Australian Securities
and Investments Commission
Office address (inc courier deliveries):
Level 7, 120 Collins Street,
Melbourne VIC 3000
Mail address for Melbourne office:
GPO Box 9827,
Brisbane QLD 4001
24 December 2020
Tel: +61 1300 935 075
Fax: +61 1300 729 000
Phillip Sweeney
www.asic.gov.au
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Sweeney,
Notice of Freedom of Information Decision – Ref 213-2020
I refer to your email received by the Australian Securities and Investments Commission
(
ASIC) on 26 October 2020 in which you sought access to the following under the
Freedom
of Information Act 1982 (Cth) (
FOI Act):
The document I seek is a copy of advice provided to James Shipton on 11 October 2018 that
the full amount for professional advice by KPMG on personal taxation matters for James
Shipton would be paid by ASIC.
The 30-day statutory time period for processing your request commenced on the day after
the day on which your request was received (s 15(5) of the FOI Act). This timeframe was
extended by 30 days in order to consult with an affected party, Mr James Shipton, pursuant
to s 15(6) of the FOI Act. The due date to issue a decision on your request is therefore 25
December 2020. As 25 December 2020 is a public holiday, the due date is extended to 29
December 2020
, being the next day that is not a Saturday, Sunday or a holiday.1
Authority to make decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to FOI
requests. This letter gives notice of my decision.
Decision I have coordinated searches of ASIC’s records and have identified one document falling
within the scope of your request. While there were no relevant documents dated 11 October
2018, I have identified a relevant document dated 10 October 2018 and have proceeded on
the basis that this is the document you are seeking.
The following steps were taken to search for the relevant document:
• Searches were conducted by staff in the Chief Legal Office (CLO); and
• Searches were conducted electronically utilising ASIC’s SharePoint database, and
across ASIC’s systems.
I have decided to refuse access in full to this document, on the grounds that the document is
exempt in full under ss 47C, 47E(c), 47E(d) and 47F of the FOI Act.
Information considered:
1
Acts Interpretation Act 1901 (Cth) s 36(2)
2
In reaching my decision, I have considered the following:
• the FOI Act, in particular ss 47C, 47E(c), 47E(d) and 47F;
• the Australian Information Commissioner’s FOI Guidelines issued under
s 93A of the FOI Act (
FOI Guidelines);
• relevant case law;
• the terms of your request;
• searches conducted by ASIC staff;
• the document within scope; and
• submissions received from Mr Shipton, as an affected third party consulted under s
27A of the FOI Act. Mr Shipton has objected to disclosure of the document. I have
therefore had regard to Mr Shipton’s submissions objecting to disclosure.
Reasons for decision
Section 47C of the FOI Act – deliberative processes
Section 47C of the FOI Act relevantly provides:
(1) A document is conditionally exempt if its disclosure under this Act would disclose matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purposes of, the deliberative processes involved in the functions of an
agency …
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material
The FOI Guidelines provide that ‘“deliberative matter” is a shorthand term for “opinion, advice
and recommendation” and “consultation and deliberation” that is recorded or reflected in a
document.’2 The action of deliberating, in common understanding, involves the weighing up or
evaluation of the competing arguments or considerations that may have a bearing upon one’s
course of action. In short, the deliberative processes involved in the functions of an agency are
its thinking processes – the processes of reflection, for example, upon the wisdom and
expediency of a proposal, a particular decision or a course of action.3
The meanings of the words ‘opinion’, ‘advice’ and ‘recommendation’ all involve consideration,
followed by the formation of a view either about a certain subject or about a course of action
and the subsequent transmission of that view.4 A deliberative process may include the
recording or exchange of interim decisions and drafts.5
I consider that the document within scope contains deliberative matter for the purposes of s
47C. For the reasons below, I consider the document to be conditionally exempt in full under s
47C.
