Dear Office of the Australian Information Commissioner,

The following is an application for the purposes of the FOI Act.

I am conducting research, across a range of Government agencies, into the Government's enterprise bargaining framework for the Commonwealth Public Service. Specifically, in the interests of equity and transparency, whether the Government's policy to reduce the living standards of rank and file public servants (that is, public servants who are not considered senior executive service staff ('SES')) also extends to SES public servants.

Accordingly, I request documents which detail the precise salary paid to each of the Office of the Australian Information Commissioner’s (OAIC’s) SES officers in the following financial years - FY2014/15, FY 2015/16 and FY2016/17. That information might be included in the group certificates/end-of-year PAYG payments summaries issued by the OAIC to its SES officers, or common law contracts relating to the employment of the relevant SES officers or, any relevant determinations made under subsection 24(1) or 24(3) of the Public Service Act 1999 in respect of those relevant SES officers or, perhaps a document prepared pursuant to s.17 of the FOI Act. Such documents can be quickly and easily identified and retrieved, and will efficiently and accurately provide the information the subject of my request.

I am willing to agree to the decision maker redacting all information contained in any relevant document with the exception of the following:
- information that discloses the relevant SES officer’s name;
- information that discloses that officers precise salary for the relevant financial year; and
- information that identifies what the document is (eg. a group certificate/payment summary, an employment contract or a s.23(1) Determination) and the period that it covers.

I am willing to further narrow the scope of my request by limiting it to officers employed by the OAIC who, at the time of my application, were categorised as SES officers, meaning that:
- OAIC staff who were once SES officers at the OAIC, but weren’t categorised as such at the time of this application; and
- the documents the subject of my request that pertain to SES officers who are no longer employed by the OAIC;
are discounted from the scope of my application.

I make the following submissions in support of my application.

The precise remuneration paid to public servants for performing public duties is a matter of wide and countervailing public interest. That is established by authority including that set out in Re Ricketson and Royal Women’s Hospital (1989) 4 VAR 10; Re Forbes and Department of Premier & Cabinet (1993) 6 VAR 53; Re Stewart and Department of Transport (1993) 1 QAR 227; Re Thwaites and Metropolitan Ambulance Service (unreported, 13 June 1997); Re Milthorpe and Mt. Alexander Shire Council (1997) 12 VAR 105; Re National Tertiary Education Industry Union (Murdoch Branch) and Murdoch University; Ors [2001] WAICmr 1 and Asher and Department of State and Regional Development [2002] VCAT 609.

In Re Forbes, Deputy President Ball said (at page 60):
"Mr Baxter is a senior public servant performing very significant public functions and being paid wholly from money provided by the public. The public is entitled to know precisely how much of its money is received in salary and entitlements by senior public servants for performing functions on behalf of the public."

In Re Stewart, at pp.257-258, the Information Commissioner observed:
"It has been held […] that there is a general public interest in seeing how the taxpayers' money is spent which is sufficient to justify the disclosure of the gross income payable from the public purse to the holder of a public office. […] see [Re Ricketson and Royal Women's Hospital (1989) 4 VAR 10, and Re Forbes and Department of the Premier and Cabinet (1993) 6 VAR 53]."

In Re National Tertiary Education Industry Union, the Commissioner observed (at [68]):
"I recognise that there is a public interest in the public receiving value for its money spent on public education, especially in the present climate of financial restrictions. I agree with the Tribunal in Re Ricketson and Re Forbes that the public is entitled to know how much of its money is received in salary and entitlements by senior public officers for performing functions on behalf of the public and that such information is the subject of legitimate public interest and discussion."

In Asher, Deputy President McNamara stated:
"The total remuneration paid to senior public officers has been, and continues to be, a matter of public concern and public debate. The authorities referred to above indicate the fact that the taxpayers ultimately meet the remuneration gives them a legitimate interest in this matter, even although it is one that it is clearly a matter relative to the personal affairs to the officers themselves. As Mr Edwards notes, his actions as Secretary must ultimately be regulated by the law which must take precedence over any government policy, or one might say any private assurance that he might give to a particular officer. The existence of authorities such as Forbes and Milthorpe indicates that conformably with the Freedom of Information Act no officer, certainly no senior officer, could legally obtain an absolute guarantee of confidentiality of his or her total remuneration package figure without some special enabling legislation."

If this request is refused by the OAIC, that decision will:
- overturn the above-mentioned authorities that establish the wide and prevailing public interest in knowing precisely how much public funding senior public servants receive for performing public duties; and
- represent a significant retrograde step in respect of the transparency and accountability of the executive arm of the government in Australia.

I make the following further submissions in support of my application.

