Reference:
FOI 22/57
Contact:
FOI Team
E-mail:
xxx@xxxxxxx.xxx.xx
BE
Right to Know
By email only: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear BE
Freedom of Information Request – FOI 22/57
On 4 August 2022, the Department of Finance (Finance) received your email, in which you
sought access under the Commonwealth
Freedom of Information Act 1982 (FOI Act) to the
following:
[The] Question Time briefs (however described). This request is limited to Question Time briefs for the
47th Parliament (ie Question Time briefs prepared for 27 – 28 July and 1-4 August).
I also request a copy of the Department’s current index of Question Time briefs.
Duplicate copies of the same document are not required, although different or updated versions of a
document are. If a document contains tracked changes or comments, it is requested that the document be
provided in a form where all tracked changes and comments are visible.
Names and contact details for departmental staff below the SES level are not required and can be treated
as irrelevant under s22 of the Act for the purposes of this request.
On 19 August 2022, Finance sent you a request consultation notice, which set out that on the
basis of your request including draft versions of QTB’s that a practical refuse reason existed,
being that the work involved in processing your request would substantially and
unreasonably divert the resources of Finance from its other operations.
The same day you responded amending the scope of your request by removing draft
documents.
Based upon the amended scope, I considered that the practical refusal reason no longer
existed, and Finance could process your request.
The purpose of this letter is to provide you with notice of my decision under the FOI Act.
One Canberra Avenue, Forrest ACT 2603 • Internet www.finance.gov.au
Decision
I have identified
35 documents as falling within the scope of your request.
I have decided to:
• release
12 documents,
• release
19 documents with irrelevant information redacted, and
• release
4 documents with irrelevant and exempt information redacted on the basis of
the following exemptions being that the documents would reveal legally privileged
material and would breach confidence.
The documents and redactions are identified in the Schedule at
Attachment A.
In making my decision, I have had regard to the following:
• the terms of your FOI request;
• the content of the documents that fall within the scope of your request;
• consultations with third parties in accordance with the FOI Act and submissions
made by those third parties;
• the relevant provisions of the FOI Act; and
• the FOI Guidelines issued by the Office of the Australian Information Commissioner
(FOI Guidelines).
Authorised decision-maker
I am authorised by the Secretary of Finance to grant or refuse access to documents.
Exempt or irrelevant matter removed from the documents
I have redacted irrelevant and exempt information from the documents and released the
edited form of the documents to you.
Information removed as it contains legally privileged material
Section 42 of the FOI Act provides:
(1) 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.
(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal
professional privilege in relation to the production of the document in legal proceedings waives that
claim.
The FOI Guidelines provide:
5.129 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
• whether the advice given is confidential.
Finance (through Comcover) manages certain types of claims against the Commonwealth on
behalf of Fund Members. Comcover defends or settles claims informed by legal advice.
Comcover manages all claims in a manner that is consistent with its obligations under
the
Legal Services Directions 2017, as administered by the Attorney-General’s Department.
2
Finance obtained independent confidential legal advice from the Australian Government
Solicitors (AGS) who are an external agency to Finance that provided high-quality legal
advice.
In relation to Documents 19 and 26, Finance obtained legal advice from AGS. This legal
advice was incorporated within the QTB’s to provide the Minister with additional
information regarding the progress of the matters.
The information was only disclosed to a limited audience, being the Minister for Finance
and her Office, who had a mutual interest in the contents of the legal advice. The legal
advice has not been circulated further than was necessary, and only a limited number of
people have access to the documents. As such, I consider that Finance has acted consistently
with the claim of confidentiality and have not waived our legal privilege.
I consider that the release of the sections redacted in Documents 19 and 26 would reveal
material privileged from production in legal proceedings on the ground of legal professional
privilege, and accordingly, that material is exempt from release under section 42 of the
FOI Act.
Information removed as it contains confidential material
Subsection 45(1) of the FOI Act provides:
A document is an exempt document if its disclosure under this Act would found an action, by a person
(other than an agency or the Commonwealth), for breach of confidence.
