Our Ref LEX 302
Mr Justin Warren
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Warren
Your Freedom of Information request - decision
I refer to your request, received by the former Department of Education, Skil s and
Employment on 28 May 2022, for access under the
Freedom of Information Act 1982 (FOI
Act) to the fol owing documents:
- The business case document(s) (or equivalent) for the Points Based Activation System
(https://www.dese.gov.au/new-employment-services-model/resources/points-based-
activation-system), including any attachments. I request only the final version of the
document(s) that were submitted for approval of the proposal.
- Documents constituting a risk register or equivalent documentation describing the risks
from the proposal, risk ratings, proposed treatments and mitigations, etc. Where multiple
versions of such documents exist (such as drafts) I only request two versions (if they are
different):
1. the version current when the proposal was submitted for approval, and
2. the version current on 27 May 2022 at 9am Australia/Melbourne time.
- Documents, including emails, containing the submission of the proposal for consideration
and approval.
- Meeting minutes or equivalent that document approval of the proposal.
Transfer of request
As advised on 8 July 2022, due to recent machinery of government changes, from 1 July
2022, the former Department of Education, Skil s and Employment became the Department
of Education and a newly created department, the Department of Employment and
Workplace Relations (department) assumed responsibility for the skills and employment
portfolios. As the subject matter of your request is more closely connected with the
department’s functions, the department has accepted a full transfer of your request
pursuant to section 16 of the FOI Act.
GPO Box 9828, Canberra ACT 2601 | Phone 1300 488 064 | www.dewr.gov.au | ABN 96 584 957 427
My decision
The department holds 17 documents that fall within the scope of your FOI request.
I have decided to:
• grant you
access in ful to three documents (documents 1-3);
• grant you
access in part to seven documents (documents 4 and 12-17) with some of
the content removed; and
•
refuse access in full to seven documents (documents 5-11).
I have decided that certain documents or parts of documents that you have requested are
exempt under the FOI Act because they contain:
• Cabinet-related material (paragraphs 34(1)(a), 34(1)(d) and subsection 34(2));
• material which is subject to legal professional privilege (section 42 exemption);
• deliberative matter, the disclosure of which would be unreasonable and contrary to
the public interest (section 47C conditional exemption); and
• material which, if released, would or could reasonably be expected to, have a
substantial adverse effect on the operations of the department (subsection 47E(d)
conditional exemption).
A schedule of the documents and the reasons for my decision are set out at
Attachment A.
Charge
On 16 June 2022, you were informed of the preliminary assessment of the charge payable to
process your request in the amount of $370.00. On 1 July 2022, the department received
payment of a deposit of $92.50.
I have assessed the charge under regulation 10 of the
Freedom of Information (Charges)
Regulations 2019 and the cost of processing your request exceeded the amount estimated.
Accordingly, I have fixed the charge under this provision.
How we wil send your documents
Documents 1-3 are
attached.
We will send you documents 4 and 12-17 once you have paid us $277.50, which is the
balance of the outstanding charges for processing your request.
Payment can be made by credit card by completing the attached credit card authorisation
and sending a scanned copy to
xxx@xxxx.xxx.xx.
If you are unable to pay by credit card, please contact us on the above email.
You can ask for a review of my decision
If you disagree with any part of the decision, you can ask for a review. There are two ways
you can do this. You can ask for an internal review by the department or an external review
by the Australian Information Commissioner.
You can find information about your rights of review under the FOI Act, as well as
information about how to make a complaint at
Attachment B.
Further assistance
If you have any questions, please email xxx@xxxx.xxx.xx.