The document contains advice and opinion exchanged between the Chair of ASIC and internal
ASIC staff in relation to the payment of fees for the provision of taxation services to the Chair
2 FOI Guidelines [6.63]
3 FOI Guidelines [6.58] (footnotes omitted)
4
Wood; Secretary, Department of Prime Minister and Cabinet and (Freedom of information) [2015]
AATA 945 [39]
5 FOI Guidelines [6.61]
3
by KPMG. This advice involves the weighing up and evaluation of various considerations going
to the coverage of the costs. This is clearly ‘deliberative matter’ within the meaning of s 47C of
the FOI Act. These deliberations are directed to the provision of human resources advice to
the Chair regarding relocation expenses, and therefore made in the course of ASIC’s
functions.
I note the Treasurer has asked the Treasury to undertake an independent review into the
findings of the ANAO financial statements audit.6 The document within scope is likely to be
relevant to the review currently conducted by Treasury. As such, the document is an important
part of an ongoing deliberation.
I am satisfied that the disclosure of the advice and recommendations in the document would
disclose deliberative matter for the purposes of an ongoing deliberative process, given it is to
be considered by the independent review. The document is therefore conditionally exempt
under s 47C.
Section 47E(c) of the FOI Act – management and assessment of personnel
Section 47E(d) of the FOI Act – certain operations of agencies
For the reasons below, I have also formed the view that the document is conditionally exempt
under ss 47E(c) and 47E(d) of the FOI Act.
Sections 47E(c) and (d) of the FOI Act relevantly provide:
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be
expected to, do any of the following:
…
(c) have a substantial adverse effect on the management or assessment of personnel by
the Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations
of an agency.
The FOI Guidelines relevantly explain:
There must, based on reasonable grounds, be at least a real, significant or material
possibility of prejudice.7 The term ‘substantial adverse effect’ broadly means ‘an adverse effect which
is sufficiently serious or significant to cause concern to a properly concerned reasonable person’.
The word ‘substantial’, taken in the context of substantial loss or damage, has been interpreted as
‘loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal.’8
For the exemption in s 47E(c) to apply, the documents must relate to either:
• the management of personnel – including the broader human resources policies and
activities, recruitment, promotion, compensation, discipline, harassment and
occupational health and safety; or
• the assessment of personnel – including the broader performance management
policies and activities concerning competency, in-house training requirements,
appraisals and under performance, counselling, feedback assessment for bonus or
eligibility for progression.9
6 Treasurer, ‘Australian Securities and Investments Commission’ (Media Release, 23 October 2020)
<https://ministers.treasury.gov.au/ministers/josh-frydenberg-2018/media-releases/australian-
securities-and-investments-commission>
7 FOI Guidelines [5.18]
8 FOI Guidelines [5.20]
9 FOI Guidelines [6.114]
4
As discussed above in relation to s 47C, the document comprises deliberations that are
directed to the provision of human resources advice to the Chair regarding relocation
expenses, and therefore made in the course of ASIC’s human resources policies and activities
regarding recruitment and onboarding of personnel.
The document is marked “Treat as In Confidence: Staff.” Premature disclosure of confidential
advice and deliberations that are not in the public domain could undermine confidence and
inhibit candour in the recruitment process. I am satisfied that the information in the document
was obtained in circumstances where there was an expectation of confidentiality and provided
to a limited audience and for a specific purpose. For these reasons, I am satisfied that
disclosure of the document could reasonably be expected to have a substantial adverse effect
on ASIC’s management of its personnel. I therefore find the document conditionally exempt
under s 47E(c).
In relation to s 47E(d), I note the Treasurer has asked the Treasury to undertake an
independent review into the findings of the ANAO financial statements audit. As noted above
in relation to s 47C, the document is likely to be relevant to the review currently conducted by
Treasury. As such, I consider that disclosure of the document, while the review is ongoing,
would expose matters under deliberation to premature scrutiny which would undermine the
integrity of the decision-making process of government. This could reasonably be expected to
prejudice the effective development of findings, policy options and recommendations in
relation to the review.
Consequently, I consider that disclosure would have a substantial adverse effect on the proper
and efficient conduct of the operations of the review currently being conducted by Treasury. I
therefore find the document conditionally exempt under s 47E(d).
