OFFICIAL
Attachment C: Statement of Reasons
FOI/2425/062
1. This attachment, together with the
Decision Notice and
Attachment B – Schedule of Documents, provides
the reasons I have decided not to disclose certain material to you in response to your request for documents
under the
Freedom of Information Act 1982 (FOI Act).
2.
Attachment B – Schedule of Documents provides a table with the description of the document, the decision
with respect to the document and a reference to the relevant provision that has been relied upon to exempt
the document from release. My considerations under the relevant provisions column are discussed below.
Document searches
3. I have consulted with the relevant line areas and reviewed the record of the various search and retrieval
efforts. I am satisfied that a reasonable search has been undertaken in response to your request.
Creation of a document
4. The second part of your request seeks access to compliance reports submitted by prime contractors to NIAA
detailing actual Indigenous participation levels. The Indigenous Procurement Policy sets Indigenous
participation targets (mandatory minimum requirements) for high value Government contracts valued at $7.5
million or more.
5. Suppliers to the Commonwealth report their performance against mandatory minimum requirements
quarterly through the Indigenous Procurement Policy Reporting Solution quarterly.
6. The NIAA created a document outlining the entities reports, containing the following information:
• total full time equivalent workforce
• total full time equivalent Indigenous workforce
• total Australian supply chain spend for quarter ($AUD), and
• supply chain spend to Indigenous Businesses for quarter ($AUD).
7. If a contract does not meet the threshold of a starting value of $7.5 million or more, the entity will not be
subject to mandatory minimum requirements. Accordingly, data regarding compliance for 3 entities listed in
your FOI request does not exist and has not been included in the document.
OFFICIAL
NIAA | Freedom of Information
OFFICIAL
OFFICIAL
Nil documents
8. Section 24A(1) of the FOI Act provides that where all reasonable steps have been taken to find documents,
and the agency is satisfied that documents cannot be found or do not exist, then the agency may refuse a
request for access to the documents.
9. I have decided that certain documents you requested access to could not be found (section 24A(1)(b)(i) of the
FOI Act) or do not exist (section 24A(1)(b)(ii) of the FOI Act). Information about the searches we carried out to
locate the documents and an explanation why documents do not exist is outlined below.
Information about why documents do not exist
10. The second part of your request sought access to compliance reports submitted by prime contractors to NIAA
detailing actual Indigenous participation levels.
11. As mentioned at paragraph 7 above, if a contract does not meet the threshold of a starting value of $7.5
million or more, the entity will not be subject to mandatory minimum requirements. Accordingly, data
regarding compliance for 3 entities listed in your FOI request does not exist as these entities are not subject
to the Indigenous Procurement Policy.
12. Accordingly, I have decided that documents addressing part of the second part of your request does not exist
(section 24A(1)(b)(ii) of the FOI Act).
Information about searches
13. The NIAA searched for documents in the locations set out below:
• NIAA case management systems
• NIAA records management systems
• NIAA email systems
14. Preliminary searches identified five contracts for the entities mentioned in your request. Searches then
examined if the entities for which contracts were identified had submitted reports in relation to their
Indigenous participation levels.
15. I am satisfied that the searches undertaken by the NIAA were reasonable, having regard to
• the subject matter of the documents, being documents relating to the reported Indigenous participation
levels for the entities mentioned in your request
• the current and past file management systems for reports submitted regarding Indigenous participation
levels
• where documents of the type sought would ordinarily be held
• the record management systems in place
NIAA | Freedom of Information |
Attachment C: Statement of Reasons
2
OFFICIAL
OFFICIAL
• the individuals within the NIAA who may be able to assist with the location of documents, specifically,
subject matter experts within the Indigenous Procurement Policy team in the Business and Economic
Policy Branch of the NIAA, and
• the age of the documents.
