Decision notice dated 31 August 2023
Dear Commonwealth Ombudsman,
On 12 March 2024, in matter NSD 1076/2023 – Eli Turner v Commonwealth Ombudsman, Justice Perry of the Federal Court of Australia issued, by order:
a) a writ of certiorari quashing the decision of a delegate of the Commonwealth Ombudsman dated 31 August 2023; and
b) a writ of mandamus directing the Commonwealth Ombudsman to determine Mr Turner’s application according to law.
(https://comcourts.gov.au/file/Federal/P/...)
Prior to the issuance of the writs, the Commonwealth Ombudsman conceded that the decision dated 31 August 2023 is affected by jurisdictional error because the delegate erred in the exercise of their discretion by concluding that the “Office is limited to considering the reported conduct, rather than the impact of the abuse” and that this error was material.
Under the FOI Act 1982 (Cth), I request access to the decision notice (including the reasons in support of the decision), dated 31 August 2023, which was affected by jurisdictional error.
Yours faithfully,
Robert
OFFICIAL
Our ref: FOI-2024-80046
Dear Robert,
Freedom of Information request – Acknowledgment
I acknowledge receipt of your email dated 30 November 2024 to the Office
of the Commonwealth Ombudsman (the Office), in which you requested access
to documents under the Freedom of Information Act 1982 (FOI Act). Your
request for documents was in the following terms:
“On 12 March 2024, in matter NSD 1076/2023 – Eli Turner v Commonwealth
Ombudsman, Justice Perry of the Federal Court of Australia issued, by
order:
a) a writ of certiorari quashing the decision of a delegate of the
Commonwealth Ombudsman dated 31 August 2023; and
b) a writ of mandamus directing the Commonwealth Ombudsman to determine Mr
Turner’s application according to law.
([1]https://comcourts.gov.au/file/Federal/P/...)
Prior to the issuance of the writs, the Commonwealth Ombudsman conceded
that the decision dated 31 August 2023 is affected by jurisdictional error
because the delegate erred in the exercise of their discretion by
concluding that the “Office is limited to considering the reported
conduct, rather than the impact of the abuse” and that this error was
material.
Under the FOI Act 1982 (Cth), I request access to the decision notice
(including the reasons in support of the decision), dated 31 August 2023,
which was affected by jurisdictional error.”
Third party consultation
We are actively processing your FOI request and as a result of internal
consultations we have identified a document within scope. The document
captured in the scope of your request refers to personal information of a
third party. I have formed the view that this third party may wish to make
exemption contentions in accordance to section 27A of the FOI Act.
As I have determined that a consultation requirement applied, the time to
provide you with a decision on your FOI request has been extended by 30
days pursuant to s15(6) of the FOI Act.
Timeframes
The FOI Act requires us to provide notice of a decision on your request
within 30 days from the date we received a valid FOI request. With the s
27A extension of time, a decision for your request will be provided to you
on or before 29 January 2024. This 30-day period may be extended with your
consent or for other reasons. We will let you know if this happens.
If you have any questions, you may contact me via email at
[2][email address]
Kind regards,
Legal Team
Legal
Defence, Investigations, ACT & Legal Branch
1300 362 072
[3]A black and white logo [4][email address]
Description automatically
generated [5]ombudsman.gov.au
Level 5, 14 Childers St Canberra ACT 2600
The Office of the Commonwealth Ombudsman acknowledges the Traditional
Owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to Elders past and
present.
Artwork by Kevin Bynder, Whadjuk Nyungar Badimia Yamatji Artist.
The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.
References
Visible links
1. https://comcourts.gov.au/file/Federal/P/...
2. mailto:[email address]
4. mailto:[email address]
5. http://www.ombudsman.gov.au/
OFFICIAL
Dear Robert,
Please find attached the decision letter regarding your Freedom of
Information request (FOI-2024-80046).
If you have any questions, you may contact me via email at
[1][email address]
Kind regards,
Laura
Legal Officer
Defence, Investigations, ACT & Legal Branch
1300 362 072
[2]A black and white logo [3][email address]
Description automatically
generated [4]ombudsman.gov.au
Level 5, 14 Childers St Canberra ACT 2600
The Office of the Commonwealth Ombudsman acknowledges the Traditional
Owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to Elders past and
present.
