23 Marcus Clarke Street
Canberra ACT 2601
GPO Box 3131
Canberra ACT 2601
Our ref:
PRJ1008007
Contact officer:
FOI Team
tel: (02) 6243 1111
Contact phone:
02 6243 1244
fax: (02) 6243 1199
23 June 2025
www.accc.gov.au
Mr. Squiggle
Sent via email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr. Squiggle
Decision on freedom of information request
I refer to your email dated 25 March 2025 in which you request access, under the
Freedom of Information Act 1982 (Cth) (the Act), to:
‘In the period 1 October 2024 to 31 January 2025:
1. Any advice given to senior ACCC officials with regard to their Qantas Chairman's
Lounge membership
2. Any documents detailing the decisions made by the senior ACCC officials to resign
their Qantas Chairman's Lounge membership (or not resign)
3. Any documents that detail any real or perceived reputational issues, code of
conduct issues, or conflict of interest issues, with regard to senior ACCC officials (or
any other ACCC staff) holding Qantas Chairman's Lounge membership
4. Any instructions/advice/communications from the ACCC agency head to lower level
senior officials that are related to Qantas Chairman's Lounge membership
*By ‘senior ACCC officials’ I mean anyone considered senior enough by Qantas/Virgin to
have been invited to their exclusive airline lounges.
*By ‘ACCC agency head’ I mean the ACCC Chair and the ACCC Chief Executive Officer.
*By ‘lower level senior ACCC officials’ I mean staff who might have an exclusive lounge
membership, but are not the Chair or CEO
Decision
I have identified 19 documents that fall within the scope of your request. I have
decided to
refuse/release these documents to you in accordance with the Schedule
(Attachment A). My detailed reasons for decision are set out below.
Your review rights are set out in Attachment B.
I am authorised under s.23 of the Act to make this decision.
Reasons for decision
Section 47C of the FOI Act- Documents disclosing deliberative matter – document 13
Section 47C of the FOI Act permits conditional exemption of a document if its release
would disclose deliberative matter.
This conditional exemption exists where each of the following requirements are met:
1. the information within the scope of the request includes deliberative matter,
2. the deliberative matter was obtained, prepared or recorded in the course of,
or for the purposes of, deliberative processes, and
3. the deliberative processes were involved in the functions exercised by or
intended to be exercised by an Australian Government agency or minister.
Deliberative matter and deliberative processes
Paragraphs 6.47 and 6.48 of the FOI Guidelines set out the following:
Deliberative matter is content that is in the nature of, or relating to either:
•
an opinion, advice or recommendation that has been obtained, prepared
or recorded or
•
a consultation or deliberation that has taken place, in the course of, or for
the purposes of, a deliberative process of the government, an agency or
minister (s 47C(1)).
Deliberative matter does not include operational information or purely factual
material (s 47C(2)). ‘Operational information’ is defined in s 8A and is information
that an agency must publish under the Information Publication Scheme (see Part
13 of these Guidelines).
And paragraph 6.54 of the FOI Guidelines sets out that ‘a deliberative process
involves the exercise of judgement in developing and making a selection from
different options’ and quotes from
Waterford and Department of Treasury (No 2):
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. Deliberations on policy matters undoubtedly come within this
broad description.
I find that the document 13 contains deliberative matter recorded for the purpose of a
deliberative process as per the scope of s 47C(1) of the FOI Act. The document
records a deliberative process within the ACCC concerning the application of the
ACCC’s integrity policies to particular factual scenarios in the process of preparing
external reporting under the broader APS Integrity Framework. In particular, the
document records opinions given, consultation undertaken and the reasoning applied
to certain positions taken as ultimately recorded in the ACCC’s Gifts and Hospitality
Register.
Related to functions exercised by or intended to be exercised by an Australian
Government agency
Under the FOI Act, the functions of an agency include the non-policy decision
making processes required when carrying out agency functions. Relevantly here, this
would include an agency’s integrity processes undertaken in compliance with the
broader APS frameworks and policies on integrity.
I find that disclosure of the document would disclose opinion, advice and details of
deliberation that has taken place in the deliberative processes of the ACCC related to
the integrity functions of the agency. The document records the consultation process
undertaken and the opinions expressed during that process and that ‘thinking’ is
expressly reflected in the document.
