Our Ref
LEX 590
MBV
Right to Know
By email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear MBV
Your Freedom of Information request - decision
I refer to your request, received by the Department of Employment and Workplace Relations
(department) on 27 February 2023, for access under the
Freedom of Information Act 1982 (FOI Act) to the fol owing documents:
“I seek Meeting Briefs prepared for the Minister for Employment and Workplace
Relations from 1 June 2022 to 24/02/2023 which reference the CFMMEU/CFMEU or
MUA.
I seek briefs which were prepared for the Minister to meet with stakeholders/third
parties, including the CFMMEU/CFMEU or MUA and industry groups.”
My decision
The department holds three documents (one document and two attachments) totalling
7 pages which falls within the scope of your request.
I have decided to grant you
access in part to the documents in question.
I have decided that certain parts of the documents are exempt under the FOI Act because
they contain:
• deliberative matter, the disclosure of which would be contrary to the public interest
(section 47C conditional exemption)
• commercially valuable information (section 47(1)(b)); and
• material containing the business information of third parties (section 47G
conditional exemption).
A document schedule and the reasons for my decision are set out at
Attachment A.
GPO Box 9880, Canberra ACT 2601 | Phone 1300 488 064 | www.dewr.gov.au | ABN 96 584 957 427
How we wil send your documents
The documents being released to you are attached.
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
5 May 2023
Attachment A
SCHEDULE OF DOCUMENTS – MBV – LEX 590
Number
Pages
Date
Description
Decision
Exemption
Comments
1. 2
14/02/2023 Meeting Brief: MB23-000027:
Grant access in
s 22
Staff names and contact details
To: Minister for Employment and
part
removed on relevance grounds under
Workplace Relations - ACTU and
section 22(1)(a)(ii) of the FOI Act
MUA Seacare Scheme
s 47 / 47G
Third party information redacted under
sections 47(1)(b) and 47G(1)(a) of the
FOI Act
s 47C
Deliberative material redacted under
section 47C of the FOI Act
1A.
3
Attachment A: Talking Points
Grant access in
s 47 / 47G
Third party information redacted under
part
sections 47(1)(b) and 47G(1)(a) of the
FOI Act
s 47C
Deliberative material redacted under
section 47C of the FOI Act
1B.
2
Attachment B: Background - the
Grant access in
s 47 / 47G
Third party information redacted under
Seacare scheme
part
sections 47(1)(b) and 47G(1)(a) of the
FOI Act
s 47C
Deliberative material redacted under
section 47C of the FOI Act
REASONS FOR DECISION
What you requested
On 27 February 2023, you requested access to the fol owing:
“I seek Meeting Briefs prepared for the Minister for Employment and Workplace
Relations from 1 June 2022 to 24/02/2023 which reference the CFMMEU/CFMEU or
MUA.
I seek briefs which were prepared for the Minister to meet with stakeholders/third
parties, including the CFMMEU/CFMEU or MUA and industry groups.”
On 9 March 2023, the department advised you that it would treat the names, signatures,
position titles and contact details of staff members as irrelevant in accordance with
section 22 of the FOI Act unless you advised otherwise. As you did not advise that you
wished to have this information included in the scope of your request, I have redacted the
names, signatures, position titles and contact details of departmental staff members as
irrelevant material under section 22 of the FOI Act.
Consultation with third party
On 22 March 2023, the department informed you of the requirement to consult with a third
party on material concerning it. This extended the statutory processing period by 30 days
under section 15(6)(a) of the FOI Act.
Extension of time
On 6 April 2023, the department sought your agreement to a 7 day extension of time until
5 May 2023 to process your request. On 6 April 2023, you confirmed your agreement to the
extension.
What I took into account
In reaching my decision, I took into account:
• your original request dated 27 February 2023
• correspondence with you
• the document that falls 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
• consultations with other Government agencies
• consultation with a third party
• 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.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that certain parts of the documents you requested are exempt under the
FOI Act. My findings of fact and reasons for deciding that an exemption applies are discussed
below.
Section 22 of the FOI Act: access to edited copies with irrelevant matter deleted
I have decided that some parts of the documents falling within the scope of your request
contain exempt and/or irrelevant material. In this regard, sections 22(1) and (2) of the FOI
Act provide that:
Scope
(1)
This section applies if:
(a) an agency or Minister decides:
(i) to refuse to give access to an exempt document; or
(ii) 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
(ii)
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
(ii)
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.
Parts of the documents falling within the scope of your request include exempt and/or
irrelevant material, as identified in the Schedule of Documents.
In accordance with section 22 of the FOI Act, I have deleted any exempt and irrelevant
material and released the remaining material to you.
Section 47C of the FOI Act – Deliberative processes
Subsection 47C(1) of the FOI Act relevantly provides that:
(1) A document is conditionally 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;
Exceptions
(2) Deliberative matter does not include either of the following:
(a) operational information; or
(b)
purely factual material.
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)).
I am satisfied that the documents contain deliberative matter in the form of opinions,
advice, analysis and recommendations concerning the Seacare workers’ compensation
scheme, which were prepared for the purposes of the deliberative functions of the
department in briefing the Minister. The documents provide advice, analysis and
recommendations on the merits of a range of options proposed to the Minister for his
consideration.
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.
I am satisfied that the material in question constitutes deliberative matter which is neither
operational information nor purely factual material. I am also satisfied that none of the
exceptions in section 47C(3) of the FOI Act apply. As such, the material is conditionally
exempt under section 47C of the FOI Act.