Artwork by Kevin Bynder, Whadjuk Nyungar Badimia Yamatji Artist.
The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.
References
Visible links
1. mailto:[email address]
3. mailto:[email address]
4. http://www.ombudsman.gov.au/
Dear Laura Mackenzie,
FOI-2024-80046
I request internal review of your FOI decision by which you refused access to a decision notice, dated 31 August 2023, not to recommend a reparation payment to a defence abuse claimant, Mr Eli Turner.
S 47F
You claim that section 47F applies to the document of the Ombudsman’s delegate (a decision notice not to recommend a reparation payment), dated 31 August 2023.
The person affected by the delegate’s decision is Mr Eli Turner. I know this because this is public information: https://comcourts.gov.au/file/Federal/P/...
Mr Eli Turner joined the Australian Army when he was 21 years of age and was posted to a parachuting unit. After years of service, he was diagnosed with spondylosis. Mr Eli Turner’s service in the ADF is public information: https://www.abc.net.au/news/2020-05-08/w...
The argument that the decision notice should be be given access to wholesale because aspects of the decision notice, not to recommend reparation payments to Mr Eli Turner, contain Mr Turner’s name, or details about his service in the Australian Army, is unjustifiable.
S 47E(d)
You claim that section 47E(d) applies to the document of the Ombudsman’s delegate (a decision notice not to recommend a reparation payment), dated 31 August 2023.
The decision not to recommend a reparation payment, dated 31 August 2023, was the subject of judicial review: https://comcourts.gov.au/file/Federal/P/...
The judicial review application was taken up by NSW Legal Aid, which means it was entirely subsidised by taxpayers.
The Ombudsman expended $40,000 on legal services and advice in relation to NSD1076/2023 – Eli Turner v Commonwealth Ombudsman: https://www.ombudsman.gov.au/__data/asse... - see page 6 of 131 (CON000376).
Despite wasting $40,000 of taxpayer money on legal services, on 12 March 2024, the Commonwealth Ombudsman conceded that the decision not to recommend a reparation payment to Mr Eli Turner is affected by jurisdictional error because the delegate erred in the exercise of their discretion by concluding that the “Office is limited to considering the reported conduct, rather than the impact of the abuse”, and that this error was material: https://comcourts.gov.au/file/Federal/P/...
To claim that section 47E(d) of the FOI Act applies to a document, the predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is, the agency is undertaking its operations in an expected manner. Where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption will not apply. This is for reasons including the irrelevant factors that must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest.
Jurisdictional error discloses unlawful activity; that cannot be disputed. The decision notice also discloses the inefficiencies of the Ombudsman’s delegate in as much as the decision notice contains incompetent reasons for an unlawful decision.
Therefore, section 47E(d) has no application to the decision notice not to recommend a reparation payment to Mr Eli Turner.
Public interest
Australia’s veterans have been failed by the Defence Force and those who are tasked with oversight functions. Those failures were on full display in the Royal Commission into Defence and Veteran Suicide:
Evidence of the failures of the Defence Force Ombudsman (one of the hats worn by the Commonwealth Ombudsman) was publicly adverted to. For example, one serving member of the Australia Defence Force gave the following evidence to the Royal Commission (refer to the report of the Royal Commission):
I had not even gotten through Initial Employment Training before I was sexually harassed and nearly assaulted by an Instructor. I was verbally and physically bullied as a young soldier. I was sexually assaulted as a soldier whilst deployed to [redacted]. Throughout my career as a soldier and young officer, I was pressured to do things I didn’t want to do through peer pressure and workplace culture and rituals [and] have been verbally abused and threatened. The sexual harassment and assault have been reported to the Ombudsman and been ‘resolved’ … but it, along with the history of harassment, bullying, abuse and toxic workplace cultures have left me with a feeling of being raped by the organisation and cast aside.
As you can see, much like Mr Eli Turner, this person’s complaints to the Ombudsman were “resolved” (in quotation marks). In other words, the problem was not resolved by the Ombudsman. This member of the Australian Defence Force was failed by the Ombudsman, the official who has an oversight role in the defence abuse remediation scheme.