This exemption applies if a person who provided confidential information would be able to
bring an action for breach of confidence to prevent disclosure, or to seek compensation for
loss, or damage arising from disclosure.
The FOI Guidelines provide:
5.159 To found an action for breach of confidence (which means s 45 would apply), the following five
criteria must be satisfied in relation to the information:
• it must be specifically identified
• it must have the necessary quality of confidentiality
• it must have been communicated and received on the basis of a mutual understanding of
confidence
• it must have been disclosed or threatened to be disclosed, without authority
• unauthorised disclosure of the information has or will cause detriment.
Document 5
Document 5 contains a QTB on the Live Cattle Export Ban Class Action, which contains
specifically identifiable information that was obtained as part of ongoing ‘without prejudice’
confidential discussions between the Commonwealth’s legal representatives and claimants
that was communicated and received on the basis of a mutual understanding of confidence.
The information remains within the knowledge of only a limited group of people.
Document 7
ASC Pty Ltd (ASC) and the Commonwealth (represented by the Department of Defence) are
contractually bound to not disclose commercial-in-confidence information, which
specifically identifies pricing information, without the prior written consent of the other
party, or otherwise in the limited circumstances set out in the contract, none of which are
relevant to this request.
3
This pricing information has the necessary quality of confidentiality as it constitutes
commercially sensitive information, which is classified under the contract as commercial in
confidence information that must not be disclosed except as authorised. Neither ASC, nor
the Commonwealth, have authorised the disclosure of the pricing information. ASC has
expressly opposed such disclosure.
The pricing information has been communicated and received on a mutual understanding of
confidence. Both parties have treated the information with the strictest confidence and not
disclosed it, in accordance with the terms of the contract.
The disclosure of the information would be detrimental to ASC as pricing information is
commercially sensitive and such disclosure would provide third parties with an unfair
insight into ASC’s pricing and assist third parties to compete against ASC for naval
shipbuilding work.
Document 26
Document 26 contains a QTB on a Comcover claim made by Ms Rachelle Miller, formerly
employed under the
Members of Parliament (Staff) Act 1982 (MOP(S) Act).
The information is specifically identifiable as it was obtained as part of ongoing confidential
discussions between the Commonwealth’s legal representatives and Ms Miller’s lawyers and
has been communicated and received on the basis of a mutual understanding of confidence.
Further, given the sensitivities involved in Comcover claims, I consider breaching
Ms Miller’s confidence would cause significant detriment to both her, and others claimants
who have, or may in the future, provide information to the Commonwealth in relation to
Comcover claim.
Disclosure
The Commonwealth breaching its obligations of confidentiality by releasing Documents 5, 7
or 26 would enable the other parties to bring an action for breach of confidence to prevent
disclosure, or to seek compensation for loss, or damage arising from disclosure.
The information in all three documents was only disclosed to a limited audience, being the
Minister for Finance and her Office, who are responsible for Finance’s portfolio.
The release of the information redacted in Documents 5, 7 and 26 would found an action for
breach of confidence, and accordingly, I consider that information is exempt from release
under section 45 of the FOI Act.
Third party consultation
Finance consulted with ASC Pty Ltd, who objected to the disclosure of their pricing
information contained in Document 7, under sections 45, 47 and 47G of the FOI Act.
Additional exemptions
I consider that the redacted material would also be exempt under sections 47, 47E(d), 47F,
and 47G of the FOI Act. As I consider the material is already exempt under another
exemption (i.e. section 42 or 45), it is not necessary for me to exempt the material under
other sections of the FOI Act.
4
Charges
I have decided that a charge is not payable in this matter.
Review and appeal rights
You are entitled to request an internal review or an external review by the Office of the
Australian Information Commissioner (OAIC) of my decision. The process for review and
appeal rights is set out at
Attachment B.
