Our ref:
FOI22/019; CM22/1874
8 March 2022
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Stoyan
Freedom of Information Request FOI22/019 – Decision letter
The purpose of this letter is to give you a decision about your request for access to documents under the
Freedom of Information Act 1982 (the FOI Act) which you submitted to the Attorney-General's Department
(the department).
Your request
On 6 February 2022, you requested access to:
a) the APS role evaluation summary record (i.e. the completed record of the template set out on
pages 3 – 5 of the “Australian Public Service Role evaluation tool” – see
https://www.apsc.gov.au/working-aps/aps-employees-and-managers/classifications/aps-role-
evaluation-guidance-and-tool) for the EL1 position that the AGD employee making $145,000 was
engaged to fil ; and
b) the APS role evaluation summary record (i.e. the completed record of the template set out on
pages 3 – 5 of the “Australian Public Service Role evaluation tool” – see
https://www.apsc.gov.au/working-aps/aps-employees-and-managers/classifications/aps-role-
evaluation-guidance-and-tool) for the EL2 position that the AGD employee making $203,408 was
engaged to fil ; and
c) other pertinent documents, such as position descriptions, setting out the scope of the EL1 and EL2
roles for which the relevant AGD employees are paid $145,000 and $203,408 respectively; and
d) vacancy notices published in the Public Service Gazette for the EL1 and EL2 positions for which
the relevant AGD employees are paid $145,000 and $203,408 respectively; and
e) if, and only if, the role evaluation summary records referred to in a) and b) have not been
maintained, any and all documents setting out the research (e.g. interviews with other staff,
analysis of similar roles in other agencies, analysis of going market rates in relation to the work to
be performed etc.) undertaken by appropriate staff members in the AGD to determine the proper
scope of the relevant EL1 and EL2 positions; and
f) a written record of any individual flexibility arrangement entered into between the EL1 non-AGS
AGD employee and the Secretary of the AGD (or an approved delegate); and
g) a written record of any individual flexibility arrangement entered into between the EL2 non-AGS
AGD employee and the Secretary of the AGD (or an approved delegate); and h)in respect of f) and g)
above, any documents recording how the arrangements meet the genuine needs of the AGD and
the relevant employees in relation to i) arrangements about when the work is performed, ii)
overtime rates, ii ) penalty rates), iv) allowances, v) employer superannuation contributions, vi)
remuneration and/or vi ) leave entitlements.
In relation to f) and g), you are welcome to redact the names, residential addresses, and email
addresses of the relevant employees. Otherwise, I do not, at least pre-emptively, agree to
redactions other than what is permitted by, and necessary according to, the law.
On 10 February 2022, the department acknowledged your request.
On 21 February 2022, the department wrote to you to clarify the scope of your request. The department
sought to confine parts (e), (f) and (g) of your request to the salaries of $145,000 and $203,408
respectively.
On 22 February 2022, you advised the following:
I confirm that my intention was that the scope of the request for parts (e), (f) and (g) are limited to
the $145,000 EL1 position and the $203,408 EL2 position.
A decision in relation to your request is due on 8 March 2022.
My decision
I am an officer authorised under section 23(1) of the FOI Act to make decisions in relation to freedom of
information requests made to the department.
I have identified three documents that fal within the scope of your request. I did this by making inquiries of
staff likely to be able to identify relevant documents and arranging for comprehensive searches of relevant
departmental electronic and hard copy holdings.
In making my decision regarding access to the relevant documents, I have taken the following material into
account:
• the terms of your request,
• the content of the documents identified as within scope of your request,
• the provisions of the FOI Act, and
• the Guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act
(the Guidelines).
I have decided to refuse access in full to three documents on the basis that the material they contain is
exempt pursuant to sections 47E(c) and 47F.
Additional information
Parts (a), (b) and (c) of your request, seeking the APS role evaluation summary records and other pertinent
documents do not exist within the department’s record holdings. With regard to Part (d) the Executive
Level 1 and Executive Level 2 positions were not advertised, therefore no vacancy notices were published in
the Public Service Gazette.
Your review rights under the FOI Act are set out at
Attachment A to this letter.
The schedule of documents at
Attachment B sets out brief information about each document within the
scope of your request and my decision in relation to access to each of those documents.
The statement of reasons at
Attachment C sets out the reasons for my decision to refuse access to certain
material to which you have requested access.
Freedom of Information request FOI22/019 – Decision letter Page 2 of 3
Additional information regarding the department’s Executive Level 2 and Executive Level 1 employee
positions and salaries are at
Attachment D.