It is bad enough that our veterans are failed by the ADF. Why should they be forced to relive their trauma through litigation, which is not without its own pressures, because the Ombudsman’s officials (those tasked with oversight of key aspects of defence abuse remediation) fail to lawfully exercise the jurisdiction conferred on the Ombudsman by the Parliament?
Aside from the fact that, for the reasons stated, the conditional exemption under s 47E(d) has no application to the decision notice not to recommend a reparation payment to Mr Eli Turner, and that section 47F has no application to Mr Eli Turner’s personal information so far as that information is known (e.g. his name, his service as a member of the ADF, the fact that he was denied reparation payment for a defence abuse claim), it is in the public interest that the failures of the Ombudsman’s delegate are published so that the public is better able to scrutinise how our veterans are being let down by the very people tasked with supporting them in their darkest hours.
The evidence clearly points to failures on the part of the Commonwealth Ombudsman and his officials to serve our veterans lawfully.
For the reasons noted, your access refusal decision is unjustifiable and will not withstand scrutiny if the law is correctly applied. Please ensure that the reviewing officer is apprised of my reasons for review.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.righttoknow.org.au/request/d...
Yours faithfully,
Robert
OFFICIAL
Our ref: FOI-2024-80046
Dear Robert
Freedom of Information – request for Interal Reivew
I acknowledge receipt of your email dated 2 February 2025 to the Office of
the Commonwealth Ombudsman (the Office), in which you requested an
internal review of our office’s Freedom of Information (FOI) determination
dated 28 January 2025. You provided the following basis for the internal
review:
S 47F
You claim that section 47F applies to the document of the Ombudsman’s
delegate (a decision notice not to recommend a reparation payment), dated
31 August 2023.
The person affected by the delegate’s decision is Mr Eli Turner. I know
this because this is public information:
[1]https://comcourts.gov.au/file/Federal/P/...
Mr Eli Turner joined the Australian Army when he was 21 years of age and
was posted to a parachuting unit. After years of service, he was diagnosed
with spondylosis. Mr Eli Turner’s service in the ADF is public
information:
[2]https://www.abc.net.au/news/2020-05-08/w...
The argument that the decision notice should be be given access to
wholesale because aspects of the decision notice, not to recommend
reparation payments to Mr Eli Turner, contain Mr Turner’s name, or details
about his service in the Australian Army, is unjustifiable.
S 47E(d)
You claim that section 47E(d) applies to the document of the Ombudsman’s
delegate (a decision notice not to recommend a reparation payment), dated
31 August 2023.
The decision not to recommend a reparation payment, dated 31 August 2023,
was the subject of judicial review:
[3]https://comcourts.gov.au/file/Federal/P/...
The judicial review application was taken up by NSW Legal Aid, which means
it was entirely subsidised by taxpayers.
The Ombudsman expended $40,000 on legal services and advice in relation to
NSD1076/2023 – Eli Turner v Commonwealth Ombudsman:
[4]https://www.ombudsman.gov.au/__data/asse...
- see page 6 of 131 (CON000376).
Despite wasting $40,000 of taxpayer money on legal services, on 12 March
2024, the Commonwealth Ombudsman conceded that the decision not to
recommend a reparation payment to Mr Eli Turner is affected by
jurisdictional error because the delegate erred in the exercise of their
discretion by concluding that the “Office is limited to considering the
reported conduct, rather than the impact of the abuse”, and that this
error was material:
[5]https://comcourts.gov.au/file/Federal/P/...
To claim that section 47E(d) of the FOI Act applies to a document, the
predicted effect must bear on the agency’s ‘proper and efficient’
operations, that is, the agency is undertaking its operations in an
expected manner. Where disclosure of the documents reveals unlawful
activities or inefficiencies, this element of the conditional exemption
will not be met and the conditional exemption will not apply. This is for
reasons including the irrelevant factors that must not be taken into
account in deciding whether access to the document would, on balance, be
contrary to the public interest.
Jurisdictional error discloses unlawful activity; that cannot be disputed.
The decision notice also discloses the inefficiencies of the Ombudsman’s
delegate in as much as the decision notice contains incompetent reasons
for an unlawful decision.
