Notice of Decision 2025 2082.pdf

10 December 2025

FOI ref: 2025/2082
Rose
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Rose,

Notice of Decision for Freedom of Information Request no. 2025/2082

The purpose of this letter is to give you a decision about access to documents that you have
requested under the Freedom of Information Act 1982 (FOI Act).


Summary
I am an officer authorised under section 23(1) of the FOI Act to make decisions in relation to
FOI requests.

You lodged an FOI request on 6 October 2025 for access to:

“I request documents recording or relating to any action taken pursuant to Part 9, Part
10 or Part 11 of the Administrative Review Tribunal
Performance Standard for Non-Judicial Members.

I agree for the following categories of information to be excluded:
-          duplicates of documents that are in scope;
-          contact details for APS employees, other than members of the Senior
Executive Service.”

On 17 October 2025, the Tribunal commenced a request consultation process under section
24AB of the FOI Act on the basis that the work involved in processing your request would
substantially and unreasonably divert the resources of the Tribunal from its other operations.
On 22 October 2025, in response to this consultation, you agreed to revise the scope of your
request to:

“1) All documents recording or relating to any action taken by the President pursuant
to Part 11 of the Administrative Review Tribunal Performance Standard for Non-
Judicial Members.

2) For the avoidance of doubt, this request specifically includes (but is not limited to)
any correspondence sent by the President under paragraph 11.4 of that Standard.”

On 30 October 2025 we wrote to you advising that the practical refusal reason was removed
and that we would process the revised request. On the same date we also sought an
extension of time under s 15AA due to the nature and volume of documents found within the

scope of your request. On 31 October 2025, you agreed to this extension of time under
section 15AA of the FOI Act. The decision due date was revised to 10 December 2025
accordingly.

Scope of your request

I have interpreted your FOI request to be for all documents relating to any action taken by the
President for Part 11 of the Administrative Review Tribunal Performance Standard for Non-
judicial members (“the Standard”) and includes any correspondence sent by the President
under paragraph 11.4 of the Standard.

Search for documents
I have liaised with the Office of the General Counsel and the President’s Chambers as the
relevant areas that would ordinarily hold these documents.
As a result, I have identified 44 documents which fall within the scope of your request.
Decision
I have decided to refuse access to the documents.
The attached Schedule of Documents provides a summary of my decision in relation to each
document.
In making my decision, I have taken the following into account:
•  the content of the documents that fall within the scope of your request;
•  the FOI Act, specifically sections 11A, 11B, 22, 37, 42, 47E(c), 47E(d) and 47F;
•  the guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines).

Section 42 - Legal Professional Privilege

Section 42 of the FOI Act provides that a document is exempt if it would be privileged from
production in legal proceedings on the ground of legal professional privilege.

In deciding whether privilege applies, I have considered the common law elements of legal
professional privilege, including the dominant purpose of the communication, the lawyer-
client relationship, confidentiality and whether privilege has been waived.

The documents listed in the Schedule comprise internal emails and attachments created and
exchanged for the dominant purpose of obtaining legal advice from the Australian
Government Solicitor (AGS). The documents listed in the Schedule comprise both:
•  Internal emails and attachments created and exchanged for the dominant purpose of
obtaining legal advice from AGS; and
•  Correspondence received from AGS, including legal advice and requests for further
information needed to finalise that advice.

The internal communications include draft emails, internal exchanges, and attachments that
were being developed and circulated for the dominant purpose of obtaining legal advice from
AGS. Correspondence received from AGS contains legal advice or questions necessary to
provide that advice. All such communications attract legal professional privilege.

Lawyer-client relationship
I am satisfied that a lawyer client relationship exists for the purposes of legal professional
privilege. The Tribunal, through its officer, was acting as a client in preparing and
coordinating instructions for AGS, which is the Tribunal's external legal adviser. The AGS
communications contain legal advice or requests necessary to provide that advice.

Confidentiality of the communications
The communications were created, received and circulated on a confidential basis within the
Tribunal and between the Tribunal and AGS. Access to the documents was limited to a small
group of staff responsible for preparing or coordinating instructions for legal advice. The
documents are also stored in a secure, access restricted folder within the Tribunal's
information management system. These arrangements demonstrate that the confidentiality of
the communications has been preserved by the Tribunal and AGS. I am satisfied that
privilege has not been waived.

Based on my review of the documents, I am satisfied that:
•  The Tribunal staff were acting in the capacity of the client in preparing material for
AGS;
•  The dominant purpose of all communications and attachments was to obtain legal
advice;
•  The communications were created, received and handled on a confidential basis by
both the Tribunal and AGS; and
•  Confidentiality has been maintained and has not been waived.

For these reasons, I am satisfied that all the documents attract legal professional privilege
and fall within the exemption in section 42 of the FOI Act.

