Decision not to continue to undertake an IC review under s 54W(c) of the
Freedom of Information Act 1982
IC review applicant
Verity Pane
Respondent
Department of Veterans’ Affairs
Decision date
25 October 2023
OAIC reference number
MR22/01958
Agency reference number
LEX 54130
Decision
1. I refer to the application made by Verity Pane (the applicant) for Information Commissioner
review (IC review) of a deemed access refusal decision made by the Department of Veterans’
Affairs (the Department) on 1 November 2022 under the
Freedom of Information Act 1982 (Cth)
(the FOI Act).
2. As a delegate of the Information Commissioner, I am authorised to make decisions under
s 54W(c) of the FOI Act.
3. On 12 September 2023, the Department provided a submission under s 55(2)(e)(ii) of the FOI Act,
in response to the OAIC’s notice under s 54Z of the FOI Act, outlining that the applicant’s FOI
request in its current terms would amount to a substantial and unreasonable diversion of the
resources of the Department from its other operations in accordance with s 24AA(1)(a) of the
FOI Act.
4. The Office of the Australian Information Commissioner (OAIC) has not received a response from
the applicant to our subsequent correspondence to advise whether they wished to proceed with
the IC review. As a delegate of the Information Commissioner, I have decided not to undertake
an IC review under s 54W(c) of the FOI Act. My reasons follow.
Background
5. The key procedural steps in this IC review are set out at
Attachment A.
Discretion not to undertake an IC review
6. Under s 54W(c) of the FOI Act, the Information Commissioner may decide not to undertake a
review, or not to continue to undertake a review, if the IC review applicant fails to comply with
a direction of the Information Commissioner.
7. The Direction as to certain procedures to be followed by applicants in Information
Commissioner reviews issued by the Australian Information Commissioner under s 55(2)(e)(i),
provides:
Applicants who are satisfied with the decision and do not wish to proceed with the IC review must
advise the OAIC in writing. Applicants who are not satisfied with the agency or Minister’s decision
must explain why they disagree with the decision and the basis on which they wish to proceed with
the IC review.1
The OAIC has not received a response from the applicant to our subsequent correspondence to
advise whether they wished to proceed with the IC review.
Reasons for decision
I am satisfied that the IC review should be finalised under s 54W(c) of the FOI Act as the OAIC
notified the applicant that in the absence of a response from them by 17 October 2023, their IC
review would be finalised by a delegate of the Information Commissioner under s 54W(c) of the
FOI Act.
8. In deciding whether to exercise the discretion not to undertake a review, I have considered:
• On 3 October 2023, the OAIC emailed the applicant using the email address provided in the
IC review application about whether they wished to proceed with the IC review in response
to the Department’s submission. The OAIC advised the applicant that in the absence of a
response by 17 October 2023, that the IC review would be finalised by a delegate of the
Information Commissioner under s 54W(c) of the FOI Act.
• The applicant has not provided any indication to the OAIC that they disagree with the
Department’s submission or, that they wish to proceed with the IC review.
• It does not appear that reviewing this matter will promote the objects of the FOI Act.
9. As a delegate of the Information Commissioner, I have decided to exercise my discretion to
decide not to undertake an IC review under s 54W(c) of the FOI Act.
10. I confirm that this IC review is now closed. Your review rights are set out below.
1 Direction as to certain procedures to be followed by applicants in Information Commissioner reviews | OAIC ) [1.22] and
[1.33]
11. If either party would like to discuss this matter, please contact us by email at
xxxxx@xxxx.xxx.xx. In all correspondence, please quote MR22/01958.
Yours sincerely,
Hannah Holswilder
Director
Freedom of information Branch
25 October 2023
ATTACHMENT A
Key procedural steps
Date
Events
1 October 2022
FOI request made to the respondent for access to:
“…documents (whether held in electronic or other forms) sent in
2022 to clients about cost recovery of incapacity payments made
to them due to the client receiving a ComSuper pension (including
backpay of such a pension)”
4 December 2022
IC review application received by the
OAIC
5 January 2023
IC review commenced by OAIC
12 September 2023 Submission under s 55(2)(e)(ii) of the FOI Act provided by
respondent.
3 October 2023
The OAIC sought the applicant’s advice about whether the
applicant wished to proceed with the IC review and if so to provide
grounds about the basis on which the applicant wished to proceed.
The OAIC also advised the applicant that their IC review will be
finalised under s 54W(c) if no response was received by the
specified date.
Review rights
Judicial review
You can apply to the Federal Court of Australia or the Federal Circuit Court for a review of a decision
of the Information Commissioner if you think that a decision by the Information Commissioner not
to review or not to continue to undertake review of this IC review application under the Freedom of
Information Act 1982 (the FOI Act) is not legally correct. You can make this application under the
Administrative Decisions (Judicial Review) Act 1977.
The Court will not review the merits of your case but it may refer the matter back to the Information
Commissioner for further consideration if it finds the decision was wrong in law or the Information
Commissioner's powers were not exercised properly.
An application for review must be made to the Court within 28 days of the OAIC sending the decision
or determination to you. You may wish to seek legal advice as the process can involve fees and costs.
Please contact the Federal Court registry in your state or territory for more information, or visit the
Federal Court website a
t http://www.fedcourt.gov.au/.
Making a complaint to the Commonwealth Ombudsman
If you believe you have been treated unfairly by the OAIC, you can make a complaint to the
Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The
Ombudsman can investigate complaints about the administrative actions of Australian
Government agencies to see if you have been treated unfairly.
If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC
reconsider or change its action or decision or take any other action that the Ombudsman considers
is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or
visit the Commonwealth Ombudsman’s website a
t http://www.ombudsman.gov.au.
Accessing your information
If you would like access to the information that we hold about you, please contact
xxxxx@xxxx.xxx.xx. More information is available on
the Access our information2 page on our
website.
2 www.oaic.gov.au/about-us/access-our-information/.