Section 47F of the FOI Act – personal privacy
For the reasons below, I have also formed the view that the document is conditionally exempt
under s 47F of the FOI Act.
Section 47F relevantly provides:
General rule
(1) A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a deceased
person).
(2) In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the
following matters:
(a) the extent to which the information is well known;
(b) 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;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
The term, ‘personal information’, is defined in s 4 of the FOI Act to have the same meaning
as in the
Privacy Act 1988 (Cth) (
Privacy Act). Section 6 of the Privacy Act
defines personal
information as:
information or an opinion about an identified individual, or an individual who is reasonably
identifiable:
5
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
The FOI Guidelines state that key factors for determining whether disclosure of a document
would involve an unreasonable disclosure of personal information include:
• the author of the document is identifiable;
• the documents contain third party personal information;
• release of the documents would cause stress on the third party; and
• no public purpose would be achieved through release.10
As discussed in
‘FG’ and National Archives of Australia [2015] AICmr 26
, other relevant
factors include:
• the nature, age and current relevance of the information;
• any detriment that disclosure may cause to the person to whom the information relates;
• any opposition to disclosure expressed or likely to be held by that person;
• the circumstances of an agency’s collection and use of the information;
• the fact that the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act;
• any submission an FOI applicant chooses to make in support of their application as to their
reasons for seeking access and their intended or likely use or dissemination of the
information, and
• whether disclosure of the information might advance the public interest in government
transparency and integrity.11
I am satisfied that the document contains the personal financial information of Mr Shipton. It is
generally accepted that financial information about an individual is more sensitive than other
kinds of information and should be subject to a higher level of protection.12
Further, Australian Privacy Principle (APP) 6 to the Privacy Act provides that information
collected by an APP entity for a primary purpose must not be disclosed for a secondary
purpose unless the individual consents or a listed exception applies. Disclosure of Mr
Shipton’s personal financial information would be disclosure for a secondary purpose without
his consent, as he has objected to disclosure.
As noted above in relation to s 47E(c), the document is marked “Treat as In Confidence:
Staff.” Plainly, the document contains personal information and was written with an
understanding that it would not be made publicly available.
Having regard to the factors in s 47F(2), the Guidelines and
‘FG’ and National Archives of
Australia [2015] AICmr 26, I am satisfied that it would be unreasonable to disclose this
personal information for the following reasons:
• the personal information is not well known or available from publicly accessible
sources;
• the personal information was collected for the primary purpose of providing the Chair
with relocation support and advice;
• disclosure of the information could reasonably be expected to cause detriment to the
person to whom the information relates;
• Mr Shipton has objected to disclosure;
10 FOI Guidelines [6.142]
11 FOI Guidelines [6.143]
12
'QP' and the Commonwealth Bank of Australia Limited (Privacy) [2019] AICmr 48 [60]
6
• disclosure is unlikely to advance the public interest in government transparency and
integrity; and
• the FOI Act does not control or restrict any subsequent use or dissemination of
information released under the FOI Act.
On balance, I am satisfied that disclosure of Mr Shipton’s personal information would be an
unreasonable disclosure of personal information. The document is therefore conditionally
exempt under s 47F of the FOI Act.
Public Interest Test
Where a document is conditionally exempt, access must be given unless in the
circumstances giving access would, on balance, be contrary to the public interest (s 11A(5)
of the FOI Act). As I have decided that the document is conditionally exempt in full under ss
47C, 47E(c), 47E(d) and 47F of the FOI Act, I am required to consider whether disclosure
would be contrary to the public interest, taking into consideration s 11B of the FOI Act and
part 6 of the FOI Guidelines.
One factor in favour of access is that disclosure could promote the objects of the FOI Act.