Section 37(1)(a) – Prejudice ongoing investigations

While I have found that the documents are exempt under s 42, I have also considered the
application of s 37(1)(a) and am satisfied that this exemption also applies to all documents.

Section 37(1)(a) of the FOI Act provides that a document is exempt if its disclosure would, or
could reasonably be expected to, prejudice the conduct of an investigation of a breach, or
possible breach, of the law.

According to the FOI Guidelines, for the purposes of the exemption, ‘law’ means a law of the
Commonwealth or of a State or a Territory and encompasses both criminal and civil law.
Section 37 concerns the investigative or compliance activities of an agency and the
enforcement or administration of the law.

I have reviewed the 44 documents and consider the material to be exempt under s 37(1)(a)
of the FOI Act. Part 11 of the Administrative Review Tribunal (ART) Performance Standards
for Non-Judicial Members relates to the President’s powers regarding the conduct of
members and powers to investigate and report a breach of the Standards.

The documents relate to matters that remain subject to ongoing processes relating to a
breach of the Standards under Part 11. This process also involves other Commonwealth
agencies. Disclosure at this stage could reasonably be expected to prejudice those agencies’
ability to carry out relevant statutory functions, including compliance, regulatory, or protective
functions.

The FOI Guidelines explain that s 37(1)(a) applies where disclosure could prejudice the
conduct of inquiries or regulatory functions, including where matters remain unresolved or
ongoing. The FOI Guidelines also note that, the test ‘would or could reasonably be expected’
requires the decision maker to assess the likelihood of the predicted or forecast event, effect
or damage occurring after disclosure of a document.

They go on to explain that the mere risk, possibility or chance of prejudice does not qualify as
a reasonable expectation. There must, based on reasonable grounds, be at least a real,
significant or material possibility of prejudice.

The FOI Act does not define prejudice. The FOI Guidelines instead describe a ‘prejudicial
effect’ as ‘one which would cause a bias or change to the expected results leading to
detrimental or disadvantageous outcomes.

In my view, disclosure at this time could reasonably be expected to prejudice the ability of
those authorities to properly carry out their statutory functions. Releasing this material would
reveal contextual details, internal assessments and information surrounding the conduct
matter that could interfere with the fair and effective consideration of the issues by the
relevant bodies.

In view of the nature of the information and the fact that relevant processes have not
concluded, I am satisfied that release could reasonably be expected to prejudice those
functions. Accordingly, I am satisfied these documents are exempt under s 37(1)(a).

Section 47E(c) – Effective management of personnel

Section 47E(c) provides that a document is conditionally exempt if its disclosure would, or
could reasonably be expected to, have a substantial adverse effect on the management of
personnel by an agency. 
 
Contained within the documents are the full names of Tribunal staff members. Release of this
information could reasonably be expected to identify those persons and create a risk that the
persons could be targeted by unsolicited contact outside of the Tribunal’s official
communication channels. In the interest of promoting workplace health and safety, the
Tribunal has developed a human resources policy to not release full names of staff members
in any external outgoing correspondence.

For this reason, I find that full names of Tribunal staff members are conditionally exempt
under section 47E(c) as disclosure would have a substantial adverse effect on the
management of Tribunal personnel.

Public interest – Section 11A(5) of the FOI Act
 
As the information is conditionally exempt, I have considered whether access to the
information would, on balance, be contrary to the public interest having regard to the FOI
Guidelines. While the objects of the FOI Act include full transparency and accountability, I do
not consider that this object is diminished with the exempting of staff members’ last names.
Staff members are easily identifiable by first names and titles should this be required. I do not
consider that releasing staff members’ last names to the world at large will inform any public
debate nor promote increased effective oversight of public expenditure.

Conversely, a significant factor against disclosure is that disclosure could reasonably be
expected to prejudice staff members’ right to privacy and safety and interfere with a human
resources policy to maintain workplace health and safety by not publicly disclosing the full
names of staff members. On balance, I consider that the workplace health and safety of
Tribunal personnel must be given greater weight. Therefore, I find that disclosure of the
information would be contrary to the public interest under section 11A(5) of the FOI Act.  

Section 47E(d) – Operations of an agency

Section 47E(d) provides that a document is conditionally exempt if its disclosure would, or
could reasonably be expected to, have a substantial adverse effect on the proper and
efficient conduct of the operations of an agency.  

The FOI Guidelines at [6.101] - [6.122] explain that the exemption applies where disclosure
would disrupt established operational processes, undermine cooperation essential to the
performance of statutory functions, or otherwise impair the agency’s ability to conducts its
business efficiently.

