
PO Box 7820 Canberra BC ACT 2610
21 August 2020
Our reference: LEX 56248
Mr John Smith
Only by email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Freedom of Information Request – Reconsideration of Charges
I refer to your email dated 22 July 2020, contending that a charge should not be imposed in relation
to the processing of your request dated 6 July 2020, made under the
Freedom of Information Act
1982 (
FOI Act). You requested access to:
'- A document that contains the total number of non-APS staff, filling equivalent roles to
actual APS staff in your department.
- A document that contains a list of all position titles within your department, that are
currently filled by non-APS staff.
Typically these non-APS employees are ostensibly employed through labour hire agencies,
and fulfil functionally equivalent roles to their colleagues.
If no such document exists please advise.’
Background
Services Australia has located one document relevant to your request.
On 17 July 2020, Services Australia notified you that in accordance with section 29 of the FOI Act,
you were liable to pay a charge for the processing of your request, and that the preliminary
assessment of the charge was $75.00 (
preliminary charge).
The preliminary charge was calculated as follows:
Search and retrieval time: 5 hours, at $15.00 per hour:
$75.00
Decision-making time (*after deduction of 5 hours): 0 hours, at
$0.00
$20.00 per hour
TOTAL
$75.00
*The FOI Act provides that the first five hours of decision-making time are free of charge and this is reflected in the
calculation.
Reconsideration of the preliminary charge
On 22 July 2020, you responded to the preliminary charge notification, contending that the
preliminary charge should be reconsidered (
reconsideration request). In that correspondence you
stated:
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PO Box 7820 Canberra BC ACT 2610
‘I seek an internal review, in the hope that this charge will not be imposed.
The use of labour hire services in the public service is a matter that has been discussed by
many outlets, in both the mainstream and independent media.
Further clarity on the use of labour hire employees throughout government departments,
(both Commonwealth and State) is of interest to a substantial section of the public.
Information about the number of labour hire employees working APS-equivalent roles, is not
currently available within the DHS annual reports. That is why this FOI request is necessary.
To substantiate this point, let me point out a number of recent articles written about public
sector use of labour hire:
Sydney Morning Herald:
https://www.smh.com.au/politics/federal/union-calls-for-end-to-public-service-labour-hire-
20180802-p4zv55.html
ABC News:
https://www.abc.net.au/news/2020-07-03/australian-public-service-shrank-before-
coronavirus-pandemic-hit/12417662
https://www.abc.net.au/news/2019-11-06/nsw-government-splashing-cash-contractors-and-
short-term-workers/11673498
Michael West Media:
https://www.michaelwest.com.au/boomers-vs-millennials-the-gig-economy-breaks-enters-
the-australian-public-service/
It is also a topic that has been of interest to the CPSU, a union that represents a substantial
section of the public (namely, public servant union members)
https://www.cpsu.org.au/campaigns/scrap-the-cap
In light of the above, please waive the fee associated with this request; on the ground that
this is a public interest inquiry.’
I have reconsidered the preliminary charge and decided to apply a 20% reduction. The reasons for
my decision are set out below.
What I took into account
In reaching my decision I took into account:
the preliminary charge;
your reconsideration request;
the document falling within the scope of your request;
relevant case law;
the FOI Act;
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PO Box 7820 Canberra BC ACT 2610
the
Freedom of Information (Charges) Regulations 1982 (
Regulations); and
the Guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (
Guidelines).
Relevant legislation
Subsection 29(4) of the FOI Act provides that, where an applicant has notified an agency that they
contend that a charge should be reduced or not imposed in relation to a request under the FOI Act,
the agency may decide that the charge is to be reduced or not imposed.
Subsection 29(5) of the FOI Act provides that, without limiting the matters that the agency may take
into account when making a decision about whether to reduce or not impose a processing charge,
the decision maker must consider:
whether payment of a charge, or part of it, would cause financial hardship to an applicant;
and
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.
Subsection 29(8) of the FOI Act provides that, if an applicant makes a contention about a charge as
mentioned in subsection 29(4), and the agency makes a decision to reject the contention in whole
or in part, the agency must give the applicant written notice of the decision and the reasons for the
decision.
Reconsideration of the charge
In order to complete a comprehensive reconsideration of the preliminary charges, I have
reconsidered the calculations set out in the preliminary charge and set out my conclusions below.
Search and retrieval time
In response to your request, Services Australia conducted searches of its records for any relevant
documents. These searches included consultations with the relevant business area within Services
Australia to:
identify the relevant document;
compile the relevant document; and
retrieve the relevant document.
The preliminary charge estimated 5 hours of search and retrieval time. The business area that
undertook the searches confirmed that this was an accurate reflection of the time taken to complete
the task. Accordingly, I have decided not to revise the search and retrieval component of the
preliminary charge.
Decision-making time
When calculating the decision-making component of the preliminary charge, I estimated the time
required to:
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PO Box 7820 Canberra BC ACT 2610
examine the document; and
prepare a statement of reasons for the decision.