Publication
Finance will publish the documents released to you on our
Disclosure Log. Finance’s policy
is to publish the documents within one working day after they are released to you.
If you have any questions in regards to this request, please contact the FOI Team on the
above contact details.
Yours sincerely,
Ian Nicholas
Assistant Secretary
Parliamentary and Corporate Engagement | Corporate Services
Department of Finance
4 October 2022
5
ATTACHMENT A
SCHEDULE OF DOCUMENTS RELEVANT TO FOI 22/57
Document No. of Description of Document
Decision
No.
Pages
1.
3
QTB Index
Release – irrelevant information (s22) redacted
2.
4
Advance to the Minister
3.
7
AFP Matter
4.
3
ASL – Election Commitment – Public Sector Staffing
Release
5.
7
Brett Cattle - Live Cattle Export Ban Class Action
Release – irrelevant information (s22) and exempt
information (s45) redacted
6.
7
Buy Australia - Future Made in Australia Office
Release – irrelevant information (s22) redacted
7.
8
Collins Submarines – ASC: Life of Type Extension
Release – exempt information (s45) redacted
(LOTE) To the Collins Class Submarines
8.
3
COVID-19 Advertising Campaign
Release
9.
5
COMCAR Fleet – Electric Vehicle Trial
Release – irrelevant information (s22) redacted
10.
3
MOP(S) Training and L&D – Parliamentarian and
MOP(S) Act Employee learning and Development
11.
2
Data Scheme – Implementing the Data Availability
and Transparency Act 2022
12.
6
Economic Conditions and Outlook
13.
3
Parliamentary Expenses Management System
(PDMS)
14.
2
Review of the Parliamentary Business Resources Act Release
and IPEA Act
15.
9
Financial Reporting – Monthly Financial Statements – Release – irrelevant information (s22) redacted
Year to Date Results
16.
3
Future Fund ESG Issues
17.
4
GRANTS – ANAO Report on the Building Better
Release
Regions Fund
18.
4
Inland Rail – Australian Rail Track Corporation
Release – irrelevant information (s22) redacted
(ARTC)
19.
4
Land Acquisition Matters
Release – exempt information (s42) redacted
6
20.
7
Machinery of Government Changes Implementation
Release
21.
4
National Intermodal – Development of Intermodal
Release – irrelevant information (s22) redacted
Terminals in Victoria and Queensland
22.
4
NBN Co Current Issues
23.
5
NEW SPRS – Updated Commonwealth Procurement
Rules
24.
3
QBT Wait Times and Delays
25.
9
Quarantine – Purpose-Built Quarantine Centres
Release
26.
9
Claim from Rachelle Miller
Release – irrelevant information (s22) and exempt
information (s42 and s45) redacted
27.
2
Regulatory Reform
Release – irrelevant information (s22) redacted
28.
10
Snowy Hydro Current Issues
29.
16
Superannuation Salary – Rent Free Housing
Release
30.
3
Election Commitment – Audit of Wasteful Spending
31.
4
Australian Naval Infrastructure (ANI) Current Issues
32.
5
Judges Pensions Scheme
33.
2
Demographic DATA for MOP(S) Act Employees
34.
3
Parliamentarians’ Remuneration
Release – irrelevant information (s22) redacted
35.
1
New Zealand Citizens Voting in Australian Elections
Release
7
ATTACHMENT B
Freedom of Information – Your Review Rights
If you disagree with a decision made by the Department of Finance (Finance) or the
Minister for Finance (Minister) under the
Freedom of Information Act 1982 (the FOI Act)
you can have the decision reviewed. You may want to seek review if you sought certain
documents and were not given full access, if you have been informed that there will be a
charge for processing your request, if you have made a contention against the release of
the documents that has not been agreed to by Finance or the Minister, or if your
application to have your personal information amended was not accepted. There are two
ways you can seek a review of our decision: an internal review (IR) by Finance or the
Minister, or an external review (ER) by the Australian Information Commissioner (IC).
