Our Ref LEX302
Justin Warren
Right to Know
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Warren
Your Freedom of Information request - charge decision
I refer to your request, received by the former Department of Education, Skills 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 FOI 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
GPO Box 9828, Canberra ACT 2601 | Phone 1300 488 064 | www.dewr.gov.au | ABN 96 584 957 427
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 ful transfer of your request
pursuant to section 16 of the FOI Act.
My decision
I have been appointed decision-maker on your request and have decided to affirm the
preliminary charge of $370. Please refer to the notice of charge dated 16 June 2022 for
options on how to pay the balance of the charge.
The reasons for my decision, including relevant sections of FOI Act, are set out at
Attachment A.
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 Employment and Workplace Relations
19 July 2022
Attachment A
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):
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.”
What I took into account
In reaching my decision, I took into account:
• your original request dated 28 May 2022
• departmental discussions and correspondence with you
• the documents that fal within the scope of your request
• consultations with departmental officers about the nature of the documents and the
operating environment and functions of the department
• consultation with another Commonwealth Government agency about documents
which contain information concerning it
• the guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines)
• the
Freedom of Information (Charges) Regulations 2019 (FOI Regulations)
• the FOI Act.
GPO Box 9828, Canberra ACT 2601 | Phone 1300 488 064 | www.dewr.gov.au | ABN 96 584 957 427
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided to affirm the charge of $370. My findings of fact and reasons for this decision
are discussed below.
Preliminary assessment of charge
As a preliminary matter, I have reviewed the calculation of the charge.
On 16 June 2022, the former decision-maker at the Department of Education, Skills and
Employment advised you that there were approximately 10 documents relevant to your
request. The preliminary assessment of the charge was calculated as follows:
S earch and retrieval time: 8 hours, at $15.00 per hour
$120
Decision-making time (*after deduction of 5 hours): 12.5 hours, at $20.00 per
hour
$250
TOTAL
$ 370
*The FOI Act provides that the first five hours of decision-making time are free of charge and this is reflected in
the calculation.
Since you were notified of the preliminary estimate of the charge, I have identified a further
seven documents within the scope of your request, bringing the total amount of pages to
266 pages. This material was not originally included in the preliminary estimate provided to
you on 16 June 2022. Given the additional number of documents identified, this increases
the processing charge to $513.
I have considered the actual cost of processing your request, for the purposes of considering
whether to adjust the amount of the charge under regulation 10 of the FOI Regulations. In
light of the additional material identified as being within the scope of your request, I am
satisfied that the actual cost of processing your request is more than the preliminary
estimate of the charge and accordingly, no adjustment is necessary.
Your contentions
On 20 June 2022, you contended that the charge for processing your request under the
FOI Act should be reduced or not imposed on public interest grounds. Specifically, your
correspondence provided that:
“…all charges in relation to this request be waived on public interest grounds.
The scope and scale of employment support services affects a large proportion of the
Australian populace at any one time. The efficient and effective use of public
resources to provide employment support services is a matter that should be open to
public scrutiny, discussion, comment, and review…. The program wil also affect a
substantial section of the public, and it is therefore in their interest that they are able
to scrutinise, discuss, comment, and review the business case used to justify the
system that wil directly affect them.”
Financial hardship
Under section 29(5)(a) of the FOI Act, I am required to consider whether payment of the
charge would cause financial hardship to you.
Paragraph 4.101 of the FOI Guidelines relevantly provides:
Financial hardship exists when payment of the debt would leave you unable to provide food,
accommodation, clothing, medical treatment, education or other necessities for yourself and
your family, or other people for whom you are responsible.
The FOI Guidelines further provide that an applicant relying on the grounds of financial
hardship would ordinarily be expected to provide some evidence of financial hardship, such
as receipt of an income support payment or evidence of income, debts or assets. In this
regard, I note that you have provided no such evidence and accordingly, I am not satisfied
that the payment of the charge would cause financial hardship to you.
Public interest
Under section 29(5)(b) of the FOI Act, I am required to consider whether giving access to the
documents would be in the general public interest or the interest of a substantial section of
the public.
Paragraph 4.107 of the FOI Guidelines relevantly provides:
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 the public interest to which the documents relate, and the way in which a public
benefit may flow from the release of the documents.
The FOI Guidelines also provide that there is no presumption that the public interest test is
satisfied by reason only that the applicant is a Member of Parliament, a journalist or a
community or non-profit organisation. Further, the FOI Guidelines provide that it is
necessary to go beyond the status of the applicant and to look at other circumstances.
I have taken into account your submissions in relation to the Points Based Activation System
and your views concerning the relevance of this to the general public interest, or a
substantial section of the public.
I accept that there is a broad public interest in the material within the scope of your request,
including that the documents relate to a decision by the department that has been a topic of
public interest or discussion, and disclosure of the documents would inform the public as to
why or how the decision was made.
Whilst there is a public interest in the release of information within the scope of your
request, I have balanced this against a number of countervailing factors, which are discussed
below.
I note that some of the documents you have requested contain Cabinet-related material,
and I do not consider that the release of such material, at this time, is in the general public
interest, or the interest of a substantial section of the public. I consider that this factor
mitigates against non-imposition of the charge.
I have also had regard to the resource implications for the department in processing your
FOI request. The department was required to undertake extensive searches to locate
documents relevant to your request. In addition, as part of the decision making process, the
department wil be required to examine and consider each page captured by the scope of
your request to make a decision on access, undertake consultation with the Department of
the Prime Minister and Cabinet and departmental officers, and prepare a statement of
reasons for the decision.
On balance, and after taking all of the above into account, I have decided that whilst there is
a broad public interest in the documents, a waiver or reduction of the charge is not
appropriate in this instance, as the preliminary charge of $370 does not include the
additional seven documents that were identified after the charge was notified. Any
reduction in the charge due to the public interest in the documents is mitigated by the
resource implications for the department in making a decision on access in relation to the
additional seven documents (totalling 103 pages).
I have decided that, in this instance, it is appropriate to affirm the charge.
Attachment B
YOUR RIGHTS OF REVIEW
Asking for an explanation of an FOI decision
Before you ask for a formal review of an FOI decision, you can contact us and we will explain
the decision to you.
Asking for a formal review of an FOI decision
If you still believe the 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 all 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:
Post:
Commercial and Information Law Branch
Department of Employment and Workplace Relations
Location Code: C50MA1
GPO BOX 9828
CANBERRA ACT 2601
Email:
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 fol owing 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