As a result, I find the document conditionally exempt under section 47C of the FOI
Act. Nonetheless I must give access to the document unless, in the circumstances,
access at this time would on balance be contrary to the public interest.
The public interest
Section 11A(5) provides that where a document is conditionally exempt, access to
the document must be given, unless (in the circumstances) access to the document
at that time would, on balance, be contrary to the public interest. Subsection 11B(3)
of the FOI Act provides a list of public interest factors favouring disclosure. The FOI
Guidelines at paragraph 6.231 also provide a non-exhaustive list of public interest
factors favouring disclosure.
Having regard to the factors favouring disclosure set out by the FOI Act and the FOI
Guidelines, I consider that disclosure of the conditionally exempt document
containing deliberative matter would promote the objects of the FOI Act.
That public interest factor favouring disclosure must be balanced against any public
interest factors that weigh against disclosure of the deliberative matter at issue.
The FOI Guidelines, at paragraph 6.233, contain a non-exhaustive list of factors
against disclosure. In my view, the factors that weigh against the disclosure of the
information at issue in this case include that the disclosure of that deliberative matter
could reasonably be expected to:
• adversely impact the operations, including the management, of the ACCC
by inhibiting candour which would negatively impact the ACCC’s ability to
effectively and wholistical y consider integrity matters.
Frankness and candour, in relation to the internal processes of considering integrity
matters is imperative to a pro-integrity culture that considers issues as they arise
from every angle. Those internal processes wil be substantially impacted if decision
makers are unable to be fully briefed and to consider all aspects of the factual
scenario and its impact (perceived or otherwise) on the operations of the agency. In
making my decision I have weighed up the importance of making government
information available such that there can be increased scrutiny, discussion and
review of government’s activities against the importance of ensuring that government
may function effectively and efficiently, which includes internal processes that
support frank and robust consideration of integrity matters.
In weighing these factors, I have not taken into account any of the irrelevant factors
set out in section 11B(4) of the FOI Act, such as seniority of the author,
embarrassment to the Commonwealth, misinterpretation or misunderstanding of the
document, or confusion or unnecessary debate resulting from disclosure of the
document.
On balance, I have concluded that there is minimal public interest in the deliberative
matter contained in the document being known, this is especially so where the
decisions made following such deliberations are publicly available via the agency’s
Gifts and Hospitality Register.
I consider that, in the circumstances and taking into account the above, on balance,
disclosure of the information is contrary to the public interest. Accordingly, I have
decided that the documents are exempt under section 47C of the FOI Act.
Section 47F of the FOI Act: unreasonable disclosure of personal information about
any person - documents 9, 10, 11, 12, 14, 15, 16
Section 47F of the FOI Act provides that a document is conditionally exempt if its
disclosure would involve the unreasonable disclosure of personal information of any
person.
Personal information is defined in subsection 4(1) of the FOI Act as having the same
meaning as in the
Privacy Act 1988 (
Privacy Act). The Privacy Act defines ‘personal
information’ to mean:
...information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
A range of personal information is contained in the documents the subject of your
request. That personal information extends beyond the names and ACCC email
addresses of the ACCC Commissioners specified in your request but also includes
the personal information of relatively junior staff at the ACCC and Qantas, and the
specific account numbers allocated to ACCC Commissioners by Qantas.
In relation to whether disclosure of the material under the FOI Act would involve an
unreasonable disclosure of personal information, subsection 47F(2) of the FOI Act
provides that a decision maker must have regard to:
• the extent to which the information is well known;
• whether the person to whom the information relates is known to be (or to
have been) associated with the mat ers dealt with in the document;
• the availability of the information from publicly accessible sources; and
• any other matters the agency considers relevant.
Consistent with
FG and National Archives of Australia [2015] AICmr 26, the FOI
Guidelines (made by the Information Commissioner pursuant to section 93A of the
FOI Act), at paragraph 6.138, explain that other relevant factors include:
• the nature, age and current relevance of the information;
• any detriment that disclosure may cause to the person to whom the
information relates;
• any opposition to disclosure expressed or likely to be held by that person;
• the circumstances of an agency’s collection and use of the information;
• the fact that the FOI Act does not control or restrict any subsequent use or
dissemination of information released under the FOI Act;
• any submission an FOI applicant chooses to make in support of their
application as to their reasons for seeking access and their intended or
likely use or dissemination of the information; and
• whether disclosure of the information might advance the public interest in
government transparency and integrity.