Questions about this decision
If you wish to discuss this decision, the FOI case officer for this matter is Claire, who can be reached on
(02) 6141 6666 or by email to xxx@xx.xxx.xx.
Yours sincerely
Bridie Dawson
Assistant Secretary
Human Resources Branch
Attachments
Attachment A:
Review rights
Attachment B: Schedule of documents
Attachment C: Statement of reasons
Attachment D:
Additional information
Freedom of Information request FOI22/019 – Decision letter Page 3 of 3
Attachment A - FOI Review rights
If you are dissatisfied with the decision of the Attorney-General’s Department (the department), you
may apply for internal review or Information Commissioner review of the decision.
The department encourages applicants to consider seeking internal review as a first step as it may
provide a more rapid resolution of your concerns.
Internal review
Under section 54 of the
Freedom of Information Act 1982 (FOI Act), applications for internal review
must be made in writing within 30 days of the date of the decision letter, and be lodged in one of
the following ways:
email: xxx@xx.xxx.xx
post: Freedom of Information and Privacy Section
Strategy and Governance Branch
Attorney-General’s Department
3-5 National Circuit BARTON ACT 2600
An officer of the department other than the officer who made the original decision will complete the
internal review within 30 days of receipt of your request.
Providing reasons you believe internal review of the decision is necessary will facilitate the
completion of the internal review.
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 the decision 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 Review rights
Page 1 of 1
Attachment C – Statement of reasons – FOI22/019
This document, when read in conjunction with the schedule of documents at
Attachment B,
provides information about the reasons I have decided not to disclose certain material to you in
response to your request for documents under the
Freedom of Information Act 1982 (FOI Act).
Public interest conditional exemptions
An agency or minister can refuse access to a document or part of a document that is conditionally
exempt from disclosure under Division 3 of Part IV of the FOI Act
. Documents for your request which
are conditionally exempt under Division 3 relate to certain operations of agencies (section 47E) and
personal privacy (section 47F).
Brief information about each of the conditional exemptions applied when making a decision about
disclosure of each of the documents to which you have requested access is set out below. Additional
information about each of these conditional exemptions can be obtained from the OAIC
FOI
Guidelines available at: https://www.oaic.gov.au/freedom-of-information/foi-guidelines/part-6-
conditional-exemptions.
Where a document is assessed as conditionally exempt, it is only exempt from disclosure if
disclosure would, on balance, be contrary to the public interest. The public interest test is weighted
in favour of giving access to documents so that the public interest in disclosure remains at the
forefront of decision making.
A single public interest test applies to each of the conditional exemptions. This public interest test
includes certain factors that
must be taken into account where relevant, and other factors which
must not be taken into account. My reasoning in regard to the public interest are set out below.
Section 47E: Public interest conditional exemption—certain operations of agencies
Section 47E of the FOI Act provides that a document is conditionally exempt if its disclosure would,
or could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations
or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or audits conducted
or to be conducted by an agency;
(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.
I have decided to apply section 47E(c) to document 1, 2 and 3. My reasons for applying this
exemption has been set out below.
Freedom of Information request FOI22/019 – Statement of reasons
Page 1 of 3
Section 47E(c)
Section 47E(c) of the FOI Act relevantly provides that a document is conditional y exempt if its
disclosure would, or could reasonably be expected to, have a substantial adverse effect on the
management or assessment of personnel by the Commonwealth or by an agency.
Paragraph 6.114 of the Guidelines provide that for this exemption 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
•
the assessment of personnel - including the broader performance management policies and
activities concerning competency, in-house training requirements appraisals and
underperformance, counsel ing, feedback, assessment for bonus or eligibility for progression
I am satisfied that documents captured by your request predominantly relate to the management of
personnel by the department. In particular, the information concerned discusses in detail the
department’s human resources activities and the management of recruitment and promotion of
certain individuals.
Accordingly, I am satisfied that the relevant material is conditional y exempt under section 47E(c) of
the FOI Act. I have turned my mind to whether disclosure of the information would be contrary to
the public interest and have included my reasoning in this regard below under the header ‘
Section
11A(5): Public interest test’.
Section 47F: Public interest conditional exemption—personal privacy
Section 47F(1) of the FOI Act provides that a document is conditionally exempt if its disclosure would
involve the unreasonable disclosure of personal information about any person (including a deceased
person). For the purposes of the FOI Act, personal information is defined as: information or an
opinion about an identified individual, or an individual who is reasonably identifiable whether the
information or opinion is true or not; and whether the information or opinion is recorded in a
material form or not.