Yours sincerely
Claudia
Authorised decision maker
Department of Education, Skil s and Employment
11 August 2022
Attachment A
SCHEDULE OF DOCUMENTS – Justin Warren – LEX 302
Number
Pages
Date
Description
Decision
Exemption
Comments
1
82
Undated
New Employment Services Model
Grant access in
(Regulation Impact Statement)
full
2
2
3 May 2021 Deputy Secretary Smyth letter to
Grant access in
Executive Director, Office of Best
full
Practice Regulation
3
1
13 June
Office of Best Practice Regulation
Grant access in
2022
letter to Deputy Secretary Smyth
full
4
24
28 June
New Employment Services Trial Risk Grant access in
S 22(1)(a)(ii), 47C, Irrelevant material
2021
Management Plan 2019-2022
part
47E(d)
Deliberative material
Certain operations of agencies
information
5
14
Ministerial submission: The PBAS
Refuse access
S 34(1)(a),
Cabinet related material
and Workforce Specialists on the
34(1)(d), 34(2),
NSEM, correspondence to the Prime
47C
Deliberative matter
Minister and attachments A, B and C
6
24
New Policy Proposal – New
Refuse access
S 34(1)(d), 47C
Cabinet related material
Employment Services Model
Deliberative matter
7
8
20 May 2021 Employment Steering Committee:
Refuse access
S 34(2), 47C
Cabinet related material
Point Based Activation System for
the New Employment Services
Deliberative matter
Model Activation Framework and
Appendices A, B and C.
8
11
24 June
Employment Steering Committee:
Refuse access
S 34(2), 47E(d)
Cabinet related material
2021
Point Based Activation System and
Attachments A and B.
Certain operations of agencies
information
9
13
5 August
Employment Steering Committee:
Refuse access
S 34(2), 47E(d)
Cabinet related material
2021
Point Based Activation System –
Labour Market Credits and
Certain operations of agencies
Appendices A and B.
information
10
37
12 August
Employment Steering Committee:
Refuse access
S 34(2), 42, 47C,
Cabinet related material
2021
Changes to the Job Plan for the New
47E(d)
Legal advice
Employment Services Model (NESM)
Deliberative material
and Attachments A, B, C, D and E.
Certain operations of agencies
information
11
7
19 August
Joint Employment Steering
Refuse access
S 34(2), 47E(d)
Cabinet related material
2021
Committee: Treatment of personal
circumstances in the Points Based
Certain operations of agencies
Activation System and Attachment
information
A.
12
3
4 November Email from FAs to MO – Following
Grant access in
S 42; 47C;
Legal advice
2021
up on PBAS matters
part
47E(d)
Deliberative material
Certain operations of agencies
information
13
4
20 May 2021 Joint Employment Steering
Grant access in
S22(1)(a)(ii),
Irrelevant material
Committee meeting minutes
part
47E(d)
Certain operations of agencies
information
14
7
24 June
Employment Steering Committee
Grant access in
S22(1)(a)(ii),
Irrelevant material
2021
meeting minutes
part
47E(d)
Certain operations of agencies
information
15
4
5 August
Employment Steering Committee
Grant access in
S22(1)(a)(ii),
Irrelevant material
2021
meeting minutes
part
47E(d)
Certain operations of agencies
information
16
4
12 August
Employment Steering Committee
Grant access in
S22(1)(a)(ii),
Irrelevant material
2021
meeting minutes
part
47E(d)
Certain operations of agencies
information
17
4
19 August
Joint Employment Steering
Grant access in
S22(1)(a)(ii),
Irrelevant material
2021
Committee meeting minutes
part
47E(d)
Certain operations of agencies
information
REASONS FOR DECISION
What you requested
- The business case document(s) (or equivalent) for the Points Based Activation System
(https://www.dese.gov.au/new-employment-services-model/resources/points-based-
activation-system), including any attachments. I request only the final version of the
document(s) that were submitted for approval of the proposal.
- Documents constituting a risk register or equivalent documentation describing the risks
from the proposal, risk ratings, proposed treatments and mitigations, etc. Where multiple
versions of such documents exist (such as drafts) I only request two versions (if they are
different):
3. the version current when the proposal was submitted for approval, and 2. the version
current on 27 May 2022 at 9am Australia/Melbourne time.
- Documents, including emails, containing the submission of the proposal for consideration
and approval.
- Meeting minutes or equivalent that document approval of the proposal.
