FOI 24804 Decision and Statement of Reasons.pdf

FOI

Internal review decision made under the Freedom of Information Act 1982
Internal review decision and reasons for decision of Position Number 622009913,
Information Law Section, Legal Services and General Counsel Branch, Department of
Veterans’ Affairs

Applicant:

Verity Pane

Date of charges notice:

27 September 2018

Date of charges decision:

2 October 2018

FOI reference number:

FOI 23544

Internal review decision date:
31 October 2018

Internal review reference number:  IR 24804

Sent by email:

xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Verity Pane,

1.
The purpose of this letter is to give you a decision about your request for internal review under the
Freedom of Information Act 1982 (FOI Act).

2.
I have made a decision to vary the original decision made by Position Number 62210022, Information
Law Section, Legal Services and General Counsel Branch, by increasing the charge payable to
$2,500.79. This takes into account a 25 per cent reduction of the overall charge of $3,334.39 on the
grounds of public interest. A deposit of $625.20 is required.

Authority to make this decision

3.
I, Position Number 622009913, Acting Director, Information Law Section, am an officer authorised by
the Secretary of the Department of Veterans’ Affairs (the Department) to review decisions about
access to documents in the possession of the Department in accordance with section 54C) of the
Freedom of Information Act 1982 (the FOI Act).

1

Summary

4.
On 16 July 2018, you made a request for access to documents in the possession of the Department.
Your request sought access to:

“…In light of recent media reporting and admissions by the Minister in Federal Parliament that
the Department spent more than $0.6m in external legal services fees in regards to just one
veteran - Martin Rollins - in relation to DVA’s deliberate backdating of a rewrite of a DVA policy
to exclude Mr Rollins’ receiving a benefit he was entitled to at the time of his applying for it
(http://www.abc.net.au/7.30/dva-secretly-changed-rules-to-deny-veterans-claim/9883774)
there is a public interest in understanding how the Department is expending public funds on
external legal services.

While the Department reports just one summary total of expenditure on external legal services
in its annual reports, this is clearly insufficient and far too opaque to understand what the
Department is spending on external legal costs for individual matters. While this information
does indicate the Department spends between $7m - $10m on external legal services roughly
every financial year, it gives no indication whether it may relate to only a small number of
individual veterans or many or what the Department roughly spends per legal issue - which is
important to understand when considering if the claims that the Department is combative and
litigious are overstated or not.

Certainly the recent admission (initially refuted) that the Department has spend in excess of
half a million dollars, litigiously, to defend this backdated change of policy to deny Martin
Rollins a benefit that existed at the time he applied for it (and ironically this legal expenditure
many hundreds of thousands of dollars greater than the benefit he was otherwise entitled to
receive), raises public interest questions whether such excessive external legal expenditure is
endemic or is a one off isolated case.

To that end, under FOI, I seek under s 17 of the FOI Act for a summary document to be created
(so as to avoid unnecessary disclosure of irrelevant Departmental information) from data in the
Departments financial and information management systems, to break down these global
external legal services expenditure, so that greater transparency is given.

I seek a breakdown to be provided for the last three financial years - FY17/18, FY16/17, and
FY15/16 - and to be broken down to matters involving individual veterans and other. Where
matters involved individual veterans, this should be further broken down to stating the
cumulative external legal services expenditure per veteran involved (with each veteran referred
to by pseudonym - so first veteran is Veteran A, next is Veteran B, and so on). In order to reduce
burden, where external legal expenditure involving an individual veteran is below $10K
cumulative for each financial year, they may be reported as a group (as the interest is in
excessive external legal expenditure). An example of the layout I seek is below:

2

...............................FY17/18...................FY16/17....................FY15/16
......................................$...............................$...............................$
Other
Veteran A
Veteran B
etc
Veterans > $10K…”

5.
On 15 August 2018, the Department issued you a notice in accordance with section 24AB of the
FOI Act, on the grounds that processing your request would unreasonably divert the resources of the
Department from its operations as specified in section 24AA(1)(a)(i) of the FOI Act due to its size and
complexity; noting 60 hours would be required to process the request.