Having regard to the factors set out above, I do not consider it unreasonable to
disclose certain personal information of current and former ACCC Commissioners
contained within the documents the subject of your request – specifically, the names
and ACCC email addresses of those persons.
In respect of the other personal information contained within the documents that fall
within the scope of your request, I note that information is not well known or widely
available. Further, the disclosure of the personal information at issue will do little, if
anything, to advance the public interest in government transparency and integrity.
Accordingly, I am of the view that the personal information of relatively junior staff at
the ACCC and Qantas and the personal account numbers assigned by Qantas to
Commissioners (and as contained in the documents the subject of your request) is
conditionally exempt under section 47F of the FOI Act.
The public interest
Subsection 11A(5) of the FOI Act provides that an agency cannot refuse access to
conditionally exempt documents unless giving access would, on balance, be contrary
to the public interest. Subsection 11B(3) of the FOI Act provides a list of public
interest factors favouring disclosure. The FOI Guidelines at paragraph 6.231 also
provide a non-exhaustive list of public interest factors favouring disclosure.
Having regard to the factors favouring disclosure set out by the FOI Act and the FOI
Guidelines, a relevant public interest factor in favour of the disclosure of the personal
information I consider to be conditionally exempt is that disclosure of that personal
information may promote the objects of the FOI Act.
That public interest factor favouring disclosure must be balanced against any public
interest factors that weigh against disclosure of the personal information at issue.
The FOI Guidelines, at paragraph 6.233, contain a non-exhaustive list of factors
against disclosure. In my view, the factors that weigh against the disclosure of the
personal information at issue in this case include that the disclosure of that personal
information could reasonably be expected to:
• adversely impact the operations, including the management, of the ACCC
by providing direct contact details of staff outside established
communication channels; and
• unreasonably prejudice the protection of affected individual’s right to
privacy in respect of their private affairs.
In addition to those factors weighing against the disclosure of the personal
information at issue, I am of the view that the disclosure of the personal information
which I consider to be conditionally exempt wil not further facilitate (beyond the
balance of information contained in the documents the subject of your request)
scrutiny and review of the actions of government or otherwise advance the public
interest in government transparency and integrity.
Accordingly, I am of the view that the release of the personal information of relatively
junior staff at the ACCC and Qantas and the personal account numbers assigned by
Qantas to Commissioners (and as contained in the documents the subject of your
request) would be contrary to the public interest. Therefore, that personal information
is exempt from disclosure under the FOI Act.
Section 22 of the FOI Act: documents edited to delete exempt and irrelevant
information
For the reasons set out above, the documents the subject of your request contain
information that is exempt from release under section 47F and 47C of the FOI Act.
Section 22 of the FOI Act provides that the ACCC may prepare an edited copy of a
document, deleting exempt material where it is reasonably practicable to do so, and
provide access to an edited copy where it is not apparent that the applicant would
decline access to an edited copy.
In this instance (except for document 13), I am satisfied that it is reasonably
practicable to prepare an edited copy of the documents the subject of your request
with deletions that would remove the exempt material and allow access to the
remainder of the documents. Further, it is not apparent to me that you would decline
access to edited copies of the documents you’ve requested.
Section 22 of the FOI Act also provides that the ACCC may prepare an edited copy
of a document, deleting material that would reasonably be regarded as irrelevant to
the request where it is reasonably practicable to do so, and provide access to an
edited copy where it is not apparent that the applicant would decline access to an
edited copy.
I am of the view that the documents the subject of your request contain material that
may reasonably be regarded as outside the scope of, and therefore irrelevant to,
your request.
In this instance (except for document 13), I am of the view that it is reasonably
practicable to prepare edited copies of the relevant documents with deletions made
to remove irrelevant material while allowing access to the remainder of the
document. I have therefore deleted that irrelevant material under section 22 of the
FOI Act. And as above, it is not apparent to me that you would decline access to
edited copies of the documents you’ve requested.
