Dr Mark Diamond FOI final decision PDF.PDF.pdf

Date of letter
To/From
Summary of content
or email
2 April 2015
Your  posting  on  the  Right  to  Your FOI request
Know website
10 April 2015
My acknowledgement letter
Acknowledging your FOI request

4.  My decision

I have identified two (2) documents relevant to your request, being (a) the legal advice from
the Australian Government Solicitor to ACARA dated 28 April 2011 and (b) a paper to the
Standing Council for School Education and Early Childhood dated 8 July 2011 titled “ACARA
advice on action to prevent the publication of league tables” (Documents). I have decided to
wholly exempt the Documents from disclosure. My reasons for decision are at Attachment
1 and document details are at Attachment 2.

5.  Decision On Charges

The Freedom of Information (Fees and Charges) Regulations (Regulations) prescribes the
charges that can be levied in respect of a request for access to a document or the provision
of access to a document. These charges are set out in the Regulations and are for search
and retrieval of documents, decision making and provision of access (for example, copying
and postage).

Sub-regulation 3(1) of the Regulations provides an agency with a discretion as to whether it
will impose any charge. In relation to this request, I have decided not to impose a charge.

6.  Internal Review

If you are dissatisfied with this decision, you have certain rights of review available to you.
Under section 54 of the FOI Act, you may apply for an internal review of the decision. You
must apply in writing for an internal review of the decision within 30 days of receiving this
notice. There is no fee to make a request for an internal review.

If you make an application for internal review, it will be conducted by another officer of
ACARA. That person will make a fresh decision on the merits of the case. No particular form
is required to apply for review although it will assist your case to set out in the application the
grounds on which you believe that the original decision should be overturned.

An application for review of the decision should be addressed to Peter Matheson. Peter’s
contact details are set out under heading [9] below.

7.  Review by Information Commissioner

Alternatively you have the option of seeking a review by the Information Commissioner. For
more information, please refer to FOI Fact Sheet 12, authorised by the Office of the
Australian Information Commissioner (http://www.oaic.gov.au/freedom-of-information/foi-
resources/freedom-of-information-fact-sheets/foi-factsheet-12-your-review-rights).

8.  Complaints to the Commonwealth Ombudsman

As a result of recent administrative changes, you may complain only to the Commonwealth
Ombudsman about action taken by ACARA in relation to your request. Details of this change
can be found on the home page of the website for the Commonwealth Ombudsman
(http://www.ombudsman.gov.au/). You can find the contact details for the Commonwealth
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Attachment 1

Summary of reasons for my decision

In summary, the reasons for my decision are:

a.
Sub-section 47B(a) of the FOI Act – The Documents are conditionally exempt under
sub-section 47B(a) of the FOI Act (Commonwealth/State relations). In my view, the
Documents were:

1)
drafted in response to a direction by the Education Council, who was concerned
with media publishing simplistic league tables in March 2011;
2)
used to provide advice to the Education Council (nine Ministers) to inform
ongoing discussions concerning an issue of particular concern; and
3)
created on the understanding that they would not be published.

I find that release of the Documents under FOI would fundamentally:


adversely affect the continued level of trust or co-operation in inter-jurisdictional
relationships; and

adversely affect the administration of multiple continuing Commonwealth–State
projects being managed by ACARA.

b.
Sub-section 47E(d) of the FOI Act – The Documents are also conditionally exempt
under sub-section 47E(d) of the FOI Act (substantial adverse effect on the proper and
efficient conduct of ACARA’s operations). I find that release of the Documents by
ACARA outside the agreed Education Council’s Operating Protocols would reasonably
likely lead to a loss of confidence in ACARA by nine (9) Education Ministers and nine
(9) Heads of Department, which could reasonably be expected to result in ACARA
being significantly impeded in carrying out its statutory functions.

c.
Public interest – There is clearly some public interest in knowing about the
Documents in relation to discussions that were occurring during 2011 in the Education
Council regarding simplistic league tables published by the media. However, in
weighing the public interest, I consider that the continued cooperation and
collaboration of the Commonwealth, States and Territories to further strategic policy in
relation to school education outweighs the public interest in disclosing the Documents.