The objects of the FOI Act explain that Parliament intends the FOI Act to promote Australia’s
representative democracy,13 and increase recognition that information held by Government
is to be managed for public purposes, and is a national resource.14 Another factor in favour
of access is that disclosure would inform debate on a matter of public importance.15
Section 11A(5) requires a decision maker to undertake a balancing exercise of public
interest factors. The Guidelines also include a non-exhaustive list of factors against
disclosure.16 I consider the relevant factors against disclosure are that disclosure could
reasonably be expected to:
• impede the administration of justice generally,17 by prejudicing and/or prejudging the
conduct of the review;
• prejudice the conduct of reviews by the Treasury;18
• prejudice the effectiveness of an agency’s decision-making and deliberative
processes,19 by harming the development of sound decision-making;
• prejudice the management function of an agency;20
• prejudice the protection of an individual’s right to privacy; 21 and
• harm the interests of an individual.22
The FOI Guidelines state that, while frankness and candour claims may still be contemplated
when considering deliberative material and weighing the public interest, they should be
approached cautiously.23 Generally, the circumstances will be special and specific. That is, a
13
Freedom of Information Act 1982 (Cth) (FOI Act) s 3(2)
14 FOI Act s 3(3)
15 FOI Act s 11B(3)(b)
16 FOI Guidelines [6.22]
17 FOI Guidelines [6.22(d)]
18 FOI Guidelines [6.22(l)]
19 See
‘BJ’ and Australian Taxation Office [2014] AICmr 22 [24],
Parker and Australian Securities and
Investments Commission [2016] AATA 767 [56] and
Baker and Australian Securities and Investments
Commission [2019] AATA 4898 [30].
20 FOI Guidelines [6.22(n)]
21 FOI Guidelines [6.22(a)]
22 FOI Guidelines [6.22(k)]
23 FOI Guidelines [6.85]
7
confidentiality or candour claim carries no weight by itself but must be related to some
particular practice, process, policy or program in government.24
I am satisfied that frankness and candour is a relevant consideration in this case, in
combination with my view that disclosure could reasonably be expected to prejudice the
conduct of the current review, prejudice the management function of an agency, prejudice
the protection of an individual’s right to privacy and harm the interests of an individual.
Disclosure could reasonably be expected to prejudice both the deliberative processes
themselves and potentially also future deliberations.
Based on these factors, I have decided that the public interest is weighted more heavily
against disclosure and that giving access to the conditionally exempt material would, on
balance, be contrary to the public interest.
Your review rights
If you are dissatisfied with my decision, you may apply for internal review or Information
Commissioner review of the decision.
Internal review
Under section 54 of the FOI Act, you may apply in writing to ASIC for an internal review of my
decision by another ASIC officer. The internal review application must be made within 30 days
of the date of this letter. This request should be addressed to the Senior Manager, Freedom
of Information, by email t
o xxxxxxxxxx@xxxx.xxx.xx Information Commissioner review Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner
to review my decision. An application for review by the 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:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_10
email:
xxxxx@xxxx.xxx.xx post: GPO Box 5218 Sydney NSW 2001
More information about Information Commissioner review is available on the Office of the
Australian Information Commissioner website. Go to
https://www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/information-commissioner-review/.
FOI Complaints
You may lodge a complaint with the Australian Information Commissioner in relation to the
conduct of ASIC in the handling of this request. A complaint to the Information
Commissioner must be made in writing. Complaints can be lodged in one of the following
ways:
24 FOI Guidelines [6.81]
8
online
:https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICCA_1
email:
xxxxx@xxxx.xxx.xx
post: GPO Box 5218 Sydney 2001
More information about complaints is available on the Office of the Australian Information
Commissioner at
https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/make-an-foi-complaint/.
If you are not sure whether to lodge an Information Commissioner review or an Information
Commissioner complaint, the Office of the Australian Information Commissioner has more
information at:
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/
Questions about this decision
If you wish to discuss this decision, I can be contacted by phone or email as below.
Yours sincerely
Haydar Tuncer
Senior Freedom of Information Officer
Australian Securities and Investments Commission
Phone: 03 9280 4416
Email: xxxxxx.xxxxxx@xxxx.xxx.xx