Document 13
As per section s 31B of the FOI Act, the whole document is exempt if one of the
conditional exemptions in Division 3 of Part IV applies and access to the document
would, on balance, be contrary to the public interest. However, s 22 of the FOI Act
provides for an FOI applicant to be given access to an edited copy of a partly exempt
document, modified by the deletion of the exempt matter where it is not apparent that
the applicant would decline access to an edited copy.
I have considered preparing an edited version of the document. However, after
redacting irrelevant (out of scope) material and exempt material under s 47C
(deliberative processes exemption), the document would be entirely redacted, and I
am of the view of little value to the applicant. Therefore, I refuse access to the
document as the applicant is likely to decline access to an edited copy.
Charges
As stated in our letter to you dated 12 May 2025, we decided to waive the charges
associated with processing your FOI request. We waived the charges on the basis of
public interest grounds.
There are no further charges payable in relation to the
processing of your FOI request.
Access to documents
Enclosed are copies of the 2 documents which were 'Granted' and the of the 16
documents which were 'Part granted', as per the Schedule.
Disclosure log
In accordance with s.11C of the Act, I have decided to publish the documents
released on the ACCC’s Disclosure Log. This wil occur within ten business days of
the documents being released to you.
Yours sincerely
Rizpah Jarvis
Principal Lawyer
Specialist Advice and Services Division
Sent by email 23/06/2025
Understanding the Schedule at Attachment A
In relation to the Schedule, please note:
•
Column 1 of the Schedule refers to each document by a document number
created for the purpose of processing this request;
•
Column 2 of the Schedule gives, where applicable, the name and
organisation of the author of the document;
•
Column 3 of the Schedule gives, where applicable, the name and
organisation of the addressee of the document;
•
Column 4 of the Schedule shows the date appearing on the document;
•
Columns 5 and
6 of the Schedule briefly describes the document or, where
applicable, each part of a composite document;
•
Column 7 of the Schedule gives the number of pages of the document or,
where applicable, each part of a composite document;
•
Column 8 of the Schedule shows my decision on whether, and what form,
access has been granted to the document, where applicable;
•
Column 9 of the Schedule sets out my findings on material questions of fact
and the reasons for my decision. The subsection or paragraph referred to is
the subsection or paragraph of the Act relied upon in support of each claim of
exemption from disclosure. I have outlined my reasons for decision in my
letter.
Attachment A
Schedule of documents
Doc Author
Addressee Date
Doc Type Description
No of
Access
Findings, Reasons and Brief
No
Pages
Description
1
ACCC
01/01/2020
Form
Gifts, Hospitality and Benefits.
4
Part granted
s 22 - Deletion of irrelevant material
2
ACCC
01/03/2022
Form
Gifts, Hospitality and Benefits
4
Part granted
s 22 - Deletion of irrelevant material
3
ACCC
01/07/2022
Form
Gifts, Hospitality and Benefits
4
Part granted
s 22 - Deletion of irrelevant material
4
ACCC
01/09/2022
Form
Gifts, Hospitality and Benefits
4
Part granted
s 22 - Deletion of irrelevant material
5
ACCC
01/06/2024
Regulations Code of Conduct for Commission
19
Granted
Members. The whole document is not
relevant; however, the document has not
been redacted to remove irrelevant
material as the document is publicly
available on the ACCC website.
6
ACCC
01/07/2024
Policy
Gifts and hospitality internal policy. The 11
Granted
whole document is not relevant;
however, the document has not been
redacted to remove irrelevant material as
the document is publicly available on the
ACCC website.