d.
Section 42 of the FOI Act (legal professional privilege) – I find that the legal advice
from the Australian Government Solicitor to ACARA dated 28 April 2011 (Legal
Advice) is also exempt under section 42 of the FOI Act (legal professional privilege). I
note that, apparently, someone leaked the paper to the Standing Council for School
Education and Early Childhood dated 8 July 2011 titled “ACARA advice on action to
prevent the publication of league tables” (Education Council Paper) to The
Australian, which published an article on 1 August 2011
(http://www.theaustralian.com.au/national-affairs/my-school-site-warned-off-suing-
media/story-fn59niix-1226105578220). The Education Council Paper does not directly
quote from the Legal Advice, and only summarises the conclusions of the Legal
Advice. I find that the unauthorised disclosure of the Education Council Paper did not
amount to ACARA waiving privilege over the Legal Advice nor did it enable the Legal
Advice (as opposed to a summary of a few paragraphs) to come into the public
domain.

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Reasons for my decision

1.
Material taken into account

In making my decision, I have had regard to the following:


the terms of your request;

the documents to which you sought access;

relevant provisions of the FOI Act;

advice from ACARA staff with responsibility for matters relating to the documents to
which you sought access;

the Commissioner’s Guidelines, version 1.3, September 2013, Part 5
http://www.oaic.gov.au/freedom-of-information/applying-the-foi-act/foi-guidelines/part-
5-exemptions; and

the Commissioner’s Guidelines, version 1.2, March 2013, Part 6
http://www.oaic.gov.au/images/documents/freedom-of-information/applying-the-foi-
act/foi-guidelines/part6_conditional_exemptions_v1-2.pdf.

2.
My Decision

I have identified two (2) documents relevant to your request, being (a) the legal advice from
the Australian Government Solicitor to ACARA dated 28 April 2011 and (b) a paper to the
Standing Council for School Education and Early Childhood dated 8 July 2011 titled “ACARA
advice on action to prevent the publication of league tables” (Documents). I have decided to
wholly exempt the Documents from disclosure. My reasons for decision are set out below
and document details are at Attachment 2.

3.
Diamond Decision

I refer to the decision of the Administrative Appeals Tribunal (AAT) in the matter of Mark R
Diamond and Chief Executive Officer of the Australian Curriculum, Assessment and
Reporting Authority [2014] AATA 707 at
http://www.austlii.edu.au/au/cases/cth/aat/2014/707.html (Diamond Decision). In my view,
the Documents concern the same issue as in the Diamond Decision (simplistic league
tables). In this case it is not about the My School database. Instead, it is about a paper (and
the supporting legal advice) that the Education Council directed ACARA to provide to assist
it in determining what action should be taken as a result of media outlets publishing league
tables. However, the fundamental issues concerning the capacity for simplistic league tables
to undermine the work that ACARA and school authorities are trying to achieve, which were
canvassed in the Diamond Decision, also arise in this matter.

In the Diamond Decision, the AAT affirmed the decision of the Freedom of Information
Commissioner to refuse to grant access to the document sought by Dr Diamond in his
request (the My School database), except for the list of schools. The Diamond Decision runs
to 88 pages. It is a unanimous decision of Deputy President S.A. Forgie and Ms S. Taglieri,
Member. It answers the submissions put by Dr Diamond in that case.

In my view, the Diamond Decision provides clear and cogent reasoning. It is an authoritative
decision from the highest merits review body in the Commonwealth system. In making my
decision I have had careful regard to the Diamond Decision.

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4.
ACARA’s position regarding school league tables

The issue of the publication of simplistic league tables is important to us and our
stakeholders, for good reason. Many of those reasons were canvassed in the Diamond
Decision. I have set out my general position in my earlier administrative access decision to
you dated 26 February 2015 and uploaded to the Right to Know website at
(https://www.righttoknow.org.au/request/copyright_in_my_school_website_c#incoming-
3480).

In summary, the former Standing Council on School Education and Early Childhood, now the
Education Council, has expressed its opposition to simplistic school league tables on at least
six (6) different occasions [sub-heading 5.4]. In addition, the Education Council has also
directed ACARA on three (3) occasions to report to it on the work that ACARA is doing to
prevent the publication of school league tables.

Under sub-section 7(1) of the Australian Curriculum, Assessment and Reporting Authority
Act 2008 (ACARA Act), ACARA is required to:

“perform its functions and exercise its powers in accordance with any directions given
to it by the Ministerial Council in writing”.

ACARA’s position, put simply, is that we have no option but to put into place strategies to
minimise the risk that third parties produce league tables, and also to do what is necessary
to prevent the publication of school league tables, in order to comply with previous directions
of the former Standing Council (now Education Council).