6.
Following this notice, you revised the scope of your request, noting you “ …would however be willing
to refine the scope to FY15/16 in the first instance…” As this removed the practical refusal reason, it
was agreed the Department would process the request.

7.
On 27 September 2018, you were issued with a charges notice advising of a preliminary assessment
of $690.75 in respect of the processing of your request.

8.
On the same day you responded to the notice. In your response you did not argue that the charge
was incorrectly assessed, that the charge should be reduced or not imposed, that the charge would
cause you financial hardship or that there were public interest considerations in reducing or waiving
the charge. You also did not advise you would agree to pay the charge or that you wished to
withdraw your request. The Department took your email as being a general objection to the charge
and proceeded to issue a charges decision.

9.
On 2 October 2018, the Department issued you with a decision advising that a charge to process your
request was payable. You were advised a deposit would be required and advised of your review
rights.

10.
On the same day you responded to the decision claiming that the decision was a “…summary charges
decision, not a notification…” and that is was “…not appropriate to issue a charges decision…without
notification having been given earlier…” The Department replied to you, advising that a charges
notice was issued and that you could seek an internal review. You responded and advised “…it was
obvious review was sought…”

11.
In relation to the internal review, you raised contentions that the charge was “…unsupported…with
no substantive evidence…” and with references to an ANAO direction in relation to record keeping,
that “…this gives rise to public interest grounds for the release of the information…”

3

Decision

12.
I have made a decision to vary the original decision made by Position Number 62210022, Information
Law Section, Legal Services and General Counsel Branch, by increasing the charge payable to
$2,500.79. This takes into account a 25 per cent reduction of the overall charge of $3,334.39 on the
grounds of public interest. A deposit of $625.20 is required.

Material taken into account

13.
In accordance with section 26(1)(a) of the FOI Act, my findings on any material question of fact, the
material on which those findings were based and the reasons for my decision to apply a charge to
process your request follows.

14.
I have taken the following material into account in making my decision:

  the terms of your request and as subsequently revised;

  the ease in which the Department can retrieve the data/information you have requested to
create a document that does not already exist;

  the content of the document that falls within the scope of your request once the document is
created;

  information received by the relevant business area about the work involved in creating the
document you have requested;

  information you have provided in your responses to the Department, insofar as it is relevant to
this decision;

  sections 3, 11 and 11A of the FOI Act which give the Australian community a legally
enforceable right to obtain access to information held by the Government of the
Commonwealth. I also considered section 29 of the FOI Act (Charges) relevant to my decision;

  the Freedom of Information (Charges) Regulations 1982 (Charges Regulations); and

  the Guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (FOI Guidelines).

15.
A full extract of all FOI Act provisions used to make my decision are provided in Schedule 1.

Reasons for Decision

16.
Section 29 of the FOI Act provides that charges can be imposed for processing requests. Unless a
decision is made to waive the processing charge in whole or in part, the combined effect of section
4

11A(1)(b) of the FOI Act and Regulation 11(1) of the Charges Regulations is that an applicant is
required to pay any charge before any access is given.

17.
The Charges Regulations specify different rates for the various activities involved in processing a
request with the first five hours of decision-making time free for all FOI applicants.

Is the charge wrongly assessed?

18.
You have broadly stated that the charge applied was “…unsupported…with no substantive
evidence…”

19.
The decision issued to you clearly identified the level of work involved in processing your request.
This was developed from information relevant to the initial section 24AB consultation process as
advised to you on 15 August 2018. If the actual work involved differs, the charge can be adjusted
accordingly, which will also take into account any deposit paid.

20.
I am of the view that the hours involved to process your request are significantly greater than
previously estimated.

21.
I have reconsidered the amount of time it will take to search through each line item relating to the
15/16 Financial Year as requested and note that there are in fact 1,443 line items that will need to be
searched, not 700 as noted in the primary decision. Although it is reasonable to assume it may take
approximately 3 minutes on average to search each line item, I have reduced the time required to
investigate each item from 3 to 2 minutes. I have also separated the task of retrieving the initial data
and sorting through the data to gain a more accurate reflection of the stages of work required.

