LEX 81058 Decision Internal Review Decision final.pdf

If not delivered return to PO Box 7820 Canberra BC ACT 2610
12 September 2024

Our reference:  LEX 81058
LEX 79938
Frank N Fearless


Only by email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Sir / Madam
Freedom of Information Request – Internal Review Decision
I refer to your correspondence received by Services Australia (the Agency) on 13 August 2024,
seeking  an  internal  review  of  the  original  decision  (LEX  79938)  made  by  the  Agency  on
5  August  2024  in  relation  to  your  request  for  access  to  documents  under  the  Freedom  of
Information Act 1982 (FOI Act).
Background
On 4 June 2024, you requested access under the FOI Act to the following documents:
1.  The  internal  report  or  document  modelling  the  Agency's  ongoing  staffing
requirements. I am referring to the modelling created 'in the budget context' and
referred to by your CEO in the Budget Estimates hearing on the 3rd of June.
2.  Any  report  or  summary  outputs  (powerpoints)  produced  by  Korda  Mentha  when
they were engaged to independently review the performance of the Agency prior to
this year's budget.
On 5 August 2024, the Agency notified you it had decided to refuse access your request in
full as the documents requested were exempt on the basis they contained:
•  material submitted to the Cabinet for its consideration, and created for the dominant
purpose of briefing a Minister on a Cabinet Submission (section 34 exemption),
•  deliberative material, the disclosure of which would be contrary to the public interest
(section 47C conditional exemption).
On 13 August 2024, you requested an internal review of the original decision.
Summary of my internal review decision
I am authorised to make decisions under section 23(1) of the FOI Act, including internal review
decisions under section 54C of the FOI Act.
Consistent  with  the  requirements  of  section  54C(2)  of  the  FOI  Act,  I  have  made  a  fresh
decision.
Having considered the material before me, I have decided to refuse access to the documents
falling within the scope of your request.
PAGE 1 OF 14

I note, while the original decision maker considered that there were 9 documents in the scope
of  your  request,  I  consider  that  there  are  7  documents  in  the  scope  of  the  request.  This  is
because  I  have  considered  documents  7  –  9  (as  referred  to  in  the  original  decision),  to
comprise one document, being the final report.
I  have  decided  that  all  of  the  documents  are  exempt  under  the  FOI  Act  on  the  basis  they
contain:
•  material subject to the cabinet exemption (section 34 exemption), and
•  deliberative material, the disclosure of which would be contrary to the public interest
(section 47C conditional exemption).
Please  see  the  schedule  at  Attachment  A  for  a  detailed  list  of  the  documents  and  further
information regarding the reasons for my decision.
You can ask for a review of the decision
If  you  disagree  with  any  part  of  the  decision,  you  can  ask  for  an  external  review  by  the
Australian Information Commissioner. See  Attachment B for more information about how to
request an external review.
Further assistance
If you have any questions please email xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx.
Yours sincerely

Philippa
Authorised FOI Decision Maker
Freedom of Information Team
FOI and Reviews Branch | Legal Services Division
Services Australia
PAGE 2 OF 14

If not delivered return to PO Box 7820 Canberra BC ACT 2610

Attachment A
REASONS FOR DECISION
What you requested
On 4 June 2024, you requested access under the FOI Act to the following documents:
1.  The  internal  report  or  document  modelling  the  Agency's  ongoing  staffing
requirements. I am referring to the modelling created 'in the budget  context' and
referred to by your CEO in the Budget Estimates hearing on the 3rd of June.
2.  Any  report  or  summary  outputs  (powerpoints)  produced  by  Korda  Mentha  when
they were engaged to independently review the performance of the Agency prior to
this year's budget.
On 5 August 2024, the Agency notified you of the original decision.
Your internal review request
On 13 August 2024, you requested an internal review of the original decision, and contended
the application of sections 34 and 47C over the documents. Your submissions have not been
reproduced due to length, but have been given due regard.
What I took into account
In reaching my decision I took into account:
•  your original request dated 4 June 2024
•  your internal review request dated 5 August 2024
•  the documents falling within the scope of your request
•  whether the release of the material would be in the public interest
•  consultation with the Department of Prime Minister and Cabinet
•  consultations with Agency officers about:
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 decision
I am authorised to make decisions under section 23(1) of the FOI Act, including internal review
decisions under section 54C of the FOI Act.
I have decided all documents within the scope of your request are exempt under the FOI Act.
My  findings  of  fact  and  reasons  for  deciding  the  exemptions  apply  to  the  documents  are
discussed below.
PAGE 5 OF 14

Section 34 of the FOI Act – Cabinet Documents
I have applied the exemption in section 34 of the FOI Act to all documents within the scope of
your request.
Section 34 of the FOI Act relevantly provides:

General Rules
(1)  A document is an exempt document if:
(a)  both of the following are satisfied:
(i)  it  has  been  submitted  to  the  Cabinet  for  its  consideration,  or  is  or  was
proposed by a Minister to be so submitted;
(ii)  it  was  brought  into  existence  for  the  dominant  purpose  of  submission  for
consideration by the Cabinet; or
(b)  it is an official record of the Cabinet; or
(c)  it was brought into existence for the dominant purpose of briefing a Minister on
a document to which paragraph (a) applies; or
(d)  it is a draft of a document to which paragraph (a), (b) or (c) applies.
(2)  A  document  is  an  exempt  document  to  the  extent  that  it  is  a  copy  or  part  of,  or
contains an extract from, a document to which subsection (1) applies.
(3)  A  document  is  an  exempt  document  to  the  extent  that  it  contains  information  the
disclosure  of  which  would  reveal  a  Cabinet  deliberation  or  decision,  unless  the
existence of the deliberation or decision has been officially disclosed.
Document 7
I have applied the exemption in section 34(1)(a) of the FOI Act to Document 7. I am satisfied
on  information  provided  by  Agency  officers,  and  consultation  with  the  Department  of  Prime
Minister and Cabinet, that Document 7 meets the criteria in section 34(1)(a)(i).
Further, I am satisfied Document 7 was brought into existence for the dominant  purpose of
submission for consideration by Cabinet (section 34(1)(a)(ii)). The Information Commissioner
in  Rex  Patrick  and  Department  of  the  Prime  Minister  and  Cabinet  (No.  2)  (Freedom  of
information)  [2022]  AICmr  66  outlined  the  principles  which  are  relevant  in  determining  the
dominant purpose of the document.1 This is a question of fact. Having regard to the material
available to me, consultation with Agency officers about the nature of Document 7, it is clear
on  the  evidence  available  that  Document  7  was  brought  into  existence  for  the  dominant
purpose of being submitted for consideration by the Cabinet.
I am satisfied, from the material available to me and consultation with Department of Prime
Minister and Cabinet, Document 7 is an exempt document having regard to section 34(1)(a)
of the FOI Act.

1 Rex Patrick and Department of the Prime Minister and Cabinet (No. 2) (Freedom of information) [2022]
AICmr 66 at [6].
PAGE 6 OF 14

Documents 1 - 4
Section 37(1)(d) of the FOI Act provides that a document is exempt if it is a draft of a document
to  which  section  34(1)(a)  applies.  It  is  clear  from  examination  of  the  documents  and  the
progression  of the  documents,  Documents  1  – 4,  as  outlined  in the  Schedule,  are  drafts  of
Document 7. Accordingly, I am satisfied that these documents are exempt documents pursuant
to section 34(1)(d) of the FOI Act.
Documents 5 - 6
Section 34(2) of the FOI Act provides that a document is an exempt document to the extent
that  is  a  copy  or  part  of,  or  contains  an  extract  from,  a  document  to  which  subsection  (1)
applies.  Having regard to the content of  Documents 5 and 6, I am satisfied they  contain, in
their entirety, material to which subsection 34(1) applies.
Exceptions
The FOI Act provides the following exceptions to the Cabinet exemption:
Exceptions
(4) A document is not an exempt document only because it is attached to a document
to which subsection (1), (2) or (3) applies.
Note: However, the attachment itself may be an exempt document.
(5) A  document  by  which  a  decision  of  the  Cabinet  is  officially  published  is  not  an
exempt document.
(6) Information in a document to which subsection (1), (2) or (3) applies is not exempt
matter  because  of  this  section  if  the  information  consists  of  purely  factual  material,
unless:
(a) the  disclosure  of  the  information  would  reveal  a  Cabinet  deliberation  or
decision; and
(b) the  existence  of  the  deliberation  or  decision  has  not  been  officially
disclosed.
I am satisfied the documents do not fall within the exceptions provided for in subsection (4)
and (5). Further, having regard to the actual content of the documents, I am satisfied that to
the extent that any purely factual material is contained in the documents, it is so intertwined
with  the  deliberative  material  relevant  to  the  report,  that  it  is  not  reasonably  practicable  to
separate.
I have had due regard to your submissions in relation to the application of section 34 of the
FOI Act, including the commentary from the Information Commissioner that assumptions are
purely factual.2 I note this point was specifically addressed, and overturned, on review of the
Information Commissioner’s decision by the Administrative Appeals Tribunal.3 Further, the FOI
Guidelines provide that while ‘purely factual material’ includes material such as statistical data,
surveys and factual studies, a projection or prediction would not be considered purely factual.4