5.
Contextual factors

5.1  Who is ACARA

ACARA was established under the ACARA Act. ACARA’s functions under section 6 of the
ACARA Act include, relevantly (and in summarised form):


develop and administer a national school curriculum;

develop and administer national assessments; and

collect, manage and analyse student assessment data and other data relating to
schools and comparative school performance.

The work of ACARA relies on collaboration with a wide range of stakeholders including
Commonwealth, State and Territory governments.

5.2  What is a simplistic league table

As you are aware, a simplistic school league table, in the context of national tests, is a table
in hard copy or online format which ranks or sorts schools simply on the basis of
performance in tests, without taking into account a range of other contextual factors, such as
family background, school location (metropolitan, remote, etc.), and other factors including
statistical uncertainty associated with performance indicators.

5.3  What is the Education Council

The Education Council (formerly the Standing Council on School Education and Early
Childhood) was launched on 1 July 2014 and is one of eight (8) Councils established under
arrangements set by the Council of Australian Governments (COAG). The Education
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Council provides a forum through which strategic policy on early childhood development,
school and university education can be coordinated at the national level, and through which,
information can be shared and resources used collaboratively towards the achievement of
agreed objectives and priorities. For more information, see the Education Council website.

For the purposes of this decision, a reference to the Education Council also includes a
reference to the former Standing Council on School Education and Early Childhood and the
former Ministerial Council for Education, Early Childhood Development and Youth Affairs.

5.4  Education Council says No to simplistic league tables

I advise that the Education Council has said no to simplistic league tables on at least six (6)
separate occasions (see table below).

Item
Date
Document and T
Comments
No.
doc No.
1.
December
Melbourne
Page 17:
2008
Declaration

“In providing information on
(http://scseec.edu.au
schooling, governments will ensure
/site/DefaultSite/files
that school-based information is
ystem/documents/R
published responsibly, so that any
eports%20and%20p
public comparisons of schools will
ublications/Publicati
be fair, contain accurate and verified
ons/National%20goa
data, contextual information and a
ls%20for%20schooli
range of indicators. Governments
ng/National_Declara
will not themselves devise simplistic
tion_on_the_Educati
league tables or rankings and
onal_Goals_for_You
privacy will be protected”.
ng_Australians.pdf)
2.
June 2009
Principles and
Education Council document.
protocols for

reporting on
“governments will not publish simplistic
schooling in
league tables or rankings, and will put in
Australia,
place strategies to manage the risk that

third parties may seek to produce such
(http://scseec.edu.au
tables or rankings”.
/site/DefaultSite/files

ystem/documents/R
eports%20and%20p
ublications/Publicati
ons/Measuring%20a
nd%20reporting%20
student%20performa
nce/Principles%20a
nd%20protocols%20
for%20reporting%20
on%20schooling%2
0in%20Australia.pdf)
3.
15 April
11th MCEECDYA
Ministers reaffirmed:
2011
Meeting, Melbourne,
15 April 2011
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Item
Date
Document and T
Comments
No.
doc No.
“their opposition to simplistic league
tables as counterproductive and harmful
to the educational purpose of schooling”.

4.
8 July 2011
Twelfth MCEECDYA  At page 2:
meeting

communique
“Ministers reiterated their strong

opposition to the publication of league
(http://www.scseec.e
tables arising from My School data and
du.au/site/DefaultSit
discussed with ACARA further actions
e/filesystem/docume
that could be taken against breaches of
nts/Communiques%
the My School terms and conditions of
20and%20Media%2
use”.
0Releases/Previous
%20Council%20info
%20statements/MC
EECDYA%20meetin
g%20info%20statem
ents/C12_Communi
que.pdf)

5.
Feb 2012
ACARA’s data
Endorsed out of session by the
access protocols
Education Council in Feb 2012, Para

36:
(http://www.acara.ed

u.au/verve/_resourc
“Users must act in accordance with the
es/D12_1573__ACA
written agreement which limits use of the
RA_Data_Access_P
data to the purpose stated by the
rotocols_2012.pdf)
applicant, prohibits attempts to identify

information (e.g., names of schools) that
has been de-identified to a necessary
level to prevent identification of an
individual student and the publication of
rankings of schools (simplistic league
tables)”.

6.
20 April
SCSEEC Meeting
At the Education Council meeting on
2012
20th April 2012
Friday 20 April 2012, the Education
(not in communique)  Council:
“Affirms its opposition to the publication of
simplistic league tables as
counterproductive and harmful to the
educational purpose of schooling”.