Direct telephone numbers and email addresses of Tribunal personnel
Parts of the documents contain direct telephone numbers and personal email addresses of
Tribunal staff and Members which do not appear to have been publicly disclosed. The
Tribunal maintains established public arrangements to ensure that enquiries are received,
triaged and responded to appropriately.

Disclosure of direct contact details could reasonably be expected to divert staff from their
core duties, result in unmanaged or inappropriate approaches, and bypass established
enquiry-handling processes. Owing to the timeframes applicable to certain Tribunal cases,
this could result in hardship to members of the public and have a substantial adverse effect
on the Tribunal’s capacity to efficiently deliver its services if contacts do not reach the officers
responsible for handling them.

For these reasons, I consider the direct contact details of Tribunal personnel to be
conditionally exempt under s 47E(d).

Public interest – Section 11A (5) of the FOI Act

As the information is conditionally exempt, I have considered whether access to the
information would, on balance, be contrary to the public interest having regard to the FOI
Guidelines.

While a relevant public interest factor which favours disclosure is the promotion of the objects
of the FOI Act, through facilitating and promoting public access to information held by
Government, release of the information does not add to the public scrutiny of government
functions.

A relevant public interest factor against disclosure is that use of the information could
critically delay the access of members of the public to the services of the Tribunal.

On balance, I consider that the benefit of efficient handling of public contact by the Tribunal
must be given greater weight. I therefore find that disclosure of the information would be
contrary to the public interest under section 11A(5) of the FOI Act.

Interagency and ministerial correspondence
I also consider the documents to be conditionally exempt under s 47E(d) to the extent they
contain correspondence exchanged between the Tribunal and other Commonwealth bodies,
including the Department of Home Affairs, the Attorney-General’s Department, the Australian
Government Solicitor and Ministerial offices. These communications were made to support
each agency’s statutory responsibilities.

The FOI Guidelines recognise that s 47E(d) may apply where disclosure would impair the
effectiveness of interagency processes or reduce the confidence with which other
organisations engage with an agency.

I find that disclosure of this information could reasonably be expected to adversely affect the
Tribunal’s operations by undermining established interagency information-sharing
arrangements and disrupting cooperative processes that support the performance of the
Tribunal’s statutory functions. The material also reveals aspects of the Tribunal’s interactions
with other agencies and ministerial offices and releasing it would enable identification of the
parties involved and the nature of their engagement.

Given the nature of the communications and their relevance to ongoing operational
processes, I am satisfied that this material is conditionally exempt under s 47E(d).

Public interest – Section 11A(5) of the FOI Act

As the information is conditionally exempt, I have considered whether access would, on
balance, be contrary to the public interest. I acknowledge the public interest in promoting
transparency and access to government-held information. However, I consider these factors
to be outweighed by the public interest in protecting the efficient operation of the Tribunal’s
enquiry-handling processes, maintaining effective interagency cooperation, and preserving
the candour of operational communications with other Commonwealth entities and ministerial
offices.

In these circumstances, I am satisfied that disclosure of the documents would, on balance,
be contrary to the public interest under section 11A(5) of the FOI Act.

Section 47F – Personal Privacy

Section 47F of the FOI Act provides that a document is conditionally exempt
if its disclosure would involve the unreasonable disclosure of personal information about
any person.

I consider parts of the documents to be conditionally exempt under s 47F of the FOI Act. The
documents contain personal information about identifiable individuals, including names,
contact details, material relating to their conduct that is specific to those individuals and is not
publicly known. Some of the material also relates to the circumstances and internal handling
processes of the matter in which those individuals were involved. In addition, some of the
documents contain the personal information of current and former review applicants,
including their names and case numbers.

In determining whether the disclosure of the document would be unreasonable, I have
had regard to the following matters:
•  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 relevant matters.

I have decided to refuse access to this information as the information is not well known
or publicly available. The individuals who own this information would have a reasonable
expectation that their right to personal privacy would be respected and that their
personal information would not be disseminated to third parties.

Although the FOI request does not expressly seek personal information about these
individuals, disclosure of the documents would reveal information that is specific to them and
not publicly known. Given the nature of the material, any release would effectively identify the
individuals concerned and disclose sensitive details about their involvement in internal
processes.

In considering whether disclosure would involve an unreasonable disclosure of personal
information, I have had regard to the factors in the FOI Guidelines at 6.135. Releasing
information relating to an individual’s conduct, internal handling processes, or draft letters
concerning them would intrude upon their personal privacy, expose them to unwarranted
attention, and is not information they would reasonably expect to be made public.

On this basis, I am satisfied that disclosure would involve an unreasonable disclosure of
personal information and the material is conditionally exempt under s 47F.

Public interest – Section 11A(5) of the FOI Act  

Tribunal Members’ personal information
In considering the public interest under s 11A(5) of the FOI Act, I acknowledge the general
public interest in access to government-held information.