There are approximately 155,000 Commonwealth public servants, most of whom, even after three years of negotiation, are currently embroiled in what a Senate Committee tasked with inquiring into the impact of the Government's workplace bargaining policy described in its report (http://www.aph.gov.au/Parliamentary_Busi...) as the most divisive and least productive bargaining approach in the Australian public service in 30 years. It is in the wide public interest of all rank and file Commonwealth public servants and their families who have had their standards of living reduced over the last 3 years under the Government’s industrial relations policy for public servants, to know whether the Government intends that just rank and file public servants deserve to have their living standards reduced, or whether that policy also extends to highly paid SES public servants (that is, whether the wage restraint imposed by the Government is mutually shared by rank and file staff as well as APS senior executives).

An additional wide public interest aspect that relates to my application is that employment relations (including the regulation of pay and conditions) in the public sector are widely considered to serve as a role model for industrial relations in the private sector (see, for example, Creighton B and Forsyth R [Eds.] Rediscovering Collective Bargaining, 2012 at pp.184-185). That is, the way in which a government treats its staff (public servants) can be considered emblematic of the way in which a government considers employees across the broader workforce should be treated by their employers. The current Commonwealth Government has an employment relations policy in place (known as the ‘Australian Public Service Bargaining Framework’) which necessarily involves reducing the living standards of rank and file (non-SES) public servants. Senior management at the OAIC has decided, at its discretion, to adopt and enforce, against its rank and file staff, the Government’s employment relations policy. Part of the purpose of my application is to determine whether the Government’s policy to reduce the living standards of rank and file public servants also extends to SES public servants. The documents the subject of my request will shed considerable light on that issue.

It is immutably in the public interest of APS rank and file employees and their families, but also Australian taxpayers and working Australians more generally, to know whether it is the current Government’s view that rank and file employees who are not categorised as senior executives (or equivalent) are generally overpaid, and should therefore have their living standards reduced by their employers, while senior executives (or their equivalents) are generally underpaid and should have their living standards increased.

Given that the Government’s treatment of its own staff can be considered a weathervane as to how the Government feels employers across the broader Australian workforce should treat their staff, the documents the subject of my request will offer the Australian public a valuable insight into the Government’s views concerning what it considers to be the proper distribution of wealth amongst Australian society. Such an insight will augment the public’s knowledge of the Government’s existing policies concerning the distribution of wealth among Australian society – for example, the reduction in the level of penalty rates paid to some of the lowest paid members of the Australian workforce, the reduction of taxation rates for the highest paid members of Australian society, and the reduction of company taxation rates (the financial benefit of which will flow to senior executives and the recipients of dividends/the owners of capital and will otherwise increase inequality – see: http://www.canberratimes.com.au/federal-... ).

Such information is of particular public interest in the context of an Australian society increasingly characterized by widening inequality and a hollowing out of the middle class (see here: http://www.canberratimes.com.au/federal-... https://www.businessinsider.com.au/infog... http://www.news.com.au/national/income-i... and http://thenewdaily.com.au/money/your-bud... ).

While not solely determinative as to the existence of a wide public interest in a particular matter, newspaper coverage of certain issues of public interest can be a gauge as to matters in the public interest. To that end, public sector remuneration is a matter routinely covered by major Australian newspapers. Here are some recent examples:
http://www.theaustralian.com.au/news/hea... - which reveals senior executive remuneration at the CSIRO has increased by 30% over the past three years, while rank and file CSIRO public servants have had their salaries frozen;

http://www.theaustralian.com.au/national... - an article demonising rank and file public servants;

http://www.theaustralian.com.au/opinion/... - an article which criticises the pay and conditions of public servants;

http://www.canberratimes.com.au/national... - an article concerning the Australian Public Service Commission’s decision not to publicly disclose the remuneration level of its senior executives;

http://www.canberratimes.com.au/federal-... - an article concerning the Government’s response to public anger resulting from Australia Post’s initial refusal to disclose the $5.6 million salary of its chief executive and noting that the Government recently wrote to government entities demanding they reveal their executive remuneration packages on the back of comments from Senator James Paterson, who said it was "not appropriate" for the salaries of government executives to be shielded from public scrutiny and that taxpayers have a right to such information.

In support of my application I now turn to address some of the spurious reasoning put forward by a number of Government agencies who have refused requests of a similar nature to this one.

Spurious claim #1 - that information concerning SES salaries is confidential and the relevant individuals would have had no expectation that information would be open to public scrutiny

The above claim is misguided because:
• The precise remuneration paid to statutory officer holders, agency heads and Departmental secretaries is publicly set out in determinations made by the Remuneration Tribunal. Rank and file APS staff have their precise remuneration levels disclosed publicly by way of enterprise agreements published on the websites of each relevant Department/Agency. Yet SES staff seem to consider that their remuneration levels are immune from the level of accountability and transparency apparently only reserved for agency heads/departmental secretaries and rank and file APS staff. It cannot be the case that SES public servants are a special, protected type of public servant subject to a lesser form of public accountability and transparency than that apportioned to agency heads, departmental secretaries and rank and file APS staff.