Therefore, section 47E(d) has no application to the decision notice not to
recommend a reparation payment to Mr Eli Turner.
Public interest
Australia’s veterans have been failed by the Defence Force and those who
are tasked with oversight functions. Those failures were on full display
in the Royal Commission into Defence and Veteran Suicide:
Evidence of the failures of the Defence Force Ombudsman (one of the hats
worn by the Commonwealth Ombudsman) was publicly adverted to. For example,
one serving member of the Australia Defence Force gave the following
evidence to the Royal Commission (refer to the report of the Royal
Commission):
I had not even gotten through Initial Employment Training before I was
sexually harassed and nearly assaulted by an Instructor. I was verbally
and physically bullied as a young soldier. I was sexually assaulted as a
soldier whilst deployed to [redacted]. Throughout my career as a soldier
and young officer, I was pressured to do things I didn’t want to do
through peer pressure and workplace culture and rituals [and] have been
verbally abused and threatened. The sexual harassment and assault have
been reported to the Ombudsman and been ‘resolved’ … but it, along with
the history of harassment, bullying, abuse and toxic workplace cultures
have left me with a feeling of being raped by the organisation and cast
aside.
As you can see, much like Mr Eli Turner, this person’s complaints to the
Ombudsman were “resolved” (in quotation marks). In other words, the
problem was not resolved by the Ombudsman. This member of the Australian
Defence Force was failed by the Ombudsman, the official who has an
oversight role in the defence abuse remediation scheme.
It is bad enough that our veterans are failed by the ADF. Why should they
be forced to relive their trauma through litigation, which is not without
its own pressures, because the Ombudsman’s officials (those tasked with
oversight of key aspects of defence abuse remediation) fail to lawfully
exercise the jurisdiction conferred on the Ombudsman by the Parliament?
Aside from the fact that, for the reasons stated, the conditional
exemption under s 47E(d) has no application to the decision notice not to
recommend a reparation payment to Mr Eli Turner, and that section 47F has
no application to Mr Eli Turner’s personal information so far as that
information is known (e.g. his name, his service as a member of the ADF,
the fact that he was denied reparation payment for a defence abuse claim),
it is in the public interest that the failures of the Ombudsman’s delegate
are published so that the public is better able to scrutinise how our
veterans are being let down by the very people tasked with supporting them
in their darkest hours.
The evidence clearly points to failures on the part of the Commonwealth
Ombudsman and his officials to serve our veterans lawfully.
For the reasons noted, your access refusal decision is unjustifiable and
will not withstand scrutiny if the law is correctly applied. Please ensure
that the reviewing officer is apprised of my reasons for review.
Timeframes
The FOI Act requires us to provide notice of a decision on your request
within 30 days from the date we received a valid request for an internal
review. Therefore, a decision for your request will be provided to you on
or before 4 March 2025.
If you have any questions, you may contact me via email at
[6][email address]
Kind regards,
Alison
Defence, Investigations, ACT Ombudsman, Legal
1300 362 072
[7]A black and white logo [8][email address]
Description automatically
generated [9]ombudsman.gov.au
Level 5, 14 Childers St Canberra ACT 2600
Proud to be working on the lands of the Gadigal people of the Eora
Nation. The Office of the Commonwealth Ombudsman acknowledges the
Traditional Owners of Country throughout Australia and their continuing
connection to land, culture and community. We pay our respects to Elders
past and present.
The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.
References
Visible links
1. https://comcourts.gov.au/file/Federal/P/...
2. https://www.abc.net.au/news/2020-05-08/w...
3. https://comcourts.gov.au/file/Federal/P/...
4. https://www.ombudsman.gov.au/__data/asse...
5. https://comcourts.gov.au/file/Federal/P/...
6. mailto:[email address]
8. mailto:[email address]
9. http://www.ombudsman.gov.au/
OFFICIAL: Sensitive
Dear Robert
I refer to your request for an internal review dated 2 February 2025.
Please see attached internal review decision and do not hesitate to
contact me if you have any questions.