However, I have also considered the privacy interests of the Tribunal Members whose
identities and personal information appear in the documents. The FOI Guidelines indicate
that relevant considerations include whether the information is already publicly known,
whether the individual is known to be associated with the matters described, and the extent
to which disclosure would intrude upon their privacy.

The names and Member-related information were recorded in a confidential internal context
and are not otherwise publicly known. Disclosure would identify those individuals and link
them with internal processes in a way they could not reasonably expect under the FOI Act.
Releasing this information could cause harm or distress to the individuals concerned by
associating them with matters they would not reasonably anticipate being made publicly
available.

Protecting the privacy of Members in these circumstances supports confidence in the
Tribunal’s handling of personal information and avoids unnecessary adverse effects arising
from disclosure.

On balance, I consider that the public interest in protecting the privacy of Members
outweighs the public interest factors favouring disclosure. I therefore find that release of this
information would be contrary to the public interest.

Tribunal applicants and other third parties

I have also considered the public interest in disclosing the personal information of Tribunal
review applicants and other third parties whose information appears in the documents. While
transparency in government processes is an important public interest factor, it must be
balanced against the privacy interests of the individuals identified.

The personal information of these individuals was provided to the Tribunal for the purposes
of their Tribunal review and other administrative processes. The information was therefore
provided for a limited purpose and the contents of those documents are not publicly
assessable. I find that the disclosure of these documents could reasonably be expected to
cause harm and distress to the individuals concerned, particularly where their involvement
arose from procedural or administrative interactions with the Tribunal.

Protecting the privacy of review applicants and third parties supports confidence in the
Tribunal's handling of personal information and ensure that individuals can participate in
Tribunal processes without concerns that their personal information will be made public.

On balance, I consider that the public interest in protecting the privacy of those individuals
outweighs the public interest considerations favouring disclosure. I therefore find that
disclosure of the information would be contrary to the public interest under section 11A(5) of
the FOI Act.

Your review rights

Information about how you can apply for a review of this decision or complain about how we
have dealt with this matter is set out in the attached fact sheet, FOI 2.

If you have any questions about this decision, please contact me at xxx@xxx.xxx.xx.

Yours sincerely,

Tracy L
Authorised FOI Officer (APS 6)

Attachments
FOI 2 – Information about reviews and complaints under the Freedom of Information Act

Level 6, 83 Clarence Street
Sydney NSW 2000

GPO Box 9955 Sydney NSW 2001

Information  about  reviews  and  complaints  under  the
Freedom of Information Act

What should I do prior to applying for internal review or contacting the Office of
the Australian Information Commissioner?

Before  you  apply  for  an  internal  review  or  contact  the  Office  of  the  Australian  Information
Commissioner, we recommend that you telephone the officer who made the FOI decision. It is
often possible to resolve concerns or answer your questions using this approach and, if not,
the officer will be able to assist you in applying for review.

How do I apply for internal review to the ART?

You  can  apply  to  us  for  an  internal  review  of  the  FOI  decision.  The  application  for  internal
review  must  be  made  within  30  days  or  such  further  period  as  we  allow,  after  the  day  the
decision is notified to you. To apply for an internal review you must do so in writing. You may
also wish to explain why you are not satisfied with the decision. A different and more senior
officer authorised under the Freedom of Information Act 1982 (the FOI Act) will conduct the
internal review and make a new decision within 30 days after receipt of your application.

If you have already applied for internal review and want to seek a further review of that decision,
you will need to apply to the Australian Information Commissioner.

How do I apply for review to the Australian Information Commissioner?

You may also apply directly to the Australian Information Commissioner for review of the FOI
decision. The application for review must be made within 60 days after the day notice of the
decision was given. An application for review must be in writing, include details of how notices
in relation to the review are to be sent to you and include a copy of the decision. You may also
wish  to  explain  why  you  are  not  satisfied  with  the  decision.  An  online  application  form  is
available  on  the  Office  of  the  Australian  Information  Commissioner’s  website  found  here:
Information Commissioner Review Application form.

What  if  I  want  to  make  a  complaint  about  the  handling  of  a  Freedom  of
Information request?

If you have a complaint about the way in which we have processed your request for access
under  the  FOI  Act  you  can  ask  the  Australian  Information  Commissioner  to  investigate.  An
online complaint form is available on the Office of the Australian Information Commissioner’s
website, found here FOI Complaint Form.

Where  can  I  find  further  information  or  contact  details  for  the  Office  of  the
Australian Information Commissioner?

Further  information  is  available  on  the  Office  of  the  Australian  Information  Commissioner’s
website at www.oaic.gov.au and you can contact the office on 1300 363 992 or by email at
xxxxxxxxx@xxxx.xxx.xx.

FOI 2 (June 2025)