I have identified the following personal information relating to private individuals in the relevant
documents for your request: names; signatures; home addresses; classification levels and salaries.
In deciding whether to conditional y exempt the personal information described above, I have had
regard to the following factors set out in section 47F(2) of the FOI
Act:
(a) the extent to which the information is wel known;
(b) whether the people to whom the information relates are 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 considers relevant.
My reasons for applying the section 47F(1) exemption to each of the categories of personal
information listed above are set out below.
In my view the relevant personal information is not wel known, nor are the persons concerned
general y known to be (or to have been) associated with the particular matters dealt with in the
documents. The information is known only to the persons whose information appears in the
Freedom of Information request FOI22/019 – Statement of reasons
Page 2 of 3
documents and departmental officers with responsibility for the matters concerned. I consider it
likely that the persons concerned would object to disclosure of their personal information and,
noting that the FOI Act does not control or restrict any subsequent use or dissemination of
information disclosed, I consider that disclosure could reasonably be expected to cause distress to
the persons concerned.
For the reasons set out above, I have decided to exempt the personal information of individuals
pursuant to section 47F(1) of the FOI Act. I have turned my mind to whether disclosure of the
information would be contrary to the public interest, and have included my reasoning in this regard
under the header ‘
Section 11A(5): Public interest test’.
Section 11A(5): Public interest test
Access to a conditional y exempt document must general y be given unless doing so would be
contrary to the public interest. The Guidelines issued by the OAIC provide at paragraph 6.5 that the
public interest test is considered to be:
•
something that is of serious concern or benefit to the public, not merely of individual interest,
•
not something of interest to the public, but in the interest of the public,
•
not a static concept, where it lies in a particular matter wil often depend on a balancing of
interests,
•
necessarily broad and non-specific, and
•
related to matters of common concern or relevance to all members of the public, or a
substantial section of the public.
In deciding whether to disclose conditionally exempt material, I have considered the factors
favouring access set out in section 11B(3) of the FOI Act. I have not taken into account the irrelevant
factors listed under section 11B(4) of the FOI Act.
Of the factors favouring disclosure, I consider that release of the conditionally exempt material
identified for your request would promote the objects of the FOI Act, by informing the community of
the Government’s operations.
The FOI Act does not list any specific factors weighing against disclosure. However, I have considered
the non-exhaustive list of factors against disclosure in the Guidelines as well as the particular
circumstances relevant to the conditionally exempt material.
I consider the release of the conditionally exempt material could, as the case may be, reasonably be
expected to prejudice the protection of an individual’s right to privacy, including where the personal
information is that of a government employee in relation to personnel management and the
disclosure of the information could be reasonably considered to reveal information about their
private disposition or personal life.
On balance, I consider the factors against disclosure outweigh the factors favouring access and that
providing access to the conditionally exempt material identified for your request would be contrary
to the public interest.
Freedom of Information request FOI22/019 – Statement of reasons
Page 3 of 3
Attachment D – Additional information – FOI22/019 Executive Level 2 Employee
The Office of the Special Investigator (OSI), was established as an Executive Agency within the Home
Affairs portfolio on 4 January 2021 by order made by the Governor-General on 10 December 2020.
At the same time Mr Christopher Moraitis PSM, then Secretary of the Attorney-General’s
Department (AGD), was appointed as Director-General (D-G), OSI with effect from 4 January 2021.
Mr Moraitis, as D-G designate, identified an Australian Public Service (APS) employee role to be filled
immediately upon the creation of the office of the OSI. Mr Moraitis indicated that he considered the
role was at the SES Band 1 classification.
An existing AGD Executive Level 2 employee was identified as suitable for the role.
The person was not ‘engaged’ for the role as described in the FOI application. Because the person
was already an APS employee and was placed on secondment to OSI (as discussed below), the
person’s movement to the role occurred by way of an assignment within AGD to a new Executive
Level 2 position under s25 of the
Public Service Act 1999 (the Act). As the APSC’s Guidance makes
clear, it is not a requirement to conduct an open competitive selection process, nor notify the job in
the Public Service Gazette, where a role is filled in these circumstances. Notably, had the role been
created at the SES level as considered appropriate by the D-G-designate, a competitive process
would also not have been required in those circumstances for the employee’s temporary assignment
to a role at that level.
Principally because there was no existing industrial instrument to provide for the pay and conditions
of employees directly employed by the newly established OSI agency it was decided the employee
should initially perform the OSI role on a secondment basis, rather than a temporary movement
under s26 of the Act.