On 10 June 2022, the former Department of Education, Skil s and Employment
acknowledged receipt of your request and stated that it understood your request to be for:
“The business case document(s) (or equivalent) for the Points Based Activation System
(https://www.dese.gov.au/new-employment-services-model/resources/points-based-
activation-system), including any attachments. I request only the final version of the
document(s) that were submitted for approval of the proposal”.
We have interpreted this as referring to the final version of the documents, including any
attachments, that the department submitted for the final approval of the Points Based
Activation System as part of the New Employment Services Model.
“Documents constituting a risk register or equivalent documentation describing the risks from
the proposal, risk ratings, proposed treatments and mitigations, etc. Where multiple versions
of such documents exist (such as drafts) I only request two versions (if they are different): the
version current when the proposal was submitted for approval, and 2. the version current on
27 May 2022 at 9am Australia/Melbourne time”.
“Documents, including emails, containing the submission of the proposal for consideration
and approval”.
We have interpreted this as referring to documents, including emails, containing the
submission of the final proposal for approval of the Points Based Activation System as part of
the New Employment Services Model.
GPO Box 9828, Canberra ACT 2601 | Phone 1300 488 064 | www.dewr.gov.au | ABN 96 584 957 427
“Meeting minutes or equivalent that document approval of the proposal”.
We have interpreted this as referring to meeting minutes (or equivalent documents) that
document the approval of the department’s final proposal to proceed with the Points Based
Activation System as part of the New Employment Services Model.
On 13 June 2022, in your email response to the former Department of Education, Skills and
Employment, you stated that “the scope you have identified appears to be accurate based
on the information that is publicly available about what the PBAS program is called”.
On 10 June 2022, you were informed that staff names, signatures, position titles,
identification numbers and contact details would be treated as irrelevant in accordance with
section 22 of the FOI Act unless you advised otherwise. On 13 June 2022, you advised that
the scope of your request includes those staff details.
What I took into account
In reaching my decision, I took into account:
• your request dated 28 May 2022
• correspondence with you, including the department’s email correspondence with
you regarding the interpretation of the scope of your request
• the documents that fal within the scope of your request
• the Department of Prime Minister and Cabinet Handbook
• consultation with the Department of Prime Minister and Cabinet on documents
containing Cabinet-related material
• consultations with departmental officers about the nature of the documents and the
operating environment and functions of the department
• the guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines)
• the
Freedom of Information (Charges) Regulations 2019 • the FOI Act
• the general body of law relevant to my decision, including various decisions of
Commissioners of the Office of the Australia Information Commissioner and the
Administrative Appeals Tribunal.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that certain documents and/or parts of documents that you requested are
exempt under the FOI Act. My findings of fact and reasons for deciding that an exemption
applies to those documents are discussed below.
Section 22 of the FOI Act: access to edited copies with irrelevant matter deleted
I have decided that some of the documents fal ing within the scope of your request contain
exempt or irrelevant material. In this regard, section 22 of the FOI Act provides that:
Scope
(1)
This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(i )
that to give access to a document would disclose information that would
reasonably be regarded as irrelevant to the request for access; and
(b)
it is possible for the agency or Minister to prepare a copy (an edited copy) of the
document, modified by deletions, ensuring that:
(i)
access to the edited copy would be required to be given under section
11A (access to documents on request); and
(i )
the edited copy would not disclose any information that would
reasonably be regarded as irrelevant to the request; and
(c)
it is reasonably practicable for the agency or Minister to prepare the edited copy,
having regard to:
(i)
the nature and extent of the modification; and
(i )
the resources available to modify the document; and
(d)
it is not apparent (from the request or from consultation with the applicant) that
the applicant would decline access to the edited copy.
Access to edited copy
(2)
The agency or Minister must:
(a) prepare the edited copy as mentioned in paragraph (1)(b); and
(b) give the applicant access to the edited copy.
In accordance with section 22 of the FOI Act, I have deleted exempt material from the pages
identified in the Schedule of Documents and have decided to release the remaining material
to you.