Yours sincerely
Alison (she/her)
Legal Officer
Defence, Investigations, ACT Ombudsman, Legal
1300 362 072
[1]A black and white logo [2][email address]
Description automatically
generated [3]ombudsman.gov.au
Level 5, 14 Childers St Canberra ACT 2600
Proud to be working on the lands of the Gadigal people of the Eora
Nation. The Office of the Commonwealth Ombudsman acknowledges the
Traditional Owners of Country throughout Australia and their continuing
connection to land, culture and community. We pay our respects to Elders
past and present.
The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.
References
Visible links
2. mailto:[email address]
3. http://www.ombudsman.gov.au/
Our reference: MR25/00335
By email: [FOI #12420 email]
Receipt of your IC review application
Thank you for your application for Information Commissioner Review (IC
review).
The Office of the Australian Information Commissioner (OAIC) is
considering your application.
If you wish to advise the OAIC of any changes to your circumstances,
including your contact details or if your FOI request has been resolved,
please write to [email address] and quote MR25/00335.
Yours sincerely
Freedom of Information Regulatory Group
Office of the Australian Information Commissioner
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
Our reference: MR25/00335
Agency reference: FOI-2024-80046
FOI Contact Officer
Commonwealth Ombudsman
By email: [1][email address]
Robert RTK
By email: [2][FOI #12420 email]
Information Commissioner review - Notice of commencement
Dear parties,
Please find attached notice of commencement for the above referenced
Information Commissioner review (IC review).
The OAIC requires the agency to engage with applicants to resolve or
narrow the issues in dispute. Applicants are encouraged to actively
communicate with the agency to facilitate this engagement.
Please note, Annexure A and B of the notice provide further information
about the obligations of parties during the IC review process.
Kind regards,
[3][IMG] Ishraq Quashem
Casework Support Officer
FOI Case Management Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [4][email address]
The OAIC acknowledges Traditional Custodians of Country across
Australia and their continuing connection to land, waters and
communities. We pay our respect to First Nations people,
cultures and Elders past and present.
[5]Subscribe to Information Matters
Notice:
The information contained in this email message and any attached files may
be confidential information, and may also be the subject of legal
professional privilege. If you are not the intended recipient any use,
disclosure or copying of this email is unauthorised. If you received this
email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra
time) and delete all copies of this transmission together with any
attachments.
References
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1. mailto:[email address]
2. mailto:[FOI #12420 email]
3. https://www.oaic.gov.au/
4. mailto:[email address]
5. https://www.oaic.gov.au/engage-with-us/n...
OFFICIAL
Dear Robert,
Consistent with our obligations under the 12 March 2025 section 54Z
notice, we are emailing you in regards to the Information Commissioner
review MR25/00335 for our Freedom of Information (FOI) decision
FOI-2024-80046, in an attempt to resolve or narrow the issues in dispute.
I note that the OAIC provided you with the section 54Z notice of
commencement (the letter) of the review on 12 March 2024.
The section 54Z notice outlines the obligation for the respondent (our
Office) to make reasonable attempts to engage with the applicant with an
aim to resolve or narrow the issues in dispute in the OAIC review.
Resolve and/or narrow issues in scope
We have understood the scope of the review is our reasons for refusing
access as set out in the decision (section 47F, and 47E(d)). Our Office
intends to rely on the access refusal decision of 28 January 2025 and the
internal review of this decision dated 20 February 2025.
Exemptions claimed
The exemption claims were made in relation to the one document falling
within scope, which was refused in full. This document was the decision
notice subject to the Eli Turner v Commonwealth Ombudsman litigation.
Section 47F
The document contains personal information of third parties in the form of
their full names, place of employment, a summary of the information
reported to our Office under the Defence Abuse Reparation Scheme, and
details of past service history in the Australian Defence Force. The
document also contains the signature of an Ombudsman staff member.
We explained in the decision letter that the information contained in the
document was not well known or readily available from public sources.
Given the sensitive nature of the details of the abuse reported, our
Office is still of the view that disclosure of the information is
unreasonable. We maintain that there is a significant risk that disclosure
could cause real harm to individuals and impede their right to privacy.
