Proposed six-month waiting period for Youth Allowance recipients

Vera Lystich made this Freedom of Information request to Department of Social Services

The request was refused by Department of Social Services.

From: Vera Lystich

Delivered

To whom it may concern,

I am writing to request, under the Freedom of Information Act, the following documents from the Department:

"Any documents, specifically legal opinions,!reports or briefs, created by the Department relating to Australia's obligations under international law in relation to the proposed six-month waiting period for Newstart Allowance or Youth Allowance applicants under 30 years of age."

To expedite the processing of my request, I am willing to exclude the plain text of emails sent by Department staff and limit the scope of my request to documents created between 1 September 2013 and today's date.

Yours faithfully,

Vera Lystich

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From: FOI
Department of Social Services

Thank you for contacting the Freedom of Information (FOI) inbox of the
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From: FOI
Department of Social Services


Attachment FOI Request no.14 15 101 acknowledgement letter 15 Jan 2015.PDF.pdf
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Good afternoon Ms Lystich,

 

Please find attached correspondence regarding your Freedom of Information
(FOI) request dated 14 January 2014.

 

The reference number for this FOI request will be: FOI request no.
14/15-101.

 

Thank you,

 

Regards

FOI Officer

Information Law Team

Public Law Branch

Legal Services Group

Department of Social Services

E: [1][Department of Social Services request email]

 

DSS acknowledges the traditional owners of country throughout Australia,
and their continuing connection to land, sea and community. We pay our
respects to them and their cultures, and to elders both past and present.

References

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From: Vera Lystich

Delivered

Good evening,

Thank you for your response.

To clarify, I am not seeking access to the report on this issue prepared by the Parliamentary Joint Committee on Human Rights and released in September 2014. The reason for this is that this particular report is publicly available.

I thought I should clarify this, given I would imagine the Department would have received and kept on file a copy of this document.

Yours sincerely,

Vera Lystich

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From: FOI
Department of Social Services

Dear Ms Lystich,
 
Thank you for your email dated 15 January regarding the scope of your
request.
 
We will take your comments into account in processing this request.
 
Kind regards,
 
FOI Officer
Information Law Team
Public Law Branch
Legal Services Group
Department of Social Services
E: [1][Department of Social Services request email]
 

show quoted sections

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From: FOI
Department of Social Services


Attachment FOI request 14 15 101 decision letter 3 February 2015 3.PDF.pdf
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Dear Ms Lystich,

 

Please find attached my decision in relation to your FOI request of 14
January 2015 (FOI request 14/15-101).

 

Regards,

 

FOI Team

Department of Social Services

E: [1][Department of Social Services request email]      

 

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The Department of Social Services acknowledges the traditional owners of
country throughout Australia, and their continuing connection to land, sea
and community. We pay our respects to them and their cultures, and to the
elders both past and present.

 

Note: This email and any attachments may contain confidential or legally
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Vera Lystich left an annotation ()

Does anyone have any ideas here?

I think it's very interesting that the Department even thought it necessary to obtain external legal advice on this. I'd be very interested to see the document!

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Ben Fairless left an annotation ()

Maybe remove the exclusion you put on for plain text emails, and see what you catch with that?

External Lawyers are commonplace throughout government, as they are in the private sector. It's a good way to get a 2nd opinion from someone who specialises in that area of law. They could also be referring to the Australian Government Solicitor, which is technically an external law firm (from their perspective).

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Locutus Sum left an annotation ()

Yes, I have ideas to inform but not, unfortunately, to help.

It is worthwhile to say that it is not unusual in western democracies for government departments to obtain external advice about new policy, or new legislation. In the case for an Australian Government department, the word "external" probably means that the legal advice was obtained from the Australian Government Solicitor (http://www.ags.gov.au ). It is like service agencies for the other agencies. A person must hope that if the idea is obvious to you that maybe the new rules will connect to an international legal obligation then also it will be obvious to a person in the agency and they will get advice. For this reason I am not surprising that the agency has sought legal advice.

Now I will look at whether you can get the documents. I think not, but we can look closely at the letter and the decision. I think that the letter of decision is a good letter. The decision maker has followed closely the advice of the Australian Information Commissioner about what such a letter should contain. The decision maker has identified the law and the relevant information that goes with the law to make a decision ... and then she has reached a decision that keeps to the law.

Maybe you already know this but I will say it ... the FOI Act in Australia has two kinds of exempt documents. Some documents are plainly "exempt". This is to say that if a document is one of a certain kind of document, then it will be completely exempt under the FOI Act. This kind of document includes subject to legal professional privilege, documents affecting national security, osv.

Then there exist documents that will be exempt if they are a certain kind of document AND it would not be in the public interest to release the document. It is worthwhile to see that the test is in the negative. It would be necessary for an agency to show that a document of this kind should not be released. It is not neccessary for the applicant to show that the document should be released.

Now we can return to your application.

The decision maker has said that only one single document was found that fitted the description of documents that you gave. So there is the first possibility for challenge; if you believe that there are other documents then you could ask for internal review and say that the search for documents was insufficient. In my mind you would not succeed unless you had a strong reason or some proof that there are other documents and not only the one that is mentioned in the decision letter.

The decision maker says that the document was exempt. She gives a reason. The reason she gives is section 42 (Documents subject to legal professional privilege). You can look at the website of the Office of the Australian Information Commissioner where there is advice for agency decision makers about exempt documents. In my mind, the decision maker has followed the rules and identified the important pieces of the relationship between the department and the legal-advicer to show that the document really is subject to legal professional privilege. Maybe you will think differently. Maybe if you read the advice from the OAIC you will have a mind that the document is not subject to legal professional privilege. Then you can ask for internal review and explain why you have a different mind. Yet if you accept that it IS this kind of document, then you should/must accept that it is exempt and that you cannot get it through FOI.

The other thought that I have is for interest but it does not give you what you want. It is so much ... you could ask for a page of the document (any page) where it shows the name of the person or agency who was the legal advisor (Australian Government Solicitor employee, other law practitioner, osv.)

Jeg er ked af.

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Vera Lystich left an annotation ()

I am going to research this exemption a little further so that I may formulate a more comprehensive response to the Department. I don't think this is something I will be able to do today.

Locutus, I appreciate your input on this one, especially in relation to your last point re the identity of the external legal firm.

I have done some very basic research and it appears the agency needs to show 'real harm' (other than embarrassment, etc) to rely on this section of the Act to claim an exemption. I have only read this from one source though. Can anyone verify this?

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Ben Fairless left an annotation ()

There are 2 types of exemptions - Division 2 and Division 3.

s.33 to 47A are fully exempt. The agency doesn't need to prove its against the public interest, just needs to prove the document meets the exemption (which they have done in this case).

47B to 47J are subject to a public interest test.

Cheers

Ben

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