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5.5  2011 My School release

In March 2011, the following occurred:

March 2011
ACARA published 2010 school data including aggregated school level
NAPLAN results on My School (version 2.0)
(http://www.myschool.edu.au/)
March 2011
Media published tables of school comparisons (simplistic league tables)
based on 2010 NAPLAN data published on My School

5.6  April 2011 direction provided by the Education Council to ACARA

On 15 April 2011 the Education Council met in Melbourne. This meeting followed the media
publication of league tables in March 2011. At the 15 April 2011 Education Council meeting,
the Education Council:

“Requested that ACARA as a matter of urgency provide Ministers by the end of April
2011 with advice on the effectiveness of the protection measures against the
construction of league tables contained in My School 2.0; and

Asked that ACARA outline for Ministers by the end of April 2011 what action it intends
to take in relation to breaches of the My School website’s terms and conditions”.

I have taken this quote from the affidavit of Robert William Randall, Chief Executive Officer,
ACARA, dated 4 November 2013, at para 24. Mr Randall was a witness before the AAT in
the Diamond Decision.

Under sub-section 7(1) of the ACARA Act, ACARA is required to:

“perform its functions and exercise its powers in accordance with any directions given
to it by the Ministerial Council in writing”.

5.7  Requested Documents

The Documents were created in response to a written direction from the Education Council
to ACARA as a result of media publication of simplistic league tables. In order to inform the
paper to the Education Council, legal advice was obtained from the Australian Government
Solicitor. The legal advice is dated 28 April 2011, which is after the relevant Education
Council meeting held on 15 April 2011. I find that the advice was commissioned by ACARA
to inform its advice to the Education Council.

6.
Sub-section 47B(a) – Commonwealth/State relations

6.1  Section 47B(a) of the FOI Act

Sub-section 47B(a) of the FOI Act states “a document is conditionally exempt if disclosure of
the document under this Act would, or could reasonably be expected to, cause damage to
relations between the Commonwealth and a State”.

The Commissioner’s Guidelines Part 6 at paragraph [6.38] states:

“A decision maker may consider that disclosure would, or could reasonably be expected to
damage the working relations of the Commonwealth and one or more States (s 47B(a)) (my
emphasis). ‘Working relations’ encompass all interactions of the Commonwealth and the
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States1 from formal Commonwealth-State consultation processes such as the Council of
Australian Governments through to any working arrangements between agencies undertaken
as part of their day to day functions”.

6.2  Diamond Decision

In the Diamond Decision, the AAT found, relevantly, that:

a.
“…there is no requirement that disclosure would, or could reasonably be expected to
cause damage to relations between the Commonwealth and all of the States; one
State is sufficient”: para 106.
b.
The Commonwealth, NSW and South Australia have identical positions. “Although
differently expressed, it is clear from all three that there has been an expectation, as
well as a firm arrangement, that data supplied to the Commonwealth by means of
ACARA would be received, stored and managed by ACARA according to agreed
principles and protocols. The arrangements that South Australia has reached with its
schools and stakeholders is dependent upon ACARA’s continuing to act in accordance
with those principles and protocols. Release of the data would, in South Australia’s
view, have the potential to result in industrial disputes that could see schools
withdrawing from the NAPLAN testing regime”: para 108.

6.3  Education Council deliberations are confidential

The Documents were created to inform ongoing discussions within the Education Council
regarding various media outlets who published league tables and, more broadly, strategies
for countering this including possible changes to the My School website. I find that release of
the Documents could reasonably be expected to cause damage to relations between the
Commonwealth and a State as they were prepared on an assumption of confidence and
ongoing discussions. This is reinforced by the Education Council’s Operating Protocols –
October 2012
(http://www.scseec.edu.au/site/DefaultSite/filesystem/documents/PDF/SCSEEC%20Operati
ng%20Protocols%20Final.pdf) at para [5.7] ‘documents prepared for the SCSEEC
(Education Council) should be treated as confidential, unless otherwise agreed by the
Council or senior officials, and only distributed on a strict need to know basis’. Both
Documents were prepared for the Education Council, in response to a direction by the
Education Council to ACARA. Unless otherwise agreed, the Education Council and ACARA
would be required to treat the Documents as confidential. If ACARA were to release the
documents unilaterally, this would fundamentally undermine the operating protocol of the
Education Council. It is reasonable to expect that Commonwealth-State relations within the
work of the Education Council would suffer as a consequence if ACARA breached protocols
around confidentiality. This could be expected to undermine the willingness of the Education
Council and its members to work cooperatively (through ACARA or otherwise) on national
education initiatives.