Section 47E(d)
Office receives reports of alleged abuse under the Defence Abuse
Reparation Scheme under Part IIA of the Ombudsman Act 1976 (Cth), and any
personal information provided by members of the public when completing the
statutory declaration is treated as confidential. Our Office is still of
the view that disclosure of confidential information obtained in
confidence from members of the public when reporting abuse could
reasonably be expected to prejudice the Office’s ability to obtain similar
information in the future as confidence in Office will be lost.
If this further explanation assists your understanding of the Office’s
position, we ask that you agree to either resolve these issues in dispute
or narrow the issues in dispute to the section 47E(d) exemption.
If you agree to the above, please let us know by return email by 5pm 17
April 2025.
Kind regards,
Laura
Legal Officer
Defence, Investigations, ACT & Legal Branch
1300 362 072
[1]A black and white logo [2][email address]
Description automatically
generated [3]ombudsman.gov.au
Level 5, 7 London Circuit, Canberra ACT 2600
The Office of the Commonwealth Ombudsman acknowledges the Traditional
Owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to Elders past and
present.
Artwork by Kevin Bynder, Whadjuk Nyungar Badimia Yamatji Artist.
The Office of the Commonwealth Ombudsman acknowledges the traditional
owners of country throughout Australia and their continuing connection to
land, culture and community. We pay our respects to elders past and
present.
References
Visible links
2. mailto:[email address]
3. http://www.ombudsman.gov.au/
IC review reference: MR25/00335
Dear Laura Mackenzie,
I wish to begin with an observation about how you have not engaged in this process in good faith.
On 12 March 2025, Ishraq Quashem wrote to both of us noting that the Information Commissioner had commenced the IC review process in relation to MR25/00335. The Information Commissioner's directions were included in that email.
In the email, the following was noted in the Annexure B of the notice of IC review:
"Respondents are required to make reasonable attempts to engage with applicants.10 The engagement should aim to resolve or narrow the issues in dispute in the IC review."
Paragraph 3.11 of the Information Commissioner's "Direction as to certain procedures to be followed by agencies and ministers in Information Commissioner reviews" provides that:
"Agencies and ministers must provide the IC with information to demonstrate the action(s) they have taken to engage with the IC review applicant to resolve or narrow the issues in dispute in the IC review, which may include:
that the agency or minister has taken genuine and reasonable steps to contact the IC review applicant, including any written correspondence issued to the applicant and any file notes of telephone calls made to the applicant
that the applicant has expressed a preference for the engagement to be undertaken other than by video or telephone conference (where applicable)
communications and any correspondence with the IC review applicant that demonstrates the attempts made by the parties to resolve the issues in dispute, including any proposals made by the agency or minister to resolve the IC review informally, and any response from the applicant
the outcome of the engagement between the agency or minister and the IC review applicant, including if the applicant has notified the agency or minister in writing that their IC review application is withdrawn as a result of the agency or minister’s contact with the applicant."
Ishraq Quashem noted, in the 12 March 2025 email, that the Ombudsman's responses and submissions were due to the OAIC on 23 April 2023. You waited five weeks from the date you received Ishraq's email to begin the process of engagement to "narrow" the scope of dispute with me, knowing full well that there was the Easter long weekend just prior to the 23 April 2023 deadline.
You waited 5 weeks to commence the "consultation" process to narrow the scope of dispute, emailed me on 15 April 2025, and gave me a deadline of 17 April 2025 to engage in consultations and narrow the scope of review.
In other words, you have not engaged, and plainly have no intention of engaging, with the Information Commissioner's directions in good faith. That is, so far as I am concerned, an abuse of process.
This is not the sort of "engagement" envisaged by the Information Commissioner or her staff members. Nor is it the sort of "engagement" that a reasonable member of the public would expect in the light of the Information Commissioner's directions. It is certainly not the sort of conduct to be expected from a legal officer in an integrity agency.
In your email to me, you have not at all taken the time to engage with the substance of my IC review application. As I noted in my application, your colleague Alison Kay had simply ignored aspects of my internal review application, and had advanced irrelevancies to support her conclusion. An example relates to the clear statement I made about the inapplicability of the conditional exemption claimed under paragraph 47E(d) of the FOI Act. I explicitly drew attention to the legal proposition that where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption will not apply. This is for reasons including the irrelevant factors that must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest.