Section 34 of the FOI Act: Cabinet documents
Section 34 of the FOI Act provides that:
(1) A document is an exempt document if:
(a) both of the fol owing are satisfied:
(i) it has been submitted to the Cabinet for its consideration, or is or was
proposed by a Minister to be so submitted;
(i ) it was brought into existence for the dominant purpose of submission
for consideration by the Cabinet; or
…
(d) it is a draft of a document to which paragraph (a), (b) or (c) applies.
(2) A document is an exempt document to the extent that it is a copy or part of, or contains
an extract from, a document to which subsection (1) applies.
In accordance with paragraph 5.57 of the FOI Guidelines and the Department of Prime
Minister and Cabinet Handbook, I have consulted with the Department of the Prime Minister
and Cabinet on certain material identified as being exempt under section 34 of the FOI Act.
The Department of the Prime Minister and Cabinet has confirmed its support for the
exemption of this material, subject to me, as the FOI decision maker, satisfying myself of
certain matters as outlined in section 34 of the FOI Act.
In this regard, paragraph 5.64 of the FOI Guidelines provides that, to be exempt under
paragraph 34(1)(a) of the FOI Act, a document must have been created for the dominant
purpose of being submitted for Cabinet’s consideration and must have actual y been
submitted or have been proposed by a sponsoring Minister to be submitted. Paragraph 5.67
further provides that whether a document has been prepared for the dominant purpose of
submission to Cabinet is a question of fact. The relevant time for determining the purpose is
the time the document was created.
I have decided that parts of document number five (including attachments) are exempt from
release under paragraph 34(1)(a) of the FOI Act. I have considered the purpose and content
of the material in question and am satisfied that it was submitted to the Cabinet for its
consideration and further, it was created for the dominant purpose of submission for
consideration by the Cabinet. Both the departmental line area and the Department of the
Prime Minister and Cabinet have confirmed that the material in question was submitted to
the Cabinet for its consideration. Accordingly, that material is exempt under paragraph
34(1)(a) of the FOI Act.
I have decided that some material contained in documents five and six is exempt from
release under paragraph 34(1)(d) of the FOI Act, as identified in the Schedule of Documents.
Based on my review of this material, advice provided by departmental officers with
responsibility for matters to which the material relates, as well as advice received from the
Department of the Prime Minister and Cabinet, I am satisfied that the material in question
was proposed to be submitted to the Cabinet for its consideration and was brought into
existence for the dominant purpose of submission for consideration by the Cabinet. As the
documents contain draft material to which paragraph 34(1)(a) applies, I have decided to
refuse access to it pursuant to paragraph 34(1)(d) of the FOI Act.
I have decided that some material contained in documents five and 7-11 is exempt in full
under subsection 34(2) of the FOI Act, as identified in the Schedule of Documents.
The material in question consists of extracts of documents which were submitted to the
Cabinet for its consideration. Based on my review of these documents, advice provided by
departmental officers with responsibility for matters to which the documents relate, as well
as advice received from the Department of the Prime Minister and Cabinet, I have decided
that the material in question is exempt in full pursuant to subsection 34(2) of the FOI Act.
Section 42 – legal professional privilege
Subsection 42(1) of the FOI Act provides that:
A document is an exempt document if it is of such a nature that it would be privileged from
production in legal proceedings on the ground of legal professional privilege.
Paragraph 5.129 of the FOI Guidelines provides that at common law, determining whether a
communication is privileged requires a consideration of:
• whether there is a legal adviser-client relationship;
• whether the communication was for the purpose of giving or receiving legal advice,
or use in connection with actual or anticipated litigation;
• whether the advice given is independent; and
• whether the advice given is confidential.
I have decided that some material contained in documents 10 and 12 is exempt from release
pursuant to subsection 42(1) of the FOI Act. The material consists of legal advice which was
prepared by legal advisers acting in their professional capacity and pursuant to a legal
adviser-client relationship. The legal advice in question was obtained by the department
from an external legal firm for the dominant purpose of giving or receiving independent legal
advice. Furthermore, I am satisfied that the material in question consists of confidential
legal communications which have not been disclosed.