It is my judgement that release of the Documents under FOI would, fundamentally:


adversely affect the continued level of trust or co-operation in inter-jurisdictional
relationships; and

adversely affect the administration of multiple continuing Commonwealth-State
projects being managed by ACARA.

I am satisfied that this amounts to damage to Commonwealth-State relations.

1 See Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607.
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7.
Sub-section 47E(d) of the FOI Act - substantial adverse effect on the proper and
efficient conduct of ACARA’s operations

7.1  Sub-section 47E(d) of the FOI Act

Sub-section 47E(d) of the FOI Act states:

“A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
….
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency”.

The Commissioner’s Guidelines Part 6 at paragraph [6.110] notes that the AAT has upheld
the exemption where it was established that disclosure of the document could prejudice the
agency’s ability to perform its statutory functions2.

7.2  Diamond Decision

In the Diamond Decision, the AAT concluded that sub-section 47E(d) of the FOI Act applied
to conditionally exempt the My School database, except for the list of schools. In applying
this conditional exemption the Tribunal looked at ACARA’s functions under section 6 of the
ACARA Act. The AAT explores this conditional exemption at paras [112 – 120] of the
Diamond Decision. I rely on this reasoning and it is not necessary for me to cover the same
ground.

7.3  Applying Diamond Decision

Relevantly for this matter, ACARA’s statutory functions include “publish information relating
to school education, including information relating to comparative school performance”: sub-
section 6(e) of the ACARA Act.

Education Council’s Operating Protocols

The Documents were created as a result of a direction by the Education Council. The
Education Council is not an advisory body but rather a governing body that ACARA is
statutorily obliged to follow: sub-section 7(1) of the ACARA Act. The Education Council’s
Operating Protocols – October 2012
(http://www.scseec.edu.au/site/DefaultSite/filesystem/documents/PDF/SCSEEC%20Operati
ng%20Protocols%20Final.pdf) at para [5.7] require the “documents prepared for the
SCSEEC (Education Council) should be treated as confidential”. In my view, release of the
Documents by ACARA outside the agreed Education Council’s Operating Protocols would
reasonably likely lead to:

1)
a loss of confidence in ACARA;
2)
unrest among the nine (9) Education Ministers, the nine (9) Heads of Department, the
Secretariat to the Education Council and the Federal Minister’s office;
3)
a likely loss of future work;
4)
further losses in funding and other vital support; and

2 Re Telstra Australia Limited and Australian Competition and Consumer Commission [2000] AATA 71.
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5)
ACARA being significantly impeded in carrying out its statutory functions, including
“publish information relating to school education, including information relating to
comparative school performance”: sub-section 6(e) of the ACARA Act.

NAPLAN online

In addition, on 31 October 2014, the Education Council agreed that NAPLAN online will be
implemented from 2017 on an opt-in basis over two to three years (Education Council
Decision)
(http://www.scseec.edu.au/site/DefaultSite/filesystem/documents/Communiques%20and%20
Media%20Releases/2014%20Communiques/Education%20Council%2031%20October%20
Communique.pdf).

ACARA is in discussion with its funding partners about additional resources for its online
assessment work, including question development in 2015/16 and beyond. ACARA does not
expect to receive additional funding in the current financial year or the subsequent one,
given the current fiscal environment. No funding decision has been made.

Under section 6 of the ACARA Act, ACARA’s functions include, relevantly: “develop and
administer national assessments”: sub-section 6(b) of the ACARA Act. I find that delivery of
NAPLAN online is part of this statutory function.

If ACARA were required to disclose the Documents under FOI, ACARA would be placed in a
very difficult position, as it would breach the Education Council protocols, jeopardising trust
and goodwill in ACARA, at a critical time when ACARA is in discussions with its funding
partners regarding the move to NAPLAN online.

Proliferation of league tables

I also note that the Documents focus on a number of matters, primarily in relation to media
organisations, as it was the publication of league tables by the media that led to the direction
from the Education Council to ACARA in April 2011. The Legal Advice also focusses
primarily on copyright. I am concerned that release of the Documents by ACARA may
facilitate the proliferation of league tables (including by companies purporting to be media
companies) by indicating:


what measures ACARA has adopted in relation to the My School website to minimise
the creation of league tables; and

the exemptions available to media organisations under various Australian laws.

