4 July 2025
Ben Fairless
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Fairless,
Freedom of Information – Notice of decision
FOI Reference number: 24/25 – 76
I refer to your correspondence to the Fair Work Commission (
Commission) dated 4 June 2025, in which
you requested for documents under the
Freedom of Information Act 1982 (Cth) (
FOI Act).
Decision
I have decided to:
• refuse you access to the document captured by the scope of Point 1 of your request as that
document is conditionally exempt under sections 47C and 47F of the FOI Act and its disclosure
would, on balance, be contrary to the public interest; and
• refuse you access to the documents captured by the scope of Points 2 and 3 of your request as
those documents do not exist as contemplated by section 24A of the FOI Act.
For your information, I am authorised by the President of the Commission to issue decisions in response
to freedom of information (
FOI) requests. There is a statutory time frame of 30 days which applies in
responding to your request, and as previously advised, the due date for a decision in relation to your
request is
Friday 4 July 2025.
The reasons for my decision are explained in further detail in this Decision Letter. However, I will first
recap the request.
Request
On 4 June 2025, you requested:
“1. The audio recording of the case management hearing on 29 May 2025 for the Application for
employee-like minimum standards order (MS2025/2) [
Point 1]
2. A transcript of the hearing at
point 1 [
Point 2]
3. The document provided by the applicant withdrawing their request. [
Point 3]
There is a significant public interest in releasing this information. If at any point the decision maker
is required to determine if something is in the public interest, I would respectfully request the ability
to provide submissions before the decision is made.”
11 Exhibition Street
Email
: xxx@xxx.xxx.xx
Melbourne VIC 3000
GPO Box 1994
Melbourne VIC 3001
(
requested documents)
On 5 June 2025, I wrote to you seeking submissions in relation to your remarks of there being “a
significant public interest” in the disclosure of the requested documents under the FOI Act. Specifically,
I sought an explanation from you as to why the public interest factors in favour of the disclosure of the
requested documents outweighed the public interest factors against the disclosure of the requested
documents.
On 16 June 2025, I received submissions from you, which stated:
“The public interest strongly favours the release of the requested documents under section 11B(3)
of the Freedom of Information Act 1982 (Cth).
Firstly, releasing these documents promotes the objects of the FOI Act (s 3), particularly by
enhancing transparency and accountability of the Fair Work Commission (FWC). This was the first
application specifically impacting rideshare workers under the recently established "employee-like
minimum standards" framework, and there is significant public interest in understanding the
reasons behind its sudden withdrawal. This framework represents a world-first regulatory approach
to gig economy employment, further amplifying the public interest in understanding how the FWC
is handling these novel and globally significant standards. The FOI Guidelines (para 6.19) explicitly
recognise that transparency regarding government decisions and actions is crucial for maintaining
public trust and accountability.
Secondly, disclosure will substantially inform public debate on an issue of considerable public
importance - namely, the rights, protections, and working conditions of rideshare and gig economy
workers across Australia. Given the extensive prior media coverage and active advocacy by groups
such as the Transport Workers’ Union, informed public debate on these regulatory developments is
vital. Section 11B(3)(b) specifically identifies facilitating public debate as a factor favouring
disclosure. Access to these documents ensures discussions are based on direct evidence rather than
speculation.
Thirdly, there is a clear accountability interest in understanding the reasons behind the sudden
withdrawal of this significant application. Transparent decision-making processes within public
bodies are fundamental to public trust. Any privacy or confidentiality concerns can be managed
effectively by limited redaction of sensitive personal details under s 22 of the FOI Act, without
undermining the documents' substantive content.”
My analysis of your submission is included below in my reasons for the decision.
Reasons for decision
Materials considered
In reaching my decision, I considered the following:
• your request and submissions;
• the FOI Act;
• guidelines issued by the Office of the Australian Information Commissioner as prescribed under
section 93A of the FOI Act (
FOI Guidelines);
• the Commission’s functions as an agency; and
• the existence and contents of documents captured by the scope of your request.
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General principles
Section 11 of the FOI Act bestows upon you a legally enforceable right to access documents held by a
Commonwealth agency such as the Commission. I further note that if a decision-maker reaches a
conclusion that part of, or the entirety of a document falls within an exemption under the FOI Act, then
part of, or the entirety of that document, does not have to be disclo
sed.1 There is nothing in the FOI Act which limits what an individual can do with any document which is
released in response to a FOI request and that has been taken into consideration for the purposes of
this request.