As I noted in my internal review application, Jurisdictional error discloses unlawful activity; that cannot be disputed. The decision notice also discloses the inefficiencies of the Ombudsman’s delegate in as much as the decision notice contains incompetent reasons for an unlawful decision.
Therefore, section 47E(d) has no application to the decision notice not to recommend a reparation payment to Mr Eli Turner.
Rather than address that proposition, which is set out in the FOI Guidelines (paragraph 6.115), Alison Kay just stated, irrelevantly, that "the FOI Guidelines provide the section 47E(d) may apply to documents that relate to a complaint made to an investigative body, and I consider the section applies here." Of what relevance is that statement?
"The FOI Guidelines provide the section 47E(d) MAY apply to documents that relate to a complaint made to an investigative body", but the same Guidelines explicitly provide:
"where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption will not apply. This is for reasons including the irrelevant factors that must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest."
Therefore, where disclosure of the documents reveals unlawful activities or inefficiencies, this element of the conditional exemption will not be met and the conditional exemption WILL NOT apply.
In your "consultation" email of 15 April 2025, you have stated:
"Our Office is still ofthe view that disclosure of confidential information obtained in
confidence from members of the public when reporting abuse could
reasonably be expected to prejudice the Office’s ability to obtain similar
information in the future as confidence in Office will be lost.
If this further explanation assists your understanding of the Office’s
position, we ask that you agree to either resolve these issues in dispute
or narrow the issues in dispute to the section 47E(d) exemption."
You, much like Alison Kay, have not at all addressed the substance of my criticisms. That is unsurprising given that this three day "consultation", which should have been conducted over the six weeks provided by the Information Commissioner, is, in reality, a sham.
Similarly, you have failed to address the criticism about the application of section 47F that I registered in my internal review request.
In light of the fact that this "consultation" is, in reality, a sham, and that not genuine attempt has been made on your part, or the part of anybody in the Office of the Commonwealth Ombudsman, to engage with me in good faith to narrow the scope of dispute, the scope of dispute must remain as it is.
I am disappointed but unsurprised by the way that this "consultation" has been handled (disingenuously on the part of officials in the Office of the Commonwealth Ombudsman).
Yours sincerely,
Robert
IC review reference: MR25/00335
Dear Ishraq Quashem,
I wish to draw your attention to the "consultation" conducted by Laura Mackenzie in the Office of the Commonwealth Ombudsman in relation to MR25/00335.
You sent an email to both the Office of the Commonwealth Ombudsman and me on 12 March 2025 noting the commencement of IC review and the requirement for the respondent to commence consultation with the applicant (me) to narrow or eliminate the scope of dispute.
The Office of the Commonwealth Ombudsman waited 5 weeks before commencing that engagement (on 15 April 2025) (https://www.righttoknow.org.au/request/d...), noting that my responses to the consultation were due by close of business on 17 April 2025. Given that the following day is Good Friday (18 April 2025) and the following Monday is Easter Monday (21 April 2025), and both those days are public holidays, and that the Ombudsman's submissions are due to the OAIC on Wednesday 23 April 2025, the "consultation" engaged in has not been done in good faith. In the light of the Information Commissioner's directions, it is plainly the case that the "consultation" is disingenuous; it is a sham aimed at defeating the purpose of the Information Commissioner's directions.
My response to Laura Mackenzie, legal officer, is available here: https://www.righttoknow.org.au/request/d...
I wish to explicitly draw this sham consultation to your attention so that it does not go unnoticed.
Yours sincerely,
Robert
OFFICIAL
Our reference: FOI-2024-80046
OAIC reference: MR25/00335
Dear Mr Quashem
Thank you for providing the Office of the Commonwealth Ombudsman with an
opportunity to provide submissions in relation to this Freedom of
Information matter. I have attached the submissions to this email, and I
have copied in the applicant as well.
Our Office will separately provide the required documents outlined in
Table A of Part 3 of the Direction as to certain procedures to be followed
by agencies and ministers in Information Commissioner reviews.
Yours sincerely,
Kind regards
Laura
Legal Officer
Defence, Investigations, ACT & Legal Branch
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