• Every public servant should know that they are accountable to the public for every dollar of public funding spent on the performance of public duties. Being accountable for such expenditure is an obligation imposed on APS employees under the Public Service Act 1999. It is scarcely credible to suggest that SES staff would have had no expectation that information about their remuneration levels would be open to public scrutiny (particularly given that rank and file and departmental secretary/agency head remuneration levels are subject to such scrutiny)

• My application lists a range of authorities that establish the wide and countervailing public interest in knowing the precise remuneration paid to senior public servants for performing public duties. My application specifically mentions the matter of Asher and Department of State and Regional Development [2002] VCAT 609, in which the presiding Deputy President stated that “[t]he existence of authorities such as Forbes and Milthorpe indicates that conformably with the Freedom of Information Act no officer, certainly no senior officer, could legally obtain an absolute guarantee of confidentiality of his or her total remuneration package figure without some special enabling legislation.” I note that no legislation exists that guarantee the confidentiality of APSC SES remuneration.

Spurious claim #2 - that the disclosure of SES salaries would lead to greater expenditure on SES salaries

• Certain agencies have claimed that the disclosure of SES salaries would lead to increased public expenditure on SES salaries. Despite that paragraph [6.101] of the FOI Guidelines provides that in order for the conditional exemption at ss.47E(a)-(d) to apply, ‘[t]here must be more that merely an assumption or allegation that damage may occur if the document were to be released’ no evidence whatsoever has been provided by any agency to support the above mentioned assertion. Spurious claims that the disclosure of the salaries of senior public servants would lead to a wages blow out were also raised in the authorities referred to above – in those cases, such claims were rightly dismissed as being without basis.

• Research conducted by the Australian Public Service Commission and available here: http://www.canberratimes.com.au/national... indicates that over the past 10 years the salaries of rank and file public servants has increased by 32%-36% (in line with inflation). The salaries of SES officers, on the other hand, have increased at a much greater rate (44%-64%) – in some cases, SES salaries have increased at double the rate of rank and file APS staff. The evidence suggests, therefore, that the SES invoked practice of withholding SES remuneration from public accountability is, unsurprisingly, resulting in taxpayers paying senior executive public servants far more than would be the case if those salaries were precisely disclosed (as is the case for agency heads, departmental secretaries and rank and file workers).

Spurious claim #3 - that compliance with Rule 27 of the Public Governance, Performance and Accountability (Financial Reporting) Rule 2015 (which does not require SES remuneration to be specifically reported) and particular remuneration policies means that the specific remuneration of SES staff need not be disclosed pursuant to an application made under the FOI Act.

Certain agencies have argued that because those agencies:

• comply with Rule 27 of the Public Governance, Performance and Accountability (Financial Reporting) Rule 2015 (which does not require SES remuneration to be specifically reported) and administrative policies concerning executive remuneration; and

• publish some broad, imprecise and generic information about SES remuneration in their annual reports and on their websites;
that they are sufficiently accountable in respect of the remuneration of their SES. However, it cannot be that compliance with:

• a legislative instrument made by a single politician (noting that the recently amended/remade Public Governance, Performance and Accountability (Financial Reporting) Rule 2015 requires significantly less detail on SES remuneration to be publicly disclosed than was previously the case); and

• certain administrative policies concerning budget processes and SES remuneration,
constitutes a proxy for compliance with the FOI Act, being legislation made by the Australian Parliament as a whole (rather than a single Minister). Nor does compliance with the above-mentioned rules and policies abrogate an agency’s obligation, or acquit an agency from its obligation, to comply with the requirements of the FOI Act. Further, compliance with the above-mentioned rule and policies in no way diminishes the established wide and countervailing public interest in knowing precisely the quantum of tax payer funds paid to senior public servants for performing duties on behalf of the public.

Further, the imprecise, broad and generic information that agencies (including the OAIC) publish about the remuneration of their SES officers is presented so broadly that it is incapable of any detailed or sensible analysis – particularly when having regard to my request, the purpose for which is to determine the precise level of salary increases given to SES officers while rank and file APS staff have had their living standards reduced.

Having regard to the matters set out at subsection 11A(3) of the FOI Act, I submit that access be provided to the documents the subject of my application because granting access would:
• promote the objects of the FOI Act including by “increasing scrutiny, discussion, comment and review of the Government’s activities”, and by “increas[ing] recognition that information held by the Government is to be managed for public purposes, and is a national resource”;

• inform debate on a matter of public importance being:
o   the level of public funds directed towards senior public servants in respect of their performance of public duties;
o   whether the Government considers rank and file APS employees should have their standards of living reduced while SES employees standards of living are maintained or improved; and
o   whether the Government’s preferred distribution of wealth in Australia society is such that rank and file employees are overpaid and should have their standards of living reduced, while senior executives (or their equivalents) are remunerated and should have their living standards improved; and

• promote effective oversight of public expenditure because currently, while rank and file APS staff and agency head/departmental ecretary remuneration levels are precisely and publicly disclosed, SES salaries are not subject to the same level of public scrutiny

Thank you.
[name not required to be provided under the FOI Act]