Internal Review (IR)
Third parties
If, Finance or the Minister (we/our), makes a
If you are a third party objecting to a decision
Freedom of Information (FOI) decision that
to grant someone else access to your
you disagree with, you can seek a review of
information, you must apply to the IC within
the original decision. The review will carried
30 calendar days of being notified of our
out by a different decision maker, usually
decision to release your information.
someone at a more senior level.
Further assistance is located
here.
You must apply for an IR within 30 calendar
Do I have to go through the internal
days of being notified of the decision or
review process?
charge, unless we agree to extend your time.
No. You may apply directly to the OAIC for
You should contact us if you wish to seek an
an ER by the IC.
extension.
We are required to make an IR decision
If I apply for an internal review, do I
within 30 calendar days of receiving your
lose the opportunity to apply for an
application. If we do not make an IR decision
external review?
within this timeframe, then the original
No. You have the same ER rights of our IR
decision stands.
decision as you do with our original decision.
This means you can apply for an ER of the
Review by the Australian
original decision or of the IR decision.
Information Commissioner (IC)
Do I have to pay for an internal review
The Office of the Australian Information
or external review?
Commissioner (OAIC) is an independent
office who can undertake an ER of our
No. Both the IR and ER are free.
decision under the FOI Act. The IC can
review access refusal decisions, access grant
decisions, refusals to extend the period for
applying for an IR, and IR decisions.
If you are objecting to a decision to refuse
access to a document, impose a charge, or a
refusal to amend personal information, you
must apply in writing to the IC within 60
calendar days of receiving our decision.
8
How do I apply?
Can I appeal the Information
Commissioner’s external review
Internal review
decision?
To apply for an IR of the decision of either
Yes. You can appeal the Information
Finance or the Minister, you must send your
Commissioner’s ER decision to the
review in writing. We both use the same
Administrative Appeals Tribunal (AAT).
contact details, and you must send your
review request in writing.
There is a fee for lodging an AAT application
(as at 1 June 2022 it is $962).
In your written correspondence, please
include the following:
Further information is accessibl
e here.
• a statement that you are seeking a review
The AAT’s number is 1800 228 333.
of our decision;
• attach a copy of the decision you are
Complaints
seeking a review of; and
• state the reasons why you consider the
Making a complaint to the Office of the
original decision maker made the wrong
Australian Information Commissioner
decision.
You may make a written complaint to the
Email: xxx@xxxxxxx.xxx.xx
OAIC about actions taken by us in relation to
your application.
Post: The FOI Coordinator
Legal and Assurance Branch
Further information on lodging a complaint is
Department of Finance
accessible
here.
One Canberra Avenue
FORREST ACT 2603
Investigation by the Commonwealth
Ombudsman
For further assistance contact the FOI team
The Ombudsman can also investigate
(02) 6215 1783.
complaints about action taken by agencies
under the FOI Act. However, if the issue
External review (Information
complained about either could be, or has been,
Commissioner Review)
investigated by the IC, the Ombudsman will
For an ER, you must apply to the OAIC in
consult with the IC to avoid the same matter
writing. The OAIC ask that you commence a
being investigated twice. If the Ombudsman
review by completing their online form
here.
decides not to investigate the complaint, then
they are to transfer all relevant documents and
Your application must include a copy of the
information to the IC.
notice of our decision that you are objecting
to, and your contact details. You should also
The IC can also transfer a complaint to the
set out why you are objecting to the decision.
Ombudsman where appropriate. This could
occur where the FOI complaint is only one
Email: xxxxx@xxxx.xxx.xx
part of a wider grievance about an agency’s
actions. You will be notified in writing if your
Post: Office of the Australian Information
complaint is transferred.
Commissioner
GPO Box 5218
Complaints to the Ombudsman should be
Sydney NSW 2001
made online
here.
The IC’s enquiries phone line is
The Ombudsman’s number is 1300 362 072.
1300 363 992.
9
Document Outline