22.
Further, the manner in which the charge was previously assessed did not take into account Part I,
item 3 of the Charges Regulation Schedule. This item enables the Department to charge for actual
costs associated with processing a request in respect of information that is not available in a discrete
form. In this case, it relates to your request for the Department to collate data and arrange it in the
format you have requested; by asking the Department to create the document under section 17 of
the FOI Act. The charge applied at the primary decision was for the standard rate as prescribed by
Part I, item 2 of the Charges Regulation Schedule.

23.
As I have detailed at Schedule 2, the Department will charge for the actual costs involved for an EL1
and APS6 to process your request. The hourly rates applicable to these staff are set by and derived
from the Department’s Enterprise Agreement. The costs incurred for decision-making remain at the
set rate. For these reasons, the charge I have found to be applicable is greater than applied at the
primary decision stage.

Would charges cause financial hardship?

24.
As you have not advised that payment of the charge would cause you financial hardship, I have not
considered a waiver or reduction on the basis of financial hardship.
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Is giving access to the document(s) in the public interest?

25.
You have contended that the charge should be “rescinded or, at a minimum, varied” on the grounds
of public interest. In support, you stated:

“…ANAO states agencies are required to have well documented and recorded monitoring of
their legal services expenditure, as is required by sound financial practice, in order to meet the
requirements of the Financial Management and Accountability Act 1997, as well as the OLSC’s
directives. The unsupported estimates relied on by DVA do not accord with that, inferring a
highly disorganised and poorly recorded history of external legal service provider use, that will
take considerable time to review. This is a clear contradiction here.

Since 1 September 1999, the operating environment for Government legal services has been
predominantly decentralised, with each agency free to choose how its legal needs are met, and
what level of resources should be applied to meet these needs. And while the vast majority of
Commonwealth agencies record minimal external legal services expenditure, DVA is high up on
the top 10 list of agencies whose legal services expenditure exceeds more than the combined
total external legal services expenditure of the bottom half of the APS entities.

ANAO has directed that agencies should have well organised and strongly co-ordinated legal
services purchasing records, right down to the day to day level. As DVA has, via this charges
assessment, asserted it does not have this, and its record keeping is poor and complicated in
this area, this gives rise to public interest grounds for the release of this information.

Where an agency has not keep efficient and effective records of external legal services provider
expenditure, contrary to both OLSC and ANAO and Finance Directives, and yet has expended
substantial sums of public funds on external legal services providers, year on year, for which
there is almost no publicly available information about the processes or details by which these
external legal service providers where given work, or for what purposes, there arises general
public interest grounds, to understand how these public funds were utilised.

This is especially the case if members of Parliament have recently raised and discussed the
issue, especially if targeted to the agency in question, which more easily makes a public interest
argument, because they may make use of a document obtained under the FOI Act in
parliamentary or public debate on an issue of public interest or general interest in their
electorate.

In this case, Senator Derryn Hinch and others have used Questions Without Notice in the Senate
to raise community concerns on DVA’s external legal services expenditure, explicitly seeking the
same sort of details sought as this FOI. Members of the community are interested in how
agencies use public funds, especially when it involves expensive third party arrangements (and
the Commonwealth expends millions of dollars on external legal service providers, mostly
concentrated on just a few large legal entities).

6

Probity and transparency is therefore important to the public in this area. Similarly, how the
DVA uses external legal services against veterans in a matter of public importance, with
volumes of newspaper articles and reams of Hansard pages outlining poor treatment by DVA of
veterans, that is overly litigious and unprofessional.

As such, this charges decision would be rescinded or, at a minimum, varied, because of the
aforementioned…”

26.
Part 4 of the FOI Guidelines detail factors I must take into consideration when considering whether
public interest may apply. As mentioned in those guidelines, the issue is not whether it is in the
public interest to reduce or not to impose a charge, nor whether it is in the public interest for a
particular applicant to be granted access to a document. While you as the applicant may benefit from
disclosure of the documents, the question is whether there is a benefit that will flow more broadly to
the public or substantial section of the public if the documents are to be released to you.

27.
In deciding whether giving access to the documents is in the general public interest or in the interest
of a substantial section of the public I have considered both the content of the documents [content
of the document once created], and the context of its release.