Any proliferation of league tables would run counter to the position taken by the Education
Council [sub-heading 5.4]. This would reasonably likely lead to a loss of confidence in
ACARA and all the other impacts noted in the second paragraph under this sub-heading.

My findings

For all these reasons, it is my judgment that release of the Documents under FOI would
reasonably be expected to prejudice ACARA’s ability to perform its statutory functions. I am
satisfied that this amounts to having a “substantial adverse effect on the proper and efficient
conduct of the operations” of ACARA.

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8.
Public interest

It is my decision that the Documents are conditionally exempt under both of sub-sections
47B(a) and 47E(d) of the FOI Act. Sub-section 11A(5) of the FOI Act provides that if a
document is conditionally exempt, it must be disclosed ‘unless (in the circumstances) access
to the document at that time would, on balance, be contrary to the public interest’.

I have taken into account the following factors in making my decision:

In favour of disclosure

Of the four (4) factors favouring disclosure set out in sub-section 11B(3) of the FOI Act, one
is clearly not relevant (personal information). The other three (3) factors are considered
below:

a.
promoting the objects of the FOI Act (including all the matters set out in sections 3 and
3A) – There is clearly some public interest in knowing about these Documents in
relation to discussions that were occurring during 2011 in the Education Council
regarding simplistic league tables published by the media;

b.
informing debate on a matter of public importance – In my view, this is covered by the
point above; and

c.
promoting effective oversight of public expenditure – the Documents do not contain
any information in relation to ACARA’s expenditure. I place no weight against this item.

Against disclosure

The FOI Act does not specify any factors against disclosure. However the Guidelines include
a non-exhaustive list of such factors3. Of those factors listed in the Guidelines, relevant
factors for this decision is that disclosure:

“(h)  could reasonably be expected to prejudice an agency’s ability to obtain confidential
information”.

In this case, I find that if ACARA discloses the Documents under FOI, the Education Council
is unlikely to share papers and other documents in relation to its decisions, all of which are
confidential, and which would be of benefit to ACARA. The work of ACARA relies on
collaboration with a wide range of stakeholders including Commonwealth, State and
Territory governments. I consider that the continued cooperation and collaboration of the
Commonwealth, States and Territories to further strategic policy in relation to school
education outweighs the public interest in disclosing the Documents.

“(k)  could reasonably be expected to harm the interests of an individual or group of
individuals”

The publication of league tables creates a strong risk of harm to schools and students. This
has been expressed many times before, including in the affidavit of Dr Jennifer Anne
Donovan, General Manager, Strategic Information and Reporting, within the New South
Wales Department of Education and Communities, affirmed on 4 November 2013, who was

3 Guidelines [6.29].
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a witness before the AAT in the Diamond Decision (Dr Donovan’s Affidavit). At paragraph
10 of Dr Donovan’s affidavit, Dr Donovan states:

“10.  The NSW Department supported the concept of My School. However, from the
outset it was concerned about the delivery and presentation of data published by
My School. We were mindful of the risk of harm to schools and students if My
School generated tables ranking schools in particular geographical areas using
their aggregated NAPLAN scores (league tables), or if it labelled schools or
student groups as ‘the worst’ or ‘underperforming’. These concerns were largely
informed by the experience of the 1996 Year 12 cohort of Mount Druitt High
School, which the Daily Telegraph label ed as the “Class We Failed” in an article
published on 8 January 1997”.

It is clear that league tables are undesirable from a public policy perspective. Releasing the
Documents under FOI risks encouraging their creation, for the reasons outlined under [sub-
heading 7.3], or diluting the effectiveness of the counter-measures ACARA has taken and
might take in the future,

Education Council Paper apparently leaked to media outlet

I note that, apparently, someone leaked the Education Council Paper to The Australian,
which published an article on 1 August 2011
(http://www.theaustralian.com.au/national-affairs/my-school-site-warned-off-suing-
media/story-fn59niix-1226105578220). In my analysis, I do not place much weight on the
fact that the Education Council Paper was apparently leaked to a media outlet at one time.
The Federal Court of Australia has ruled that an unauthorised leak of information does not
necessarily prejudice any exemption claimed: Ascic v Australian Federal Police [1986] FCA
260 at [12].

