ONE NATIONAL CIRCUIT
BARTON
FOI
FOI/2020/286
FREEDOM OF INFORMATION ACT 1982
REQUEST BY:
Trav S
DECISION BY: Mr Peter Rush
Assistant Secretary
Parliamentary and Government Branch
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Trav S
I refer to your email of 18 December 2020, made to the Department of the Prime Minister and
Cabinet (the
Department) under the
Freedom of Information Act 1982 (the
FOI Act), in the
following terms:
Administrative decisions often include the exercise of discretion. By this I mean
decisions in which a government decision maker has the power to make a choice
about whether to act or not act, to approve or not approve, or to approve with
conditions. In these cases the decision maker’s role is to make a judgment taking into
account all relevant information.
We would like to ask for a copy of the polices and guidelines currently in place to
guide PM&C staffs discretionary decision making.
On 12 January 2021, the Department wrote to you to seek clarification of your request as
follows:
Section 15 of the Freedom of Information Act 1982 (the FOI Act) requires that a
request for access to documents under the FOI Act must, among other requirements,
provide such information as is reasonably necessary to enable the agency to identify
the document being sought.
Your request does not provide such information as is reasonably necessary to enable
the Department to identify the document you are seeking.
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
To enable the Department to identify the document(s) you are seeking, please specify
the subject matter of the administrative decision(s) in respect of which you are seeking
'policies and guidelines currently in place to guide PM&C staffs discretionary
decision making'.
On 12 January 2021, you responded as follows:
Thank you for replying, to clarify.
Please regard the 1999 Humanitarian Overseas Service Medal Regulations. Section 4
Eligible service, paragraph (3) states:
"a declaration ... MAY also specify, in relation to the declared operation, conditions
about ineligibility for an award of the medal".
Please regard the Acts Interpretation Act 1901. The preliminary states "This Act is
like a dictionary and manual to use when reading and interpreting Commonwealth
Acts and instruments made under Commonwealth Acts."
Part 7, Section 33 'Exercise of powers, functions and duties'. Paragraph (2A)
prescribes that:
"Where an Act ... provides that a person MAY do a particular act or thing, and the
word MAY is used, the act or thing may be done at the discretion of the person".
The HOSM regulations delegate two powers to the Assistant Secretary, Awards and
Culture Branch. The power to 1) treat a period of service as eligible service, and 2)
recommend the award of the medal.
The Regulations governing the medal do not prohibit the medal being awarded to
commercial contractors. The Assistant Secretary confirms this and advised
government that the regulations:
"allow virtually any class of persons to be determined an eligible group".
Regarding a case in which the medal was awarded to commercial contractors
engaged to provide essential services to a humanitarian operation, the Branch
advised:
"the case establishes a precedent for extending eligibility to commercial contractors in
cases in which the contractors are engaged in Australian humanitarian operations".
Additionally to this precedent, the Foreign Minister advised PM&C that:
"there are precedents to open eligibility of the HOSM to commercial entities where
these services are essential to the Government's work."
To clarify our request.
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1. We seek a copy of the policy, procedures or rules guiding or related to the
discretionary decision prescribed in HOSM Regulations (1999) Section 4, paragraph
(3).
On 13 January 2021, you wrote to the Department as follows:
We would be grateful if you can accept this amendment to include the following in our
FOI request.
Commonwealth Departments and agencies normally have policies and guidelines to
assist and provide guidance to decision makers making discretionary decision.
Can we request a copy of PM&C's policies, rules and guidelines guiding discretionary
decision making.
On 15 January 2021, the Department wrote to you to seek further clarification as follows:
Thank you for your email of Wednesday, 13 January 2021, in response to the
Department’s email of Tuesday, 12 January 2021 in which we sought clarification of
your FOI request.
We note that you responded to Department’s email of 12 January 2021 on the same
day with a different clarification (see attached email).