28.
I have considered:

•
whether giving access to the document in question is in the general public interest or in the
interest of a substantial section of the public;

•
the public interest argument you put forward as detailed above;

•
whether disclosure would advance the objects of the FOI Act;

•
whether you can be expected to derive a commercial or personal benefit or advantage from
being given access to the documents and if it is reasonable to expect you to meet all or part of
the charge;

•
whether the document is primarily of interest only to you and is not of general public interest
or of interest to a substantial section of the public; and

•
whether information in the documents has already been published by or commented on by
the Department and the documents do not add to the public record.

29.
Based on the above, I have decided that reducing the charges for disclosure of the document in
question is in the general public interest or in the interest of a substantial section of the public, for
the purpose of a decision in accordance with section 29(5)(b) of the FOI Act, but that this interest
does not warrant a full waiver of the charge. As such, the charge has been reduced by 25 per cent to
bring the total amount payable to $2,500.79.

7

Your liability to pay a charge

30.
As the charge is more than $100.00, you will need to pay a deposit of $625.20 (which is 25 per cent
of the total charges applying to your request) before further action can be taken on your request.
This amount is set in Regulation 12(2)(b) of the Charges Regulations.

31.
The deposit is not refundable except in some limited circumstances (for example, if the Department
fails to make a decision on your request within the statutory time limit), or may be refundable in part
if the final charge is less than the deposit paid.

32.
On payment of the charge in full, or the required deposit, processing of your request will commence.
Payment can be made by:

(a)  forwarding a cheque for the required amount to:

Post: Legal Services & Assurance Branch, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Required Reference:   FOI24804/Verity Pane

or

(b)  paying by electric funds transfer directly into the Department’s banking account using the
following details:

Account name:
Reserve Bank of Australia
BSB:

092009
Account number:
112084
Required Reference:   FOI24804/Verity Pane

Access to the document requested

33.
The Department will continue to process your request once the deposit (or the full charge if you
prefer) is received. If you pay the deposit, the document will not be released to you until payment of
the remaining charge has been made.

34.
Please note that payment of a charge does not guarantee full access to the document.

Your rights of review

Your rights of review

35.
Under section 54L of the FOI Act, if you are dissatisfied with my decision, you may apply to the
Australian Information Commissioner to review my decision. An application for review by the
8

Information Commissioner must be made in writing within 60 days of the date of this letter, and be
lodged in one of the following ways:

Online: www.oaic.gov.au
Post: Office of the Australian Information Commissioner
GPO Box 5218, Sydney NSW 2001
Facsimile: (02) 9284 9666
Email: xxxxxxxxx@xxxx.xxx.xx
In person:  Level 3, 175 Pitt Street, Sydney NSW.

36.  More information about your review rights under the FOI Act is available in Fact Sheet 12 published
by the Office of the Australian Information Commissioner: http://oaic.gov.au/freedom-of-
information/foi-resources/freedom-of-information-fact-sheets/foi-factsheet-12-your-review-rights

Contacts

37.
If you wish to discuss this decision, please do not hesitate to contact me using the following details:

Post: Legal Services & Assurance, Department of Veterans’ Affairs
GPO Box 9998, Canberra ACT 2601
Facsimile: (02) 6289 6337
Email: xxxxxxxxxxx.xxx@xxx.xxx.xx

Yours Sincerely,

Position Number 62209913
Acting Director
Information Law Section | Legal Services & General Counsel Branch
Legal Assurance and Governance Division

31 October 2018

9

FOI
Schedule 1

Schedule of relevant provisions in the FOI Act

3  Objects—general
(1)
The objects of this Act are to give the Australian community access to information held by
the Government of the Commonwealth or the Government of Norfolk Island, by:

(a)
requiring agencies to publish the information; and

(b)
providing for a right of access to documents.
(2)
The Parliament intends, by these objects, to promote Australia’s representative democracy
by contributing towards the following:
(a)
increasing public participation in Government processes, with a view to promoting
better informed decision-making;
(b)
increasing scrutiny, discussion, comment and review of the Government’s
activities.
(3)
The Parliament also intends, by these objects, to increase recognition that information held
by the Government is to be managed for public purposes, and is a national resource.
(4)
The Parliament also intends that functions and powers given by this Act are to be
performed and exercised, as far as possible, to facilitate and promote public access to
information, promptly and at the lowest reasonable cost.