16. The first part of your request sought access to Indigenous Participation Plans submitted by prime contractors
to NIAA. Indigenous Participation Plans are not submitted by tenderers or suppliers to the NIAA, and are only
submitted to the relevant agency who manages the contract. NIAA does not receive a copy of the plans from
the relevant agency. In the present matter, the relevant agency is the Department of Defence. The NIAA
undertook searches to ascertain if a copy of the Indigenous Participation Plans had been provided to the
NIAA, and copies of these plans have not been provided to the NIAA.
17. The third part of your request sought access to communication between NIAA and AGSVA regarding changes
to Indigenous participation reporting for the identified contract. Searches were undertaken of relevant case
management and email systems, and no documents were identified.
18. The fourth part of your request sought access to directives, memos or policy guidance issued by NIAA to
prime contractors or AGSVA regarding Indigenous participation obligations for the identified contract. No
specific directives, memos or guidance was issued by the NIAA for this contract.
19. Having regard to the searches conducted, as well as the information set out above, I am satisfied that all
reasonable steps have been taken to locate documents within the scope of parts one, three and four of your
FOI request, and that no documents have been identified. Accordingly, I have decided to refuse these parts of
your request under subsection 24A(1) of the FOI Act.
Information to assist you
20. As noted above, Indigenous Participation Plans are not submitted or provided to the NIAA, and are only
submitted to the relevant government agency. In the present matter, it is open to you to submit a FOI request
to the Department of Defence seeking access to Indigenous Participation Plans relevant to the identified
contract. Information on how to submit a request to the Department of Defence is available on
their website.
21. While no directives, memos or policy guidance was issued by NIAA in relation to changes to Indigenous
participation reporting to the identified contract, the NIAA has published the Indigenous Procurement Policy,
guides, factsheets and details of Indigenous Procurement Policy changes on its website. Further details are
available on th
e NIAA’s website.
22. The created document is correct as at 7 March 2025 (the date of your FOI request). While the document
records that some suppliers had not submitted reports when the document was created, this does not mean
a supplier is non-compliant as the date a Quarterly Performance Report is due to be submitted may not have
passed.
23. During the course of processing your request, the NIAA consulted with affected third parties regarding the
release of information pertaining to their organisation. One third party, while having no concerns with the
release of information in the document, confirms that reports have been submitted since 7 March 2025, and
accordingly, the document is not accurate as at the date of this decision.
NIAA | Freedom of Information |
Attachment C: Statement of Reasons
3
OFFICIAL
OFFICIAL
Business information (section 47G)
24. Section 47G conditionally exempts documents where release of the document would disclose information
concerning a person in respect of their business or professional affairs, or concerning the business,
commercial or financial affairs of an organisation or undertaking (business information), where the disclosure
of the information:
• would, or could reasonably be expected to, unreasonably affect the person adversely in respect of his or
her lawful business or professional affairs or that organisation or undertaking in respect of its lawful
business, commercial or financial affairs, or
• could reasonably be expected to prejudice the future supply of information to the Commonwealth or an
agency for the purpose of the administration of a law of the Commonwealth or of a Territory or the
administration of matters administered by an agency.
25. Paragraph 6.191 of the FOI Guidelines provides that the term ‘business affairs’ has been interpreted to mean
‘the totality of the money-making affairs of an organisation or undertaking as distinct from its private or
internal affairs’.
26. I am satisfied that the documents contain information concerning a third party and their business affairs,
including matters relating to their total full time equivalent workforce and their total Australian supply chain
spend, which is material relating to the internal affairs of the third party.
27. In this case, the Agency has obtained and used the business information concerned in the course of the NIAA
administering the Australian Government’s Indigenous Procurement Policy. This information is not publicly
available, and there is no expectation that the quarterly reporting would be made publicly available and
published by the NIAA.
28. The third party asserted that disclosure of their total organisation workforce would disclose sensitive
information about the size and capability of the business, and disclosure of Australian supply chain spend
would otherwise outline sensitive information on the financial aspects of the business.
29. The third party confirmed this information is not publicly available. I am satisfied disclosure of this
information would reveal information about the size and capability of the business, reveal information about
internal structures and scaling of the entities business model, disclosure of which would otherwise impact
their market perception as it would provide details about their potential efficiency or prompt negative
assessments about their strategic capabilities. This, in turn, would disclose commercial information of the
third party to their competitors, which would harm their business.