My finding

For all these reasons, I find that the factors against disclosure outweigh the factors in favour
of disclosure. I decide to not release the Documents under FOI.

9.
Section 42 of the FOI Act (legal professional privilege)

9.1  Commissioner’s Guidelines, version 1.3, September 2013, Part 5

I refer to the Commissioner’s Guidelines, version 1.3, September 2013, Part 5
(Commissioner’s Guidelines). In relation to legal professional privilege, the
Commissioner’s Guidelines provide (relevantly) as follows:

“The FOI Act does not define LPP for the purposes of the exemption. To determine the
application of this exemption, the decision maker needs to turn to common law
concepts of privilege….It is important that each aspect discussed below be addressed
in the decision maker’s statement of reasons”: para 5.116.

“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;
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
whether the advice given is confidential”: para 5.118.

9.2  Legal adviser-client relationship

The Commissioner’s Guidelines provide (relevantly) as follows:

“A legal adviser-client relationship exists where a client retains the services of a
solicitor (or barrister) for the purposes of obtaining professional advice. The existence
of the relationship is usually straightforward to establish where advice is received from
an independent external legal adviser. A typical example in a government context is
advice received by an agency from a law firm that is on an authorised list of panel
firms (including the Australian Government Solicitor)”: para 5.119.

I note that the legal advice in this case is from the Australian Government Solicitor. I find that
this point is established.

9.3  Communication was for the purpose of giving or receiving legal advice

The Commissioner’s Guidelines provide (relevantly) as follows:

“The High Court has confirmed that the common law requires a dominant purpose test
rather than a sole purpose test4. The communication may have been brought into
existence for more than one purpose but will be privileged if the main purpose of its
creation was for giving or receiving legal advice or for use in actual or anticipated
litigation”: par 5.124.

The Legal Advice was drafted in response to a written direction from the Education Council
to ACARA as a result of media publication of simplistic league tables. In order to inform the
paper to the Education Council, legal advice was obtained from the Australian Government
Solicitor. I find that this point is established.

9.4  Independent advice

I find that the Legal Advice is independent legal advice, for the reasons covered under [sub-
heading 9.2].

9.5  Waiver of privilege

The Commissioner’s Guidelines provide (relevantly) as follows:

“LPP is the client’s privilege to assert or waive”: par 5.129.

In this case, the client is ACARA. Apparently someone leaked the Education Council Paper
to The Australian, which published an article on 1 August 2011
(http://www.theaustralian.com.au/national-affairs/my-school-site-warned-off-suing-
media/story-fn59niix-1226105578220). However that publication was not authorised by
ACARA. The Education Council Paper does not directly quote from the Legal Advice, and
only summarises a few paragraphs providing the conclusions of the Legal Advice. I find that
the unauthorised disclosure of the Education Council Paper did not amount to ACARA
waiving privilege over the Legal Advice.


4 Esso Australia Resources Ltd v Commissioner for Taxation (1999) 201 CLR 49.
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9.6 Confidentiality

The Commissioner’s Guidelines provide (relevantly) as follows:

“LPP does not apply to a communication that is not confidential – that is, known only to
the client or to a select class with a common interest in the matter”: para 5.127.

“Whether the disclosure is inconsistent with maintaining confidentiality will depend on
the circumstances of the case”: para 5.132.

The Education Council Paper does not directly quote from the Legal Advice, and only
summarises a few paragraphs of the Legal Advice. It was necessary to summarise these
paragraphs in order to adequately respond to the directions of the Education Council. I do
acknowledge that someone leaked the Education Council Paper to The Australian. However,
I find that this does not change the confidential character of the Legal Advice itself. I find that
the content of the Legal Advice was never disclosed publicly.

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Attachment 2

No.
Title of document
Number of
Exemption
Grounds for deleting
pages
section(s)
(excluding
blanks)
1. Legal advice from the Australian Government
5
S47B(a)
Damage relations between the
Solicitor to ACARA dated 28 April 2011

Commonwealth and a State

S 47E(d)
Substantial adverse effect on the

proper and efficient conduct of the

operations of an agency

S42
Legal professional privilege

2. Paper to the Standing Council for School Education
6
S47B(a)
Damage relations between the
and Early Childhood for meeting on Friday 8 July

Commonwealth and a State
2011 titled “ACARA advice on action to prevent the

publication of league tables”
S 47E(d)
Substantial adverse effect on the
proper and efficient conduct of the
operations of an agency

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