11  Right of access
(1)
Subject to this Act, every person has a legally enforceable right to obtain access in
accordance with this Act to:

(a)
a document of an agency, other than an exempt document; or

(b)
an official document of a Minister, other than an exempt document.

(2)
Subject to this Act, a person’s right of access is not affected by:

(a)
any reasons the person gives for seeking access; or
(b)
the agency’s or Minister’s belief as to what are his or her reasons for seeking
access.

11A  Access to documents on request
Scope

(1)
This section applies if:
(a)
a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:

(i)
a document of the agency; or

(ii)
an official document of the Minister; and
(b)
any charge that, under the regulations, is required to be paid before access is given
has been paid.

(2)
This section applies subject to this Act.

Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the following:
(a)
section 12 (documents otherwise available);
(b)
section 13 (documents in national institutions);
(c)
section 15A (personnel records);
(d)
section 22 (access to edited copies with exempt or irrelevant matter deleted).


10

Mandatory access—general rule
(3)
The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.

Exemptions and conditional exemptions
(4)
The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.

Note:
Access may be given to an exempt document apart from under this Act, whether or not in response to a
request (see section 3A (objects—information or documents otherwise accessible)).

(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.

Note 1:  Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2:  A conditionally exempt document is an exempt document if access to the document would, on balance, be
contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3:  Section 11B deals with when it is contrary to the public interest to give a person access to the document.

(6)
Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:

(a)
a conditionally exempt document; and

(b)
an exempt document:

(i)
under Division 2 of Part IV (exemptions); or
(ii)
within the meaning of paragraph (b) or (c) of the definition of exempt
document in subsection 4(1).

23  Decisions to be made by authorised persons
(1)
Subject to subsection (2), a decision in respect of a request made to an agency may be
made, on behalf of the agency, by the responsible Minister or the principal officer of the
agency or, subject to the regulations, by an officer of the agency acting within the scope of
authority exercisable by him or her in accordance with arrangements approved by the
responsible Minister or the principal officer of the agency.
(2)
A decision in respect of a request made to a court, or made to a tribunal, authority or body
that is specified in Schedule 1, may be made on behalf of that court, tribunal, authority or
body by the principal officer of that court, tribunal, authority or body or, subject to the
regulations, by an officer of that court, tribunal, authority or body acting within the scope
of authority exercisable by him or her in accordance with arrangements approved by the
principal officer of that court, tribunal, authority or body.

26  Reasons and other particulars of decisions to be given
(1)
Where, in relation to a request, a decision is made relating to a refusal to grant access to a
document in accordance with the request or deferring provision of access to a document,
the decision-maker shall cause the applicant to be given notice in writing of the decision,
and the notice shall:
(a)
state the findings on any material questions of fact, referring to the material on
which those findings were based, and state the reasons for the decision; and
(aa)
in the case of a decision to refuse to give access to a conditionally exempt
document—include in those reasons the public interest factors taken into account
in making the decision; and
Note:
Access must generally be given to a conditionally exempt document unless it would be contrary to the public
interest (see section 11A).
11

(b)
where the decision relates to a document of an agency, state the name and
designation of the person giving the decision; and

(c)
give to the applicant appropriate information concerning:

(i)
his or her rights with respect to review of the decision;
(ii)
his or her rights to make a complaint to the Information Commissioner in
relation to the decision; and
(iii)
the procedure for the exercise of the rights referred to in subparagraphs (i)
and (ii); including (where applicable) particulars of the manner in which an
application for internal review (Part VI) and IC review (Part VII) may be
made.
(1A)
Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (1).
(2)
A notice under this section is not required to contain any matter that is of such a nature
that its inclusion in a document of an agency would cause that document to be an exempt
document.
(see section 11A).