30. When considering whether disclosure of this information would unreasonably affect the entity in respect of
their lawful business, I consider that ‘reputation is an invaluable commodity’. Disclosure of business
information may invite narratives about capabilities, which in turn gives rise to adverse commercial effects.
31. After consultation with the affected third party, I am satisfied that release of this material could
unreasonably and adversely affect the capacity of the third party to conduct their affairs freely.
32. For these reasons, I am satisfied that the material is conditionally exempt under section 47G(1)(a) of the FOI
Act.
33. As I have found that the relevant material is conditionally exempt, I am required to consider whether it would
be contrary to the public interest to grant access to the conditionally exempt material at this time.
NIAA | Freedom of Information |
Attachment C: Statement of Reasons
4
OFFICIAL
OFFICIAL
Public interest
34. Section 11A(5) of the FOI Act provides that, if a document is conditionally 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’.
35. Paragraph 6.27 of the FOI Guidelines explains:
“To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude
that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of
withholding the information. The decision maker must analyse, in each case, where on balance the public
interest lies based on the particular facts of the matter at the time the decision is made.”
36. In making my decision, I have considered the factors favouring access set out in section 11B(3) of the FOI Act.
37. I have also had regard to the FOI Guidelines at paragraphs 6.231 and 6.233, which include a non-exhaustive
list of public interest factors favouring disclosure and public interest factors that weigh against disclosure.
38. My consideration of the public interest test regarding the application of section 47G of the FOI Act follows:
Factors in favour of disclosure
39. Of the factors favouring disclosure, I consider the release of the conditionally exempt material would:
• inform debate on a matter of public importance, being promoting the rate of Indigenous employment or
supplier use
• would provide transparency and oversight of Government expenditure, and
• ensure Government suppliers are meeting mandatory minimum requirements of Indigenous employment
or supplier use.
40. Notwithstanding the above, I also consider the public interest in disclosure has been met to a significant
extent as given the information released to you, the public interest in transparency has been satisfied by
disclosure of the Indigenous employment and supplier use of the entity.
41. The release of this information satisfies the public interest in relation to promotion of Indigenous
employment and enterprises, as well as the aims of the Indigenous Procurement Policy. Given the release of
these numbers, I am not satisfied that disclosure of the other information would provide further clarity on
overall Indigenous employment or supplier use by this entity.
42. Accordingly, while I consider disclosure would promote the objects of the FOI Act, I consider this is limited in
the present context given the information released.
Factors against disclosure
43. Of the factors against disclosure, I consider the release of the conditionally exempt material:
• could reasonably be expected to prejudice the business activities of the third party, including by
threatening the preservation of the profitability and ongoing viability of the third party, and
NIAA | Freedom of Information |
Attachment C: Statement of Reasons
5
OFFICIAL
OFFICIAL
• could reasonably be expected to prejudice the Australian Government’s ability to obtain contracted
services in the future, if future providers were to feel that the Government would disclose information
relating to their internal business affairs without their consent.
44. Further, I do not consider that disclosure of the business information in a situation where the figures relating
to Indigenous employment or supplier use has been disclosed, is something that is of serious concern or
benefit to the public. This is not a situation where the disclosure of the business information would raise, or
answer, critical questions about the percentage of Indigenous employment or supplier use.
45. On balance, I have decided that the factors against disclosure outweigh those favouring disclosure and that
disclosure of the conditionally exempt material would be contrary to the public interest.
Publication (section 11C)
46. Where an applicant is provided access to a document, section 11C of the FOI Act requires the NIAA to publish
the document to members of the general public within ten (10) business days of providing the applicant with
access to the document.
47. Documents are published on NIAA Disclosure Log
at https://www.niaa.gov.au/foi/agency-foi-disclosure-logs.
NIAA | Freedom of Information |
Attachment C: Statement of Reasons
6
OFFICIAL