For those reasons, I am satisfied that the relevant material meets the requirements to satisfy
a claim of legal professional privilege and is therefore exempt under subsection 42(1) of the
FOI Act.
Section 47C of the FOI Act – Deliberative matter
Subsection 47C(1) of the FOI Act provides that:
A document is conditional y 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:
(a) an agency…
The FOI Guidelines state at paragraphs 6.52 to 6.88 that the main requirements of this
conditional exemption are that:
• a document contains or relates to ‘deliberative matter’ that was prepared for a
‘deliberative purpose’ (subsection 47C(1));
• a document contains material that is not ‘purely factual’ or non-deliberative
(subsection 47C(2)); and
• it would be ‘contrary to the public interest’ to give access at this time (subsection
11A(5)).
At paragraph 6.66, the FOI Guidelines state that material that is not deliberative matter,
where not already excluded as operational information, purely factual material or a scientific
report would include:
• content that is merely descriptive;
• incidental administrative content;
• procedural or day to day content;
• the decision or conclusion reached at the end of the deliberative process; and
• matter that was not obtained, prepared or recorded in the course of, or for the
purposes of, a deliberative process.
Furthermore, at paragraph 6.73, the FOI Guidelines state that ‘purely factual material’ does
not extend to factual material that is an integral part of the deliberative content and
purpose of a document, or is embedded in or intertwined with the deliberative content such
that it is impractical to excise it.
The material I have identified in the Schedule of Documents as conditional y exempt under
subsection 47C(1) of the FOI Act consists of opinions, advice and/or recommendations
provided in the course of preparing the risk management plan for the New Employment
Services Trial. It includes deliberations and opinions concerning the causes of identified risk
events, opinions or recommendations as to risk ratings and the likelihood of identified risks
eventuating, and certain risk treatments.
I have also identified material in other documents as conditional y exempt under subsection
47C(1) of the FOI Act, as referenced in the Schedule of Documents, which is closely
connected to the Cabinet submission discussed above. This material contains high-level
strategic advice on matters which were intended to be submitted to, and deliberated upon
by the Cabinet. To the extent that there is information contained in the documents which
could be characterised as being purely factual in nature, I consider that such information is
so intertwined with the deliberative material that it cannot reasonably be separated. I also
consider that this information forms an integral part of the deliberative content and purpose
of the documents.
Under subsection 11A(5) of the FOI Act, the department must give you access to this
material unless it would be, on balance, contrary to the public interest to do so. I have
considered the public interest factors below under the heading ‘Public Interest’.
Subsection 47E(d) of the FOI Act – Certain operations of agencies
Section 47E of the FOI Act relevantly provides that:
A document is conditional y exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the fol owing:
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of
an agency.
Paragraph 6.123 of the FOI Guidelines provides that with respect to the conditional
exemption under subsection 47E(d) of the FOI Act, the predicted effect must bear on the
agency’s ‘proper and efficient’ operations, that is, the agency is undertaking its expected
activities in an expected manner.
I have decided to conditional y exempt some material pursuant to subsection 47E(d) of the
FOI Act, including material contained in documents 4 and 8-13 as referred to in the Schedule
of Documents.
I have conditionally exempted certain material under subsection 47E(d) of the FOI Act as it
consists of opinions and/or hypotheses on the likely causes of identified risk events,
judgments concerning the inherent and residual risk ratings, as well as the likelihood of
those risks eventuating. In my view, release of this material could potentially expose certain
vulnerabilities, and compromise the department’s systems and strategies for managing
identified risks, which would have a detrimental effect on the department’s proper and
efficient operations. If released, the material in question could also be reverse engineered
and potential y have an adverse effect on the operations of the department, for example,
through the targeted exploitation of identified vulnerabilities.
I have also decided that the names and contact details of certain departmental employees
are also conditional y exempt under subsection 47E(d) of the FOI Act. I have conditional y
exempted this material as there are established processes in place for members of the public
to contact the department, and these processes and mechanisms are publicly available.