2 Justin Warren and Services Australia (Freedom of information) [2019] AICmr 70 at [66].
3 Warren; Services Australia and (Freedom of information) [2022] AATA 4191 at [222] – [223] per Deputy
President Britten Jones.
4 Guidelines at 5.93.
PAGE 7 OF 14

Therefore, I consider that modelling assumptions are not purely factual, as they are projections
of future events.
I  have  noted  your  reference  to  the  recent  Full  Court  decision  in  Warren  v  Chief  Executive
Officer,  Services  Australia  [2024]  FCAFC  73.  In  this  matter,  the  plurality  considered  the
construction  of  section  34(3)  of  the  FOI  Act,  which  provides  that  a  document  is  exempt
document  to  the  extent  that  it  contains  information  the  disclosure  of  which  would  reveal  a
Cabinet deliberation or decision, unless the existence of the deliberation or decision has been
officially  disclosed.  I  have  considered  your  submission,  and  note  while  the  decision  was
officially disclosed within the meaning of section 34(3) and having regard to the reasoning at
paragraph [168], the  exemption  in  section  34(3)  operates  on the  deliberation  or  decision  of
Cabinet.  However,  I  consider  that  the  exemption  under  section  34(3)  does  not  apply  in  the
present matter.
The  plurality’s  consideration  focussed  on  the  meaning  of  “official  disclosure”  within  the
meaning  of  section  34(3).5  This  is  distinct  from  the  exception  provided  for  in  section  34(5),
which goes to “a document by which a decision of the Cabinet is officially published”.
I am satisfied that the exemption in section 34(5) of the FOI Act does not apply to the requested
documents as they are not documents by which a decision of the Cabinet has been officially
published.
Conclusion
I have decided all documents within the scope of your request are exempt under section 34 of
the FOI Act. Furthermore, I am satisfied that none of the exemptions provided for in section 34
apply. Therefore, I have decided to not release the documents to you.
Section 47C of the FOI Act – Deliberative matter
I have applied the conditional exemption in section 47C of the FOI Act to all documents within
the scope of your request.
Deliberative matter
Subsection 47C(1) of the FOI Act provides:
A document is conditionally exempt if its disclosure under this Act would disclose matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in
the  course  of,  or  for  the  purposes  of,  the  deliberative  processes  involved  in  the
functions of:
(a) an agency…
Subsection  47C(2)  of the  FOI  Act  provides  deliberative  matter  does not  include  operational
information or purely factual material.

5 Repeated in identical terms in section 34(6).
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In effect, subsection 47C(3) of the FOI Act provides deliberative matter does not include:
•  reports of scientific or technical experts
•  reports of a body or organisation, or
•  the record of a formal statement of reasons.
Paragraph 6.57 of the Guidelines provides:
A deliberative process may include the recording or exchange of:
•  opinions
•  advice
•  recommendations
•  a  collection  of  facts  or  opinions,  including  the  pattern  of  facts  or  opinions
considered
•  interim decisions or deliberations.
And further, at paragraph 6.54
The  action  of  deliberating,  in  common  understanding,  involves  the  weighing  up  or
evaluating of the competing arguments or considerations that may have a bearing upon
one's course of action. In short, the deliberative processes involved in the functions of
an agency are its thinking processes – the processes of reflection, for example, upon
the wisdom and expediency of a proposal, a particular decision or a course of action.
Is the material deliberative?
In  Harris  v  Australian  Broadcasting  Corporation  (1983)  50  ALR  551,  the  word  ‘deliberation’
was considered by Beaumont J:
… “deliberation” suggests not only collective discussion but collective acquisition and
exchange of facts preliminary to ultimate decision.
The plurality in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 at 606
said:
As a matter of ordinary English the expression “deliberative processes” appears to us
to  be  wide  enough  to  include  any  of  the  processes  of  deliberation  or  consideration
involved in the functions of an agency. “Deliberation” means “The action of deliberating:
careful  consideration  with  a  view  to  decision”:  see  The  Shorter  Oxford  English
Dictionary. The action of deliberating, in common understanding, involves the weighing
up or evaluation of the competing arguments or considerations that may have a bearing
upon  one’s  course  of  action.  In  short,  the  deliberative  processes  involved  in  the
functions  of  an  agency  are  its  thinking  processes  —  the  processes  of  reflection,  for
example,  upon the  wisdom  and  expediency  of  a  proposal,  a  particular  decision  or  a
course of action.
I am satisfied all of the documents within the scope of your request contain deliberative matter,
being  advice  and  recommendations  which  has  been  prepared  to  assist the  Commonwealth
(including  Cabinet)  to  understand  and  make  decisions  in  relation  to  the  efficiency  of  the
Agency. I am satisfied the exempt material is clearly deliberative in nature.
PAGE 9 OF 14