Under secondment arrangements the seconded employee remains subject to the pay and conditions
applying in the ‘home agency’ (in this case AGD) while performing work in the ‘host agency’ (in this
case OSI). If the role was created at the SES level, the SES role would count against the AGD SES Cap,
rather than OSI’s cap.
Because of existing pressures on the AGD SES Cap, the department was not prepared to have the
employee go on secondment to the OSI as an SES employee. The department agreed that a
secondment could occur at the Executive Level 2 level and that an Individual Flexibility Arrangement
(IFA) could apply to pay additional remuneration at the same rate as would apply to an AGD
Executive Level 2 employee temporarily assigned to perform an SES role (an allowance at the rate of
$55,000pa). Structured this way the secondment would not utilise an AGD SES Cap space.
The employee’s salary level for their Executive Level 2 classification was $148,408pa. This rate is
higher than the maximum rate for an EL2 prescribed in Schedule 1 of the AGD Enterprise Agreement.
This is because it was a maintained salary rate from the employee’s former Executive Level 2 role the
employee had previously held at the Department of Home Affairs (clause 3.14 of the AGD Enterprise
Agreement refers). This salary rate plus the $55,000pa additional IFA remuneration amount brought
the total remuneration figure to $203,408pa.
The employee’s secondment to OSI has now ceased.
Freedom of Information request FOI22/019
Page 1 of 3
Executive Level 1 Employee
With respect to the Executive Level 1 employee with a remuneration level of $145,000pa the
circumstances were that the employee was an Executive Level 1 employee from another APS agency
who was selected for a 12-month temporary movement to AGD for a role at the Executive Level 2
classification.
At the time of the employee’s selection for the AGD role the employee was performing an Executive
Level 2 role on a long-term higher duties basis in their current agency and received a rate of
remuneration (salary plus higher duties allowance) of $145,000pa for the performance of that role.
The manager of the AGD EL2 role for which the employee had been selected requested approval to
maintain the employee’s acting Executive Level 2 remuneration level at the level applying in the
employee’s current agency for their performance in the AGD EL2 role. This was agreed.
The employee’s movement to AGD occurred as a temporary movement under s26 of the Act. The
Classification Rules 2000 relevantly provide:
7 Classification of APS employees: section 26 agreement
(1)
This rule applies to an Agency Head if:
(a) an ongoing APS employee moves to the Agency Head’s Agency in accordance with
an agreement entered into under section 26 of the Act; and
(b) the agreement applies for:
(i) a specified period, in accordance with the agreement and the
Public Service
Regulations 1999; or
(ii) the duration of a specified task, in accordance with the agreement and those
Regulations.
(2)
The Agency Head must not comply with rule 6.
(3)
The Agency Head must al ocate to the employee:
(a) the approved classification that was allocated to the employee immediately
before moving to the Agency; or
(b) another approved classification that is in the same group as the classification
mentioned in paragraph (a).
(4)
The allocation of a classification in accordance with subrule (3) does not prevent the
employee from:
(a) performing the duties that are to be performed by the employee fol owing the
move to the Agency; and
(b) receiving the pay and other entitlements that are to be paid to the employee
fol owing the move to the Agency.
Rule 7 of the Classification Rules required that the employee be allocated the approved classification
that applied to them at Home Affairs (refer Rule 7(3)(a)). This was the Executive Level 1
classification (refer Rule 6 of the Classification Rules). This is despite the employee performing a role
Freedom of Information request FOI22/019
Page 2 of 3
at the Executive 2 classification for the duration of their temporary movement to AGD (as
contemplated in Rule 7(4)(a) and (b).
Because the employee was recorded in the AGD Human Resource Management System as having
the approved classification of Executive Level 1, the remuneration the employee received for the
duties the employee received for the Executive Level 2 role the employee solely performed at AGD
was recorded against the Executive Level 1 classification in the Annual Report. The Department is
considering whether this is the appropriate way such circumstances should be reflected for future
annual reports.
The employee’s remuneration level for the acting Executive Level 2 role they were performing in
their former agency was $145,000pa. This amount was above the top AGD Executive Level 2 pay
point provided for at Schedule 1 of the AGD Enterprise Agreement ($142,728pa). This necessitated
an IFA to pay additional remuneration to the employee at the rate of $2,272 pa in addition to the
top AGD Executive Level 2 salary rate to match the rate of remuneration applying at the employee’s
former agency. A copy of the IFA has been provided.
Freedom of Information request FOI22/019
Page 3 of 3