This enables the department to manage the safety of its employees, as well as the volume of
correspondence and communication received by the department. It also ensures that
enquiries are directed to, and handled by, staff with the appropriate experience and
expertise to respond to those enquiries. These methods include dedicated telephone
numbers, email addresses and postal addresses, as well as other online mechanisms.
In my view, the release of this material could reasonably be expected to circumvent the
established methods for contacting the department, al owing members of the public to
contact certain staff directly, thereby causing disruption to the department’s usual
operations. Noting that the FOI Act does not control or restrict any subsequent use or
dissemination of information released, I consider that such disruptions caused by the release
of this information would, or could reasonably be expected to, cause inefficiencies, including
potential work health and safety risks to staff. This could reasonably be expected to have an
adverse effect on the proper and efficient conduct of some of the department’s crucial
functions. For those reasons, I have decided that staff names and contact details are
conditional y exempt under subsection 47E(d) of the FOI Act.
As required by section 11A(5) of the FOI Act, I have considered the public interest below.
Public interest
Section 11A(5) of the FOI Act provides:
The agency or Minister must give the person access to the document if it is conditional y
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.
When weighing the public interest for and against disclosure under section 11A(5) of the FOI
Act, I have taken into account relevant factors in favour of disclosure. In particular, I have
considered the extent to which disclosure would:
• promote the objects of the FOI Act
• inform debate on a matter of public importance being the Points Based Activation
System
• promote effective oversight of public expenditure
• advance the fair treatment of individuals and other entities in accordance with the
law in their dealings with agencies
In relation to the material that is closely connected to the Cabinet submission, I note that in
the Department of Prime Minister and Cabinet Handbook, Cabinet proceedings and
documentation must remain confidential so that Ministers can discuss proposals, options
and views with complete freedom. I have also considered the extent to which disclosure of
the material in question could reasonably be expected to:
• compromise the confidentiality of the Cabinet deliberations and convention of
collective Ministerial responsibility
• undermine the ability of the department allow the exploration and development of
sensitive policy issues for submission to the Cabinet
• inhibit the department’s frankness and candour in providing a full range of strategic
options on policy issues
• prejudice the proper and efficient operations of the department, including by
revealing certain risks and vulnerabilities that could be deliberately exploited, and
bypassing existing mechanisms for contacting the department.
Based on these factors, I have decided that, in this instance, the public interest in disclosing
the information is outweighed by the public interest against disclosure.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI
Act in making this decision.
Conclusion
In summary, I am satisfied that the documents or parts of documents, as set out in the
Schedule of Documents, are conditional y exempt under subsections 47C and 47E(d) of the
FOI Act. Furthermore, I have decided that, on balance, it would be contrary to the public
interest to release that material to you. Accordingly, I have deleted the exempt material and
released the remaining material to you in accordance with section 22 of the FOI Act.
Attachment B
YOUR RIGHTS OF REVIEW
Asking for a formal review of an FOI decision
If you still believe this decision is incorrect, the 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:
• an internal review officer in the department and/or
• the Australian Information Commissioner.
There are no fees for applying for a formal review.
Applying for an internal review by an internal review officer
If you apply for internal review, a different decision maker to the decision maker who made
the original decision will review your request. The internal review decision maker will
consider al aspects of the original decision afresh and decide whether the decision should
change.
An application for internal review must be made in writing within 30 days of receiving this
letter. You can lodge your application by emailin
g xxx@xxxx.xxx.xx
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.
You will have 60 days to apply in writing for a review by the Australian Information
Commissioner.
You can lodge your application 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:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Complaints to the Australian Information Commissioner
Australian Information Commissioner
You may complain to the Australian Information Commissioner about action taken by an
agency in the exercise of powers or the performance of functions under the FOI Act.
A complaint to the Australian Information Commissioner must be made in writing and can be
lodged in one of the following ways:
Online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICCA_1
Email:
xxxxx@xxxx.xxx.xx
Post:
Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
Document Outline