I do not consider that the decision-making process will exceed 5 hours. Therefore, there is no
charge associated with this component of processing your request.
Financial hardship
Paragraph 29(5)(a) of the FOI Act provides that an agency must take into account whether payment
of a charge, or part of it, would cause financial hardship to an applicant.
Paragraph 4.103 of the Guidelines provides:
‘An applicant relying on this ground could ordinarily be expected to provide some evidence
of financial hardship. For example, the applicant may rely upon (and provide evidence of)
receipt of a pension or income support payment; or provide evidence of income, debts or
assets…’
You have not provided any evidence to show that payment of the preliminary charge would cause
you financial hardship, and I have decided not to reduce the preliminary charge on this basis.
The public interest
Paragraph 29(5)(b) of the FOI Act provides that an agency must also take into account whether the
provision of access to the requested documents is either in the general public interest, or in the
interest of a substantial section of the public. In other words, there must be a benefit flowing
generally to the public or a substantial section of the public from disclosure of the documents in
question. This requires me to consider the nature of the documents and the context of their release.
In
MacTiernan and Secretary, Department of Infrastructure and Regional Development [2015] AATA
584, the Administrative Appeals Tribunal found that where release is in the general public interest,
or in the interest of at least a substantial section of the public, charges ought to be waived.
Conversely, this decision also supports the view that where there is little public interest in the
release of information that is within scope, then it is appropriate for the charges to be affirmed.
Paragraphs 4.107 and 4.108 of the Guidelines relevantly provide:
‘An applicant relying on s 29(5)(b) should identify or specify the ‘general public interest’ or
the ‘substantial section of the public’ that would benefit from this disclosure (s 29(1)(f)(ii)).
This may require consideration both of the content of the documents requested and the
context in which their public release would occur. Matters to be considered include whether
the information in the documents is already publicly available, the nature and currency of the
topic of public interest to which the documents relate, and the way in which a public benefit
may flow from the release of the documents
.
… [T]he applicant may be expected to draw a link between being granted access to the
documents and a derivative benefit to either the general public interest or a substantial
section of the public.’
I also refer to paragraph 4.105 of the Guidelines which provides:
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PO Box 7820 Canberra BC ACT 2610
This test is different to, and can be distinguished from public interest considerations that may
arise under other provisions of the FOI Act.
Consideration of the public interest
I have considered the news articles referred to in your reconsideration request.
I have also considered the general public interest in the use of labour hire, consultants and
contractors in the public sector. I have found that interest is generally focussed on public service
expenditure in this area, rather than specific numbers of contractors employed in the public sector.
For example, I direct you to the following articles:
https://www.afr.com/policy/economy/public-sector-work-pays-for-deloitte-ey-kpmg-and-pwc-
20200615-p552m7
https://www.canberratimes.com.au/story/6547829/consultants-clean-up-as-aps-stagnates/
https://www.canberratimes.com.au/story/6416045/timely-cost-effective-services-australia-
defends-increasing-use-of-contractors/
Services Australia reports on its expenditure on contractors and consultants in its annual report.
This report is publicly available and can be accessed on Services Australia’s website. Specifically, I
draw your attention to pages 248, 291 and 292 of the most recent 2018-19 report which can be
accessed via the following link:
https://www.servicesaustralia.gov.au/organisations/about-us/annual-reports/annual-report-
2018-19
I also note that the work of consultants and the contract management practices of Services
Australia are already scrutinised in a number of public forums, including parliamentary committees
and the media.
In light of the above, most interest is focussed on public expenditure. This information is already
publicly available and I do not consider that releasing the document would otherwise assist the
public debate on this topic.
Nonetheless, I accept that in the current economic climate where there is an increased rate of
unemployment in the Australian economy, there is a general public interest in the number of
individuals being employed through the public service.
As such, I have decided that a 20% reduction in the charge is appropriate. This would reduce the
preliminary charge to $60.00 (
revised charge).
Conclusion
I consider that the search and retrieval time as well as the decision making time set out in the
preliminary charge accurately reflects the lowest reasonable cost for the time that it will take
Services Australia to process your request.
I am not satisfied that the charge should be reduced or waived on the grounds of financial hardship.
However, I am satisfied that the release of the document would be in the general public interest,
and that a 20% reduction to the preliminary charge on this ground is appropriate.
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PO Box 7820 Canberra BC ACT 2610
I have therefore decided that the reduced charge is reasonable to provide you with a decision on
access to the document.
Required action
If you would like Services Australia to continue processing your FOI request, please notify Services
Australia in writing within 30 days of receiving this letter that you:
a) agree to pay the charge (deposit or in full); or
b) seek review of the revised charge, being
i.
internal review; or
ii.
external review.
Alternatively, you may wish to withdraw your request for access to documents. If you wish to
withdraw your request, please do so in writing to
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx. If we do not hear from you within 30 days we will take your request to be withdrawn.
