLAN online. I find that it could
reasonably be expected that release of the Invoice narrations under FOI would have
damaging consequences for the Commonwealth and all States and Territories and would
have a substantial adverse effect on the proper and efficient conduct of the operations of
ACARA.
I also note that the Education Council Paper and Legal Advice focus on a number of matters,
primarily in relation to media organisations, as it was the publication of league tables by the
media that led to the direction from the Education Council to ACARA in April 2011. The
Legal Advice also focusses primarily on copyright. I am concerned that release of the Invoice
narrations by ACARA may facilitate the proliferation of league tables (including by
companies purporting to be media companies) by indicating:
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what measures ACARA has adopted in relation to the
My School website to minimise
the creation of league tables; and
the exemptions available to media organisations under various Australian laws.
Any proliferation of league tables would run counter to the position taken by the Education
Council (
heading 5.4). This would reasonably likely lead to a loss of confidence in ACARA
and all the other impacts noted in the second paragraph under this sub-heading.
It is my judgment that release of the Invoice narrations under FOI would reasonably be
expected to prejudice the agency’s ability to perform its statutory functions. I am satisfied
that this amounts to having a “substantial adverse effect on the proper and efficient conduct
of the operations” of ACARA.
8.
Public interest
It is my decision that the Invoice narrations are conditionally exempt under both of sub-
sections 47B(a) and 47E(d) of the FOI Act. Sub-section 11A(5) of the FOI Act provides that if
a document is conditional y exempt, it must be disclosed ‘unless (in the circumstances)
access to the document at that time would, on balance, be contrary to the public interest’.
I have taken into account the following factors in making my decision:
In favour of disclosure:
Of the four (4) factors favouring disclosure set out in sub-section 11B(3) of the FOI Act, one
is clearly not relevant (allow a person to access his or her own personal information). The
other three (3) factors are considered below:
a.
promoting the objects of the FOI Act (including all the matters set out in sections 3 and
3A) – There is clearly some public interest in knowing about the Invoice narrations in
relation to discussions that were occurring during 2011 in the Education Council
regarding simplistic league tables published by the media;
b.
informing debate on a matter of public importance – In my view, this is covered by the
point above; and
c.
promoting effective oversight of public expenditure – the Invoice narrations do
not contain any information in relation to ACARA’s expenditure. I place no weight against
this item.
I note that, in any event, ACARA has disclosed all the time and cost details noted on the
Invoice (these details have not been redacted). I have made the decision to disclose these
cost details taking into account the importance of promoting the effective oversight of public
expenditure.
Against disclosure:
The FOI Act does not specify any factors against disclosure. However the Guidelines include
a non-exhaustive list of such factors3. Of those factors listed in the Guidelines, the relevant
factors for this decision are that disclosure:
3 Guidelines [6.29].
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“(h) could reasonably be expected to prejudice an agency’s ability to obtain
confidential information”.
In this case, I decide that if ACARA discloses the Invoice narrations under FOI:
ACARA would disclose aspects of the Legal Advice, causing the harms that disclosing
the Legal Advice itself would cause; and
the Education Council is unlikely to share papers and other documents in relation to its
decisions, all of which are confidential, and which would be of benefit to ACARA.
The work of ACARA relies on collaboration with a wide range of stakeholders including
Commonwealth, State and Territory governments. I consider that the continued cooperation
and collaboration of the Commonwealth, States and Territories to further strategic policy in
relation to school education outweighs the public interest in disclosing the Invoice narrations.
“
(k) could reasonably be expected to harm the interests of an individual or group of
individuals”
The publication of league tables creates a strong risk of harm to schools and students. This
has been expressed many times before, including in the affidavit of Dr Jennifer Anne
Donovan, General Manager, Strategic Information and Reporting, within the New South
Wales Department of Education and Communities, affirmed on 4 November 2013, who was
a witness before the AAT in the Diamond Decision (
Dr Donovan’s Affidavit). At paragraph
10 of Dr Donovan’s affidavit, Dr Donovan states:
“10.
The NSW Department supported the concept of My School. However, from the
outset it was concerned about the delivery and presentation of data published by
My School. We were mindful of the risk of harm to schools and students if My
School generated tables ranking schools in particular geographical areas using
their aggregated NAPLAN scores (league tables), or if it labelled schools or
student groups as ‘the worst’ or ‘underperforming’. These concerns were largely
informed by the experience of the 1996 Year 12 cohort of Mount Druitt High
School, which the Daily Telegraph label ed as the “Class We Failed” in an article
published on 8 January 1997”.
It is clear that league tables are undesirable from a public policy perspective. Releasing the
Invoice narrations under FOI risks encouraging their creation, for the reasons outlined under
[
sub-headings 6.3 and 7.3], or diluting the effectiveness of the counter-measures ACARA
has taken and might take in the future.