29
Charges

(1)
Where, under the regulations, an agency or Minister decides that an applicant is liable to pay a
charge in respect of a request for access to a document, or the provision of access to a
document, the agency or Minister must give to the applicant a written notice stating:

(a)  that the applicant is liable to pay a charge; and

(b)  the agency's or Minister's preliminary assessment of the amount of the charge, and
the basis on which the assessment is made; and

(c)  that the applicant may contend that the charge has been wrongly assessed, or should
be reduced or not imposed; and

(d)  the matters that the agency or Minister must take into account under subsection (5) in
deciding whether or not to reduce, or not impose, the charge; and

(e)  the amount of any deposit that the agency or Minister has determined, under the
regulations, that the applicant will be required to pay if the charge is imposed; and

(f)  that the applicant must, within the period of 30 days, or such further period as the
agency or Minister allows, after the notice was given, notify the agency or Minister in
writing:

(i)  of the applicant's agreement to pay the charge; or

(ii)  if the applicant contends that the charge has been wrongly assessed, or should
be reduced or not imposed, or both--that the applicant so contends, giving the
applicant's reasons for so contending; or

(iii) that the applicant withdraws the request for access to the document concerned;
and

(g)  that if the applicant fails to give the agency or Minister such a notice within that period
or further period, the request for access to the document will be taken to have been
withdrawn.
12

(2)
If the applicant fails to notify the agency or Minister in a manner mentioned in paragraph (1)(f)
within the period or further period mentioned in that paragraph, the applicant is to be taken
to have withdrawn the request for access to the document concerned.

(3)
An agency or Minister must not impose a charge in respect of a request for access to a
document, or the provision of access to a document, until:

(a)  the applicant has notified the agency or Minister in a manner mentioned in paragraph
(1)(f); or

(b)  the end of the period or further period mentioned in that paragraph.

(4)
Where the applicant has notified the agency or Minister, in a manner mentioned in
subparagraph (1)(f)(ii), that the applicant contends that the charge should be reduced or not
imposed, the agency or Minister may decide that the charge is to be reduced or not to be
imposed.

(5)
Without limiting the matters the agency or Minister may take into account in determining
whether or not to reduce or not to impose the charge, the agency or Minister must take into
account:

(a)  whether the payment of the charge, or part of it, would cause financial hardship to the
applicant, or to a person on whose behalf the application was made; and

(b)  whether the giving of access to the document in question is in the general public
interest or in the interest of a substantial section of the public.

(6)
If the applicant has notified the agency or Minister in the manner mentioned in subparagraph
(1)(f)(ii), the agency or Minister must take all reasonable steps to enable the applicant to be
notified of the decision on the amount of charge payable as soon as practicable but in any case
no later than 30 days after the day on which the applicant so notified the agency or Minister.

(7)
If:

(a)  that period of 30 days has elapsed since the day on which the agency or Minister was
so notified; and

(b)  the applicant has not received notice of a decision on the amount of charge payable;

the principal officer of the agency, or the Minister, as the case requires, is, for all purposes of
this Act, taken to have made, on the last day of the period, a decision to the effect that the
amount of charge payable is the amount equal to the agency's or Minister's preliminary
assessment of the amount of the charge mentioned in paragraph (1)(b).

(8)
If:

(a)  the applicant makes a contention about a charge as mentioned in subsection (4); and

(b)  the agency or Minister makes a decision to reject the contention, in whole or in part;

the agency or Minister, as the case requires, must give the applicant written notice of the
decision and of the reasons for the decision.
13

Note:          Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of
a statement of reasons.

(9)
A notice under subsection (8) must also state the name and designation of the person making
the decision and give the applicant appropriate information about:

(a)  his or her rights with respect to review of the decision; and

(b)  his or her rights to make a complaint to the Information Commissioner in relation to
the decision; and

(c)  the procedure for the exercise of those rights;

including (where applicable) particulars of the manner in which an application for internal
review (Part VI) and IC review (Part VII) may be made.

(10)  Section 13 of the Administrative Decisions (Judicial Review) Act 1977 does not apply to a
decision referred to in subsection (8).

(11)  A notice under subsection (8) is not required to contain any matter that is of such a nature that
its inclusion in a document of an agency would cause that document to be an exempt
document.

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