Further information on options a) and b) is provided below.
Please note that the payment of a charge does not guarantee access to documents, in full or in part.
Option a) - pay the charge
As the revised charge exceeds $25.00 but does not exceed $100.00, you are required to pay the
charge in full, or a deposit of $20.00 within 30 days of receiving this notice. You may select from
one of the following payment methods:
1. Online payment via Government EasyPay – please go to
https://www.ippayments.com.au/
access/index.aspx?a=85987733&dl=legalservices_hpp_purchase and enter the relevant
details. You will need your FOI LEX reference number,
LEX 56248; or
2. Cheque made out to the Collector of Public Monies and posted to Freedom of Information,
Services Australia, PO BOX 7820, Canberra BC, ACT 2610; or
3. Money order made out to the Collector of Public Monies and posted to Freedom of
Information, Services Australia, PO BOX 7820, Canberra BC, ACT 2610.
If you elect to pay the charge, please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx to advise
us of your payment. Please quote reference number
LEX 56248 in this correspondence.
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PO Box 7820 Canberra BC ACT 2610
Option b) – seek review
If you disagree with the decision to impose a charge, or the amount of the charge, you can ask for a
review. There are two ways you can do this. You can ask for an internal review from within Services
Australia, or an external review by the Office of the Australian Information Commissioner. You do
not have to pay for reviews of decisions. See
Attachment A for more information about for to
arrange a review.
Time limits for processing your request
Section 31 of the FOI Act provides that where a notice is sent to an applicant regarding the payment
of a charge in respect of a request, the time limit for processing the request is suspended from the
date the notice is received until either:
a) the day following payment of the charge (in full or the required deposit); or:
b) if applicable, the day following the notification to the applicant of a decision not to
impose the charge.
Address for correspondence
Please send all correspondence regarding your FOI request to the following address:
Freedom of Information
Services Australia
PO Box 7820
CANBERRA ACT 2610
Or by email to
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx. Further assistance
If you have any FOI questions please email
xxx.xxxxx.xxxx@xxxxxxxxxxxxxxxxx.xxx.xx. Yours sincerely
Samantha
Authorised FOI Decision Maker
Freedom of Information Team
Employment Law and FOI Branch Legal Services Division
Services Australia
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PO Box 7820 Canberra BC ACT 2610
Attachment A
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Asking for a full explanation of a Freedom of Information decision
Before you ask for a formal review of a freedom of information decision, you can contact us to
discuss your request. We will explain the decision to you. This gives you a chance to correct
misunderstandings.
Asking for a formal review of an Freedom of Information decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (FOI Act) gives you
the right to apply for a review of the decision. Under sections 54 and 54L of the FOI Act, you can
apply for a review of an FOI decision by:
1. an Internal Review Officer in Services Australia; and/or
2. the Australian Information Commissioner.
Note 1: There are no fees for these reviews.
Applying for an internal review by an Internal Review Officer
If you apply for internal review, a different decision maker to the Services Australia delegate who
made the original decision will carry out the review. The Internal Review Officer will consider all
aspects of the original decision and decide whether it should change. An application for internal
review must be:
made in writing;
made within 30 days of receiving the decision; and
sent to the address for correspondence set out above (or be delivered to any Centrelink service
centre).
Note 2: You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons for
disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original decision or the internal review decision, you can ask the
Australian Information Commissioner to review the decision.
If you do not receive a decision from an Internal Review Officer in Services Australia within 30 days
of applying, you can ask the Australian Information Commissioner for a review of the original FOI
decision.
You will have 60 days to apply in writing for a review by the Australian Information Commissioner.
You can
lodge your application:
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PO Box 7820 Canberra BC ACT 2610
Online:
www.oaic.gov.au
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
Note 3: The Office of the Australian Information Commissioner generally prefers FOI applicants to
seek internal review before applying for external review by the Australian Information
Commissioner.
Important:
If you are applying online, the application form the 'Merits Review Form' is available at
www.oaic.gov.au.
If you have one, you should include with your application a copy of Services Australia’s
decision on your FOI request
Include your contact details
Set out your reasons for objecting to Services Australia's decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman
Information Commissioner
You may complain to the Information Commissioner concerning action taken by an agency in the
exercise of powers or the performance of functions under the FOI Act, There is no fee for making a
complaint. A complaint to the Information Commissioner must be made in writing. The Information
Commissioner's contact details are:
Telephone: 1300 363 992
Website:
www.oaic.gov.au Commonwealth Ombudsman
You may also complain to the Ombudsman concerning action taken by an agency in the exercise of
powers or the performance of functions under the FOI Act. There is no fee for making a complaint. A
complaint to the Ombudsman may be made in person, by telephone or in writing. The
Ombudsman's contact details are:
Phone: 1300 362 072
Website:
www.ombudsman.gov.au
The Commonwealth Ombudsman generally prefers applicants to seek review before complaining
about a decision.
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