A decision to give an individual access to a document under the FOI Act is generally done so on the
premise that the release of that document is disclosed to a wider audien
ce.2 Here, you have made your
FOI request via Right to Know, a website which describes itself as:
“[a]
site to help anyone submit a Freedom of Information request. Right to Know also publishes and
archives requests and responses, building a massive archive of information.”3
Any document which is disclosed to an FOI applicant who has made a FOI request through Right to
Know can be published onto the Right to Know website and be made publicly available. I have also
taken that into consideration when assessing your request.
I will now turn to my findings.
Findings – Point 1
The sole document captured by Point 1 is an audio recording of a case management hearing conducted
on 29 May 2025, in relation to the Commission matter referenced in your request. For the reasons
detailed below, I have refused you access to that document as it is conditionally exempt under sections
47C and 47F of the FOI Act and that the disclosure of that document would, on balance, be contrary to
the public interest.
Section 47C (deliberative process)
Section 47C of the FOI Act provides:
47C Public interest conditional exemptions—deliberative processes
General rule
(1) 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; or
(b) a Minister; or
(c) the Government of the Commonwealth.
Exceptions
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
1
Freedom of Information Act 1982 (Cth), s.31B.
2 [3.36] FOI Guidelines.
3 ‘Right to Know’,
Right to know (web page)
<https://www.righttoknow.org.au/>.
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Note: An agency must publish its operational information (see section 8).
A deliberative matter is content that is in the nature of an opinion, advice or recommendation that has
been obtained, prepared or recorded or a consultation or deliberation which has taken place in the
course of a deliberative process of an agency
.4 A deliberative process may include the recording or
exchange of opinions, advice, recommendations, a collection of facts or opinions, as well as interim
decisions or deliberation
s.5 Additionally, the deliberative matter in question must have been obtained,
prepared or recorded in the course of, or for the purposes of, the deliberative process involved in the
functions of an agency
.6 As previously mentioned, the audio recording is of a case management hearing conducted on 29 May
2025. The purpose of the case management hearing was to ascertain the opinions and
recommendations from the applicant as well as other interested parties in relation to how the
application should be dealt with by the Commission, and such opinions and recommendations were
exchanged. The case management hearing was never intended to determine the merits of the
application. It is not uncontroversial that the audio recording was created as part of the Commission’s
functions as an agency, being to deal with applications for minimum standards for regulated work
ers.7
It is also not uncontroversial that the audio recording does not comprise operational information since
it was a case management procedure for the handling of an individual matter, being MS2025/2
.8
Finally, although the audio recording contains some purely factual material, that material is intertwined
with other contents of the document which is deliberative in nature and such documents are exempt
on that basi
s.9
Based on the above considerations, the audio recording is conditionally exempt under section 47C of
the FOI Act.
Section 47F (personal privacy)
Section 47F of the FOI Act states:
47F Public interest conditional exemptions—personal privacy
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure
of personal information about any person (including a deceased person).
…
The FOI Act states that the meaning of the term ‘personal information’ is the same as that provided in
the
Privacy Act 1988 (Cth) (
Privacy Act).10 Relevantly, the meaning of the term ‘personal information’,
as defined in section 6 of the Privacy Act, is:
…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.
4 [6.47] FOI Guidelines.
5 [6.57] FOI Guidelines.
6
Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2020] AATA 4964, at
[72].
7
Fair Work Act 2009 (Cth), s.576(1)(ma).
8 [13.123] FOI Guidelines.
9 [6.71] FOI Guidelines.
10
Freedom of Information Act 1982 (Cth), s.4.
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The personal information in question needs to be in relation to an individual (i.e. there must be a
connection between the information and the person
).11 This is a question of fact, and it depends on the
context and circumstances of the information in question
.12
Turning to how section 47F is applied, the objects of the FOI Act to promote transparency in
government processes and activities must be balanced with the purpose of this conditional exemption,
which is to protect the privacy and personal information of individuals
.13
Additionally, when it comes to whether the disclosure of an individual’s personal information is
unreasonable, section 47F(2) of the FOI Act outlines the following considerations:
• 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 matters dealt with in the document;
• the availability of the information from publicly accessible sources;
• any other matters that the agency or Minister considers relevant.
So too, do the following considerations with respect to the ‘other matters’ as referenced in section
47F(2)(d) of the FOI Act:
• the nature, age and current relevance of the information;
• whether the information is well known or available from other public sources;
• 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;
• whether disclosure of the information might advance the public interest in government
transparency and integrity; and
• the fact that the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI A
ct.14
The audio recording contains voiceprints, names, and opinions of individuals and that information in
itself constitutes as personal information. The personal information belonging to the relevant
individuals is also intertwined with one another and that makes it ‘joint personal information
’.15
The contents of the audio recording (i.e. what was precisely said in the case management hearing) is
not well-known and is not publicly available. There is also no evidence before me which indicates that
you had participated in the case management hearing nor had any involvement in the relevant
Commission matter.