Does the material contain operational information?
Section 47C(2) of the FOI Act and paragraph 6.48 of the Guidelines provides that deliberative
material does not include operational information (as defined in the FOI Act) or purely factual
information.
Section 8A  of the  FOI  Act  defines  operational  information  as  information which assists  ‘the
agency  to  perform  or  exercise  the  agency’s  functions  or  powers  in  making  decisions  or
recommendations affecting members of the public’.
There  is  no  information  contained  within  the  material  which  could  be  properly  classified  as
operational information.
Is the material purely factual in nature?
As  discussed  above,  I  have  noted  your  contention  that  modelling  assumptions  are  purely
factual material. However, in line with case law and the Guidelines, a projection or prediction
of  a  future  event  would  not  usually  be  considered  purely  factual,  and  therefore  I  consider
modelling assumptions are not purely factual, as they are a projection of future events.
Paragraph 6.70 of the FOI Guidelines provides:
'Purely factual material’ does not extend to factual material that is an integral part of
the deliberative content and purpose of a document, or is embedded in or intertwined
with the deliberative content such that it is impractical to excise it.
Without disclosing the exempt material, it is clear on the face of the document that the material
to which this exemption has been applied does not constitute purely factual information, and
to  the  extent  it  does,  it  is  intertwined  with  the  deliberative  material  and  is  not  reasonably
practicable to separate.
Do any exceptions apply to the documents?
The section 47C conditional exemption does not apply to the types of documents specified in
section 47C(3) of the FOI Act.
I am satisfied:
•  the material is not a report on scientific or technical matters
•  the Agency is not a body prescribed by the regulations, and
•  the material to which this exemption has been applied is not a record or formal
statement of the reasons for a final decision given in the exercise of a power or of
an adjudicative function.
Accordingly,  I  am  satisfied  the  documents  within  the  scope  of  the  request  are  deliberative
matter captured under section 47C of the FOI Act.
PAGE 10 OF 14

Public interest considerations
Section 11A(5) of the FOI Act provides:
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.
When weighing up the public interest for and against disclosure under section 11A(5) of the
FOI Act, I have taken into account relevant factors in favour of disclosure. In particular, I have
considered the extent to which disclosure would:
•  promote the objects of the FOI Act
•  promote  effective  oversight  of  public  expenditure,  including  efficiency  of  the
Agency’s forecasted budget position to support its functions
•  increasing  scrutiny,  discussion,  comment  and  review  of  the  Government’s
activities, in particular its expenditure of money, and
•  inform public debate about the recommendations made in regards to the Agency.
However, I have also considered relevant factors weighing against disclosure, indicating that
access would be contrary to the public interest. In particular, I have considered the extent to
which disclosure could reasonably be expected to:
•  undermine the essential public interest in the protection of Cabinet documents and the
confidentiality  of  Cabinet  deliberations,  including  the  information  that  provides
recommendations and strategies for Cabinet discussion, and
•  prejudice  the  confidentiality  of  reports  provided  to  Cabinet  allowing  for  an  informed
budget process, which accords with conventions of responsible government.
While  I  have  noted  a  variety  of  public  interest  factors  in  favour  of  disclosure,  including
considering  the  contentions  raised  in  your  request  for  internal  review,  I  have  nevertheless
given  significant  weight  to  the  long  standing  public  interest  in  preserving  Cabinet
confidentiality, as I consider there are strong considerations of public policy militating against
disclosure of documents that were before Cabinet.
On balance, I have decided the public interest in disclosing the documents is outweighed by
the public interest against disclosure.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI
Act in making this decision.
Conclusion
In  summary, I  am satisfied  the  documents  within  the  scope  of  the  request  are  conditionally
exempt under section 47C of the FOI Act. Furthermore, I have decided that on balance it would
be contrary to the public interest to release this information.

PAGE 11 OF 14

Summary of my internal review decision
In conclusion, I have decided to refuse access to the documents falling within the scope of
your request.
I  have  decided  that  all  of  the  documents  are  exempt  under  the  FOI  Act  on  the  basis  they
contain:
•  material subject to the cabinet exemption (section 34 exemption), and
•  deliberative material, the disclosure of which would be contrary to the public interest
(section 47C conditional exemption).
PAGE 12 OF 14

If not delivered return to 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 internal review decision
If you still believe a decision is incorrect, the FOI Act gives you the right to apply for an external
review of the internal review decision. Under section 54M of the FOI Act, you can apply for a
review of an FOI decision by the Australian Information Commissioner. There are no fees for
this review.
You have 60 days to apply in writing for review by the Australian Information Commissioner.
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

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  Agency’s
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
PAGE 13 OF 14

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.

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