7
ACCC
01/09/2024
Form
Gifts, Hospitality and Benefits
4
Part granted
s 22 - Deletion of irrelevant material
8
ACCC
01/10/2024
Table(s)
ACCC Commissioners Gifts, Hospitality 6
Part granted
s 22 - Deletion of irrelevant material
and Benefits Register
9
ACCC
ACCC
15/11/2024
Email
Chairman's Lounge membership
3
Part granted
s 22 - Deletion of exempt material
s 22 - Deletion of irrelevant material
s 47F - Personal privacy
10
ACCC
ACCC
19/11/2024
Email
Chairman's Lounge Membership
6
Part granted
s 22 - Deletion of exempt material
s 22 - Deletion of irrelevant material
s 47F - Personal privacy
11
ACCC
Qantas
19/11/2024
Email
Chairman's Lounge membership
2
Part granted
s 22 - Deletion of exempt material
s 47F - Personal privacy
12
ACCC
Qantas
19/11/2024
Email
Chairman's Lounge Membership
2
Part granted
s 22 - Deletion of exempt material
s 47F - Personal privacy
13
ACCC
ACCC
21/11/2024
Email
RE: Chairman's Lounge Membership
3
Refused
s 22 - Deletion of exempt material
s 22 - Deletion of irrelevant material
s 47C - Deliberative processes of the
Commission
14
ACCC
ACCC
25/11/2024
Email
RE: Chairmans Lounge membership
6
Part granted
(attached to QFF membership number)
s 22 - Deletion of exempt material
s 22 - Deletion of irrelevant material
s 47F - Personal privacy
15
ACCC
Qantas
13/12/2024
Email
EO - Correspondence - Qantas Airways 2
Part granted
Limited
s 22 - Deletion of exempt material
s 47F - Personal privacy
16
ACCC
18/12/2024
Staff Paper
2
Part granted
s 22 - Deletion of exempt material
s 22 - Deletion of irrelevant material
s 47F - Personal privacy
17
ACCC
ACCC
02/01/2025
Email
RE: Summary of disclosure discussion
6
Part granted
s 22 - Deletion of irrelevant material
18
ACCC
23/01/2025
Form
Gifts, Hospitality and Benefits
4
Part granted
s 22 - Deletion of irrelevant material
19
ACCC
23/01/2025
Form
Gifts, Hospitality and Benefits
4
Part granted
s 22 - Deletion of irrelevant material
Attachment B
Information on rights of review
ACCC Internal Review
Under s.54 of the FOI Act, you can ask for an internal review of this decision. If you request
an internal review request, another officer of the ACCC wil review your request and make a
new decision.
Timeframe for requesting internal review
You have 30 days from the receipt of this decision to request an internal review.
You may seek an extension to this timeframe with our agreement.
Is there a charge?
There is no charge payable for requesting an internal review.
Requesting an internal review
Your request for internal review must be in writing and indicate that you are seeking an
internal review. You wil need explain why this decision should be changed.
Please send your internal review request to the FOI Team by:
Email: xxx@xxxx.xxx.xx
When wil the decision be made?
We have 30 days from the receipt of your internal review request to make a decision.
If we do not make a decision within 30 days or such further period as the IC allows, the
original decision is considered affirmed. In such circumstances, you can seek review of our
deemed decision by the Information Commissioner.
Review by the Information Commissioner
You can ask for a review of this decision by the Australian Information Commissioner (IC).
The Office of the Australian Information Commissioner (OAIC) encourages applicants to
seek internal review first, however you are not required to go through our internal review
process before seeking review by the IC. If you do choose to seek an internal review, you
can stil seek IC review of the internal review decision if we refuse access to your request.
Timeframe for requesting IC review
You have 60 days from the receipt of an access refusal decision to request IC review.
You may seek an extension to this timeframe from the OAIC.
Is there a charge?
There is no charge payable for requesting an IC review.
Requesting IC review
Your request for IC review must be in writing and include:
• your name and contact details
• a copy of the ACCC’s decision that you disagree with (if you’ve received one)
• the reason(s) why you disagree with the decision
You can lodge your request for IC review online:
Online: https:/ www.oaic.gov.au/contact-us#reviews
Complaint to the Information Commissioner
You can request the Information Commissioner to investigate action taken by the ACCC in
relation to this FOI request. The Information Commissioner wil consider your complaint and,
if appropriate, conduct an investigation. Any investigation wil be completely independent.
Is there a charge?
There is no charge payable for making a complaint to the IC.
Lodging an IC complaint
You must lodge your complaint in writing and give a clear and brief description of each issue
you’re complaining about and what outcome you’d like.
You can lodge a complaint online:
Online: https:/ www.oaic.gov.au/contact-us#complaints
Document Outline