Furthermore, the Commission matter to which the audio recording concerns is no longer before the
Commission since it was discontinued in May 2025. I am also cognizant of the fact that the audio
recording, if disclosed under the FOI Act, will potentially be disseminated on the Right to Know website
and the contents of the audio recording may be divulged in a manner which is outside of its original
context and may potentially harm the personal and professional interests of the individuals who feature
in the audio recording.
The remaining ‘other matters’, which I have listed above are neutral considerations.
11
Privacy Commissioner v Telstra Corporation Limited (2017) FCR 24, 37.
12 [6.131] FOI Guidelines.
13
‘BA’ and Merit Protection Commissioner [2014] AICmr 9 at [64].
14
‘FG and National Archives of Australia [2015] AICmr 26, at [47].
15 [6.143] FOI Guidelines.
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In light of the above assessment, the disclosure of the audio recording would amount to an
unreasonable disclosure of personal information. Furthermore, it is not possible to separate the
personal information contained in the audio recording
.16 It is for those reasons that the audio
recording is conditionally exempt under section 47F.
Section 11A(5) (public interest factors)
Both sections 47C and 47F are conditional exemptions and therefore the public interest factors, as
referenced in section 11A(5) of the FOI Act must be consid
ered.17 Relevantly, section 11A(5) states:
(5) 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.
In brief, access to a conditionally exempt document must be provided unless the degree of harm is of a
level which causes some harm or damage to the public interest and outweighs the factors in favour of
disclosur
e.18 As outlined in [6.224] of the FOI Guidelines, the public interest test is considered to be:
• something that is of serious concern or benefit to the public, not merely of individual interest;
• not something of interest to the public, but in the interest of the public;
• not a static concept, where it lies in a particular matter will often depend on a balancing of
interests;
• necessarily broad and non-specific; and
• related to matters of common concern or relevance to all members of the public, or substantial
section of the of the public.
Additionally, section 11B(3) of the FOI Act provides a list of factors which favour access to a document
in the public interest, namely:
(3)
Factors favouring access to the document in the public interest include whether access to the
document would do any of the following:
(a)
promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b)
inform debate on a matter of public importance;
(c)
promote effective oversight of public expenditure;
(d)
allow a person to access his or her own personal information.
Finally, I cannot consider the irrelevant factors listed in section 11B(4) of the FOI Act, being:
(a) access to the document could result in embarrassment to the Commonwealth Government, or cause
a loss of confidence in the Commonwealth Government;
(b) access to the document could result in any person misinterpreting or misunderstanding the
document;
(c) the author of the document was (or is) of high seniority in the agency to which the request for access
to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
16 [6.145] FOI Guidelines.
17
Freedom of Information Act 1982 (Cth), s.31A.
18
Jonathan Sequeira and Australian Broadcasting Corporation (No. 3) (Freedom of Information) [2023] AICmr 30
at [90].
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I agree with the points you made in your submissions about the disclosure of the audio recording,
which form the requested documents, being consistent with the promotion of the objects of the FOI
Act. However, this point alone does not mean that the disclosure of the audio recording would not, on
balance, be contrary to the public interest.
In relation to your submissions regarding the disclosure of the audio recording informing public debate,
I disagree with your argument that the audio recording’s disclosure under the FOI Act will “substantially
inform public debate”. As I have already detailed in this letter, the audio recording is of a case
management hearing, and its purpose to ascertain the opinions and recommendations from the
applicant as well as other interested parties in relation to how the application should be dealt with by
the Commission. It is also not uncommon for case management hearings to be used for the
management of the procedural and administrative affairs pertaining to the relevant matter (for
example the scheduling of dates for a determinative hearing and organising the due dates for
submissions from interested parties). The audio recording was not of a contested hearing and to
determine the merits of the application, nor did the presiding Commission Member issue a decision
during the case management hearing. Accordingly, no new information of substance as to the issue of
protections and rights of gig-economy workers would be made available if the audio recording were to
be disclosed. Your point of there being a “clear accountability interest” also must fail on the basis that
it was the applicant who, on their own initiative, withdrew their application, and the matter was not
finalised following a Commission decision.