We note that the documents you have requested in your email of 13 January 2021 (‘a
copy of PM&C's policies, rules and guidelines guiding discretionary decision
making’) appear to be substantially identical to the documents you requested in your
email of 18 December 2020 (‘a copy of the polices and guidelines currently in place to
guide PM&C staffs discretionary decision making’) and in respect of which we sought
clarification.
We would be grateful if you could clarify whether we are to take your email of 12
January 2021 (attached) or your email of 13 January 2021 (below) as the clarification
of your FOI request.
On 15 January 2021, you responded as follows:
Thank you, to clarify.
We seek a copy of the policy/guidelines that relate to informing the discretionary
decision prescribed by HOSM Regulation (1999) Section 4, paragraph (3).
If PM&C has more general policy/guidelines guiding discretionary decisions we
would also ask for a copy of/or reference to those documents.
On 27 January 2021, the Department wrote to you to seek further clarification as follows:
Thank you for your below email, received by the Department of the Prime Minister
and Cabinet (the Department) on 15 January 2021 in which you advised that:
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We seek a copy of the policy/guidelines that relate to informing the
discretionary decision prescribed by HOSM Regulation (1999) Section 4,
paragraph (3).
If PM&C has more general policy/guidelines guiding discretionary decisions
we would also ask for a copy of/or reference to those documents.
We request your clarification on whether you are only seeking part 1, namely a copy
of the policy/guidelines that relate to informing the discretionary decision prescribed
by HOSM Regulation (1999) Section 4, paragraph (3).
Otherwise, if you are also seeking part 2, namely more general policy/guidelines
guiding discretionary decisions, your request remains unclear (we note that it is
drafted in similar terms as per your original scope dated 18 December 2020, and
which was the subject of our previous request for clarification).
Processing of your request will commence once it meets the requirements of section
15 of the FOI Act.
On 27 January 2021, you responded as follows:
I am sorry for the confusion, please just go with Part 1.
On 29 January 2021, the Department confirmed that the terms of your clarified request were
as follows:
We seek a copy of the policy/guidelines that relate to informing the discretionary
decision prescribed by HOSM Regulation (1999) Section 4, paragraph (3).
Authorised decision-maker
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the Act.
Decision
I have decided to refuse your request under section 24A(1)(b)(ii) of the FOI Act.
In making this decision, I have had regard to the following material:
• the terms of your request;
• searches undertaken by the Department regarding your request;
• the FOI Act; and
• the ‘Guidelines issued by the Australian Information Commissioner under section 93A
of the
Freedom of Information Act 1982’.
Reasons
Section 24A(1) of the FOI Act provides that:
An agency or Minister may refuse a request for access to a document if:
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(a) all reasonable steps have been taken to find the document;
and
(b) the agency or Minister is satisfied that the document:
(i)
is in the agency’s or Minister’s possession but cannot be found; or
(ii)
does not exist.
Having regard to the terms of your request, searches for documents were undertaken by the
business area in the Department with responsibility for the subject matter of the FOI request.
Those searches did not locate any documents meeting the terms of the request.
I am satisfied that all reasonable steps have been taken to find documents meeting the terms
of your request and I am satisfied that no documents meeting the terms of your request exist
in the Department’s possession.
I have therefore decided to refuse your request under section 24A(1)(b)(ii) of the FOI Act.
Processing and access charges
I have decided not to impose charges in respect of your request.
Review rights
Information about your rights of review under the FOI Act is available at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/.
Complaint rights
You may make a complaint to the Information Commissioner about the Department’s actions
in relation to a request. Making a complaint about the way the Department has handled an
FOI request is a separate process to seeking review of the Department’s decision. Further
information about how to make a complaint is available at
https://www.oaic.gov.au/freedom-
of-information/reviews-and-complaints/. Yours sincerely
Peter Rush
Assistant Secretary
Parliamentary and Government Branch
26 February 2021
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Document Outline