Public interest considerations
Under subsection 11A(5) of the FOI Act, the department must give you access to the
material unless it would, on balance, be contrary to the public interest to do so at this time.
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 Seacare workers’
compensation scheme;
• increase scrutiny and discussion of the options being considered by the Government
to address the Seacare workers’ compensation scheme; and
• promote effective oversight of public expenditure.
Notwithstanding these matters, I have also considered the public interest factors weighing
against the release of the conditionally exempt material. The document records the
department’s analysis of third parties’ positions which are not publicly known, proposes
options which still require further consideration and broad consultation with affected
stakeholders prior to a decision being made by the government, and provides advice about
the timing of those options. I have considered the extent to which disclosure could, in
future, inhibit the department’s frankness and candour in providing advice,
recommendations and options for the Minister’s consideration when attending similar
meetings. I consider that the release of the sensitive considerations at this time would be
contrary to the public interest, as it would risk pre-empting the government’s position with
respect to the Seacare workers’ compensation scheme and prejudice ongoing discussions
with stakeholders.
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.
Having considered the public interest factors for and against disclosure, I have decided that,
in the circumstances, the public interest in disclosing the deliberative material contained in
the documents is outweighed by the public interest against disclosure.
Section 47 of the FOI Act – commercially valuable information
I have applied the exemption in paragraph 47(1)(b) of the FOI Act to parts of the documents.
Section 47(1)(b) provides:
(1) A document is an exempt document if its disclosure under this Act would
disclose:
(b) any other information having a commercial value that would be, or could
reasonably be expected to be, destroyed or diminished if the information
were disclosed.
Paragraph 5.204 of the FOI Guidelines states that to be exempt under paragraph 47(1)(b), a
document must contain information that has a commercial value to another person or body,
and the commercial value of the information would be, or could reasonably be expected to
be, destroyed or diminished if it were disclosed.
It is a question of fact as to whether information has commercial value, and whether
disclosure would destroy or diminish that value. The following factors may assist in that task:
• whether the information is known only to the agency or person for whom it has
value or, if it is known to others, to what extent that detracts from its intrinsic
commercial value;
• whether the information confers a competitive advantage on the agency or person
to whom it relates;
• whether a genuine ‘arm’s-length’ buyer would be prepared to pay to obtain that
information;
• whether the information is still current or out of date (out of date information may
no longer have any value); and
• whether disclosing the information would reduce the value of a business operation
or commercial activity.
I have consulted with a third party about the release of commercial information concerning
the third party in the documents. The information comprises the terms of a proposal,
including the name of the third party, the arrangements for the proposal, and pricing
information. I consider that the information has commercial value.
Based on the response provided by that third party, I am satisfied that the information in
question is not widely known and is stil current. The third party has also informed me that
the information in the documents was provided to the department on a confidential basis.
If released, the third party considers that its competitors could use the information to gain
an advantage over it.
Having regard to the nature of the information and the third party’s concerns, I consider that
the release of the information in question could reasonably be expected to destroy or
diminish the commercial value of that information.
As such, I have applied the exemption in paragraph 47(1)(b) of the FOI Act to parts of the
document.
Section 47G of the FOI Act – Business information
I have also applied the conditional exemption in paragraph 47G(1)(a) of the FOI Act to parts
of the documents.
Section 47G(1)(a) of the FOI Act relevantly provides:
(1) A document is conditionally exempt if its disclosure under this Act would disclose
information concerning a person in respect of his or her business or professional
affairs or concerning the business, commercial or financial affairs of an organisation
or undertaking, in a case in which the disclosure of the information:
(a) would, or could reasonably be expected to, unreasonably affect that person
adversely in respect of his or her lawful business or professional affairs or
that organisation or undertaking in respect of its lawful business,
commercial or financial affairs.
Paragraph 6.185 of the FOI Guidelines provides that the exemption is intended to protect
the interests of third parties dealing with the government.
I have decided that the documents contain material which, if released, would, or could
reasonably be expected to, unreasonably and adversely affect a third party in respect of
their lawful business or commercial affairs. Specifically, as explained above, I consider that
disclosing information relating to the proposal would diminish the commercial value of the
information and unreasonably and adversely affect the third party’s business affairs,
including their ability to undertake future exploration of the viability of the proposal
canvassed in the documents.
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
conditionally 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, 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; and
• inform debate on a matter of public importance, being the Seacare workers’
compensation scheme.
I have also considered the relevant factors weighing against disclosure indicating that access
would be contrary to the public interest. In particular, I have considered the extent to which
disclosure would, or could reasonably be expected to, unreasonably affect a third party in
respect of their lawful business affairs by making information available to their competitors.
As negotiations are yet to be finalised, I consider that this would result in the department
being unable to truly test the capacity of the market.
Additionally, noting that the third party provided the information to the department on a
commercial-in-confidence basis, I consider that disclosure would be contrary to the public
interest as it would be likely to prejudice the department’s ability to obtain similar
information in the future.
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 parts of the documents are exempt under section 47(1)(b) of
the FOI Act. I am also satisfied that parts of the documents are conditional y exempt under
sections 47C(1) and 47G(1)(a). Furthermore, I have decided that on balance, it would be
contrary to the public interest to release the conditionally exempt material to you at this
time. I have therefore deleted the exempt material and released the remaining material in
accordance with subsection 22(1) of the FOI Act.
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 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:
Post:
Commercial and Information Law Branch
Department of Employment and Workplace Relations
Location Code: C50MA1
GPO BOX 9880
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 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