In addition to my response to your submissions, the disclosure of the audio recording:
• would, or at the very least could, reasonably be expected to undermine the right of privacy
belonging to the affected individuals, particularly where their personal information (including
voiceprints) can be made available on a forum such as Right to Know;
• could reasonably be expected to adversely affect the professional interests of some of the
affected individuals who are referenced in the audio recording; and
• could reasonably be expected to serve no public purpose given that the Commission matter to
which your FOI request pertains to was discontinued in May 2025, the audio recording was of a
case management hearing and not a determinative hearing, and the relevant Commission
matter is now closed.
I have not considered the irrelevant factors listed in section 11B(4) of the FOI Act.
Having considered the above points, including those raised in your submissions, the disclosure of the
audio recording would, on balance, be contrary to the public interest.
Findings – Points 2 and 3
The documents captured by the scope of Points 2 and 3 of your request do not exist and are therefore
exempt under section 24A of the FOI Act. An explanation for this finding is detailed below.
Section 24A (documents do not exist)
Section 24A of the FOI Act states:
24A Requests may be refused if documents cannot be found, do not exist or have not been received
Document lost or non-existent
(1) An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b)
the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii)
does not exist.
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…
(
emphasis added)
An FOI request only covers documents which are in existence at the time the request itself has been
made. Conversely, documents which come into an agency’s possession after an FOI request has been
made is not captured by the scope of the reque
st.19
Additionally, paragraph [3.85] of the FOI Guidelines provides that an agency may refuse a request if it
has taken ‘all reasonable steps’ to locate a document which is the subject of a FOI request and is
satisfied that that document does not exist. The FOI Act does not provide a meaning to the term ‘all
reasonable steps’. Nonetheless, the meaning of the word ‘reasonable’ in the context of section 24A of
the FOI Act has been construed as not going beyond the limit assigned by reason, not extravagant or
excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable
to the circumstances or purpo
se.20
Steps which are comprehensive and are directed to locating the documents in those places are relevant
in ascertaining whether ‘all reasonable steps’ have been tak
en.21 What constitutes a reasonable search
will depend on the circumstances of the request itself and will be influenced by the normal business
practices of the relevant ag
ency.22 Additionally, and depending on the circumstances of the request, a
search of backup systems or archives in locating the requested documents may be necessary
.23
In relation to documents captured by the scope of Point 2 of your request, being a transcript of the case
management hearing of 29 May 2025, after liaising with the relevant Commission Member’s Chambers
and from performing a search of the Commission’s internal case management system, no such
document exists as contemplated by the FOI Act. Additionally, the document captured by the scope of
Point 3 of your request, being a “document provided by the applicant” also does not exist as
contemplated by the FOI Act. The scope of Point 3 of your request concerns a document supplied by
the applicant to the Commission, which confirms that they withdrew their application. In MS2025/2,
the applicant withdrew the application during the case management hearing and did so verbally, which
can be done in accordance with the
Fair Work Commission Rules 2024 (Cth).24 Rights of review
If you disagree with my decision, you have the right to apply for an internal review of my decision by
the Commission. Any request for internal review must be made to the Commission within 30 days of
being notified of my decision. The internal review will be conducted by an officer other than myself (as
the original decision-maker), and the Commission must make a review decision within 30 days.
Applications for internal review can be sent by email to
xxx@xxx.xxx.xx or by mail to GPO Box 1994
Melbourne VIC 3001, marked to my attention.
Review by the Information Commissioner
You can apply to the Information Commissioner for review of my decision. Further information in
relation to this can be found on the
Information Commissioner website.
19
Lever and Australian Nuclear Science and Technology Organisation (Freedom of Information) [2022] AATA 2259
at [28];
Radar Investments Pty Ltd and Ors and Health Insurance Commission [2004] AATA 166, at [41] – [42].
20
De Tarle and Australian Securities and Investments Commission (Freedom of information) [2015] AATA 770,
applying
Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138.
21
Bienstein and Attorney-General (Commonwealth of Australia) [2008] AATA 490, at [48].
22
Chu v Telstra Corporation Limited [2005] FCA 1730, at [35].
23
Trevor Kingsley Ferdinands and Department of Defence (Freedom of Information) [2024] AICmr 182, at [21].
24
Fair Work Commission Rules 2024 (Cth) r 10(2)(b).
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How to make a complaint
You can complain to the Information Commissioner about action taken by the Commission in relation to
your FOI request. Enquires to the Information Commissioner can be made by telephone (1300 363 992)
or online vi
a an Enquiry Form. This concludes my Decision Letter.
Yours sincerely,
Nick Kierce
FOI Delegate
Legal Services
Fair Work Commission
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