Education Council Paper apparently released without authorisation to media outlet
I note that, apparently, someone released part or all of the Education Council Paper to
The
Australian, which published an article on 1 August 2011
(www.theaustralian.com.au/national-affairs/my-school-site-warned-off-suing-media/story-
fn59niix-1226105578220). In my analysis, I do not place much weight on the fact that the
Education Council Paper was apparently released in part or whole, without authorisation, to
a media outlet at one time. The Federal Court of Australia has ruled that an unauthorised
leak of information does not necessarily prejudice any exemption claimed: Ascic v Australian
Federal Police [1986] FCA 260 at [12].
My finding
For all these reasons, I find that the factors against disclosure outweigh the factors in favour
of disclosure. I decide to
not release the Invoice narrations under FOI.
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9.
Section 42 of the FOI Act (legal professional privilege)
9.1 Commissioner’s Guidelines, version 1.3, September 2013, Part 5
I refer to the Commissioner’s Guidelines, version 1.3, September 2013, Part 5
(
Commissioner’s Guidelines). In relation to legal professional privilege, the
Commissioner’s Guidelines provide (relevantly) as follows:
“The FOI Act does not define LPP for the purposes of the exemption. To determine the
application of this exemption, the decision maker needs to turn to common law
concepts of privilege….It is important that each aspect discussed below be addressed
in the decision maker’s statement of reasons”: para 5.116.
“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”: para 5.118.
9.2 Legal adviser-client relationship
The Commissioner’s Guidelines provide (relevantly) as follows:
“A legal adviser-client relationship exists where a client retains the services of a
solicitor (or barrister) for the purposes of obtaining professional advice. The existence
of the relationship is usually straightforward to establish where advice is received from
an independent external legal adviser. A typical example in a government context is
advice received by an agency from a law firm that is on an authorised list of panel
firms (including the Australian Government Solicitor)”: para 5.119.
I note that the legal advice in this case is from the Australian Government Solicitor (
AGS). I
find that this point is established.
9.3 Communication was for the purpose of giving or receiving legal advice
The Commissioner’s Guidelines provide (relevantly) as follows:
“The High Court has confirmed that the common law requires a dominant purpose test
rather than a sole purpose test4. The communication may have been brought into
existence for more than one purpose but will be privileged if the main purpose of its
creation was for giving or receiving legal advice or for use in actual or anticipated
litigation”: par 5.124.
I find that:
The Invoice narrations are part of the Invoice;
The Invoice relates exclusively to the Legal Advice;
4
Esso Australia Resources Ltd v Commissioner for Taxation (1999) 201 CLR 49.
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The Legal Advice was drafted in response to a written direction from the Education
Council to ACARA as a result of media publication of simplistic league tables. In order
to inform the paper to the Education Council, Legal Advice was obtained from the
AGS;
Raising the Invoice is part of the contract for legal services between ACARA and the
AGS in relation to the provision of the Legal Advice; and
The Invoice narrations were created for the dominant purpose of providing the Legal
Advice.
I find that this point is established.
9.4 Independent advice
In my view the Legal Advice is independent legal advice, for the reasons covered under sub-
heading [
9.2].
9.5 Waiver of privilege
The Commissioner’s Guidelines provide (relevantly) as follows:
“LPP is the client’s privilege to assert or waive”: par 5.129.
In this case, the client is ACARA. It is apparent that someone released part or all of the
Education Council Paper to
The Australian, which published an article on 1 August 2011
(www.theaustralian.com.au/national-affairs/my-school-site-warned-off-suing-media/story-
fn59niix-1226105578220). However that publication was not authorised by ACARA. The
Education Council Paper does not directly quote from the Legal Advice, and only
summarises a few paragraphs providing the conclusions of the Legal Advice. I find that the
unauthorised disclosure of the Education Council Paper did
not amount to ACARA waiving
privilege over the Legal Advice or the Invoice narrations.
9.6 Confidentiality
The Commissioner’s Guidelines provide (relevantly) as follows:
“LPP does not apply to a communication that is not confidential – that is, known only to
the client or to a select class with a common interest in the matter”: para 5.127.
“Whether the disclosure is inconsistent with maintaining confidentiality wil depend on
the circumstances of the case”: para 5.132.
The Education Council Paper does not directly quote from the Legal Advice, and only
summarises a few paragraphs of the Legal Advice. It was necessary to summarise these
paragraphs in order to adequately respond to the directions of the Education Council. I do
acknowledge that someone apparently released part or all the Education Council Paper to
The Australian without authorisation
. However, in my view, this does not change the
confidential character of the Legal Advice itself, and consequently the Invoice narrations. In
my view, the content of the Legal Advice, and the content of the Invoice narrations, were
never disclosed publicly.
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Attachment 2
No.
Title of document
Number of
Exemption
Grounds for deleting
pages
section(s)
(excluding
blanks)
1. Invoice from the Australian Government Solicitor to
2
S47B(a)
Invoice narrations -
ACARA dated 20 May 2011
damage relations between the
Commonwealth and a State
S 47E(d)
Invoice narrations - substantial
adverse effect on the proper and
efficient conduct of the operations
of an agency
S42
Invoice narrations - Legal
professional privilege
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