Seeking policies and guidelines guiding discretionary decision making

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Dear Department of the Prime Minister and Cabinet,

Administrative decisions often include the exercise of discretion. By this I mean decisions in which a government decision maker has the power to make a choice about whether to act or not act, to approve or not approve, or to approve with conditions. In these cases the decision maker’s role is to make a judgment taking into account all relevant information.

We would like to ask for a copy of the polices and guidelines currently in place to guide PM&C staffs discretionary decision making.

Thank you for your time.

Yours faithfully,

Trav S

FOI, Department of the Prime Minister and Cabinet

5 Attachments

OFFICIAL

Dear Trav S

 

Thank you for your email, received by the Department of the Prime Minister
and Cabinet (the Department).

 

Section 15 of the Freedom of Information Act 1982 (the FOI Act) requires
that a request for access to documents under the FOI Act must, among other
requirements, provide such information as is reasonably necessary to
enable the agency to identify the document being sought.

 

Your request does not provide such information as is reasonably necessary
to enable the Department to identify the document you are seeking.

 

To enable the Department to identify the document(s) you are seeking,
please specify the subject matter of the administrative decision(s) in
respect of which you are seeking 'policies and guidelines currently in
place to guide PM&C staffs discretionary decision making'.

 

Processing of your request will commence once it meets the requirements of
section 15 of the FOI Act.

 

Should you require more information or wish to discuss, please contact us,
quoting reference FOI/2020/286.

 

Yours sincerely

 

FOI and Privacy Section | Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

p. (02) 6271 5849

e. [1][DPMC request email] | w. [2]www.pmc.gov.au

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

[3]cid:image001.jpg@01D30607.6CF4DA00[4]cid:image002.jpg@01D30607.6CF4DA00[5]cid:image003.jpg@01D30607.6CF4DA00[6]cid:image004.jpg@01D30607.6CF4DA00

[7]Title: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present. -
Description: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present.

 

show quoted sections

Dear FOI,

Thank you for replying, to clarify.

Please regard the 1999 Humanitarian Overseas Service Medal Regulations. Section 4 Eligible service, paragraph (3) states:

"a declaration ... MAY also specify, in relation to the declared operation, conditions about ineligibility for an award of the medal".

Please regard the Acts Interpretation Act 1901. The preliminary states "This Act is like a dictionary and manual to use when reading and interpreting Commonwealth Acts and instruments made under Commonwealth Acts."

Part 7, Section 33 'Exercise of powers, functions and duties'. Paragraph (2A) prescribes that:

"Where an Act ... provides that a person MAY do a particular act or thing, and the word MAY is used, the act or thing may be done at the discretion of the person".

The HOSM regulations delegate two powers to the Assistant Secretary, Awards and Culture Branch. The power to 1) treat a period of service as eligible service, and 2) recommend the award of the medal.

The Regulations governing the medal do not prohibit the medal being awarded to commercial contractors. The Assistant Secretary confirms this and advised government that the regulations:

"allow virtually any class of persons to be determined an eligible group".

Regarding a case in which the medal was awarded to commercial contractors engaged to provide essential services to a humanitarian operation, the Branch advised:

"the case establishes a precedent for extending eligibility to commercial contractors in cases in which the contractors are engaged in Australian humanitarian operations".

Additionally to this precedent, the Foreign Minister advised PM&C that:

"there are precedents to open eligibility of the HOSM to commercial entities where these services are essential to the Government's work."

To clarify our request.

1. We seek a copy of the policy, procedures or rules guiding or related to the discretionary decision prescribed in HOSM Regulations (1999) Section 4, paragraph (3).

Yours sincerely,

Trav S

Dear FOI,

We would be grateful if you can accept this amendment to include the following in our FOI request.

Commonwealth Departments and agencies normally have policies and guidelines to assist and provide guidance to decision makers making discretionary decision.

Can we request a copy of PM&C's policies, rules and guidelines guiding discretionary decision making.

Yours sincerely,

Trav S

FOI, Department of the Prime Minister and Cabinet

6 Attachments

OFFICIAL

FOI/2020/286

 

Dear Trav S

 

Thank you for your email of Wednesday, 13 January 2021, in response to the
Department’s email of Tuesday, 12 January 2021 in which we sought
clarification of your FOI request.

 

We note that you responded to Department’s email of 12 January 2021 on the
same day with a different clarification (see attached email).

 

We note that the documents you have requested in your email of 13 January
2021 (‘a copy of PM&C's policies, rules and guidelines guiding
discretionary decision making’) appear to be substantially identical to
the documents you requested in your email of 18 December 2020 (‘a copy of
the polices and guidelines currently in place to guide PM&C staffs
discretionary decision making’) and in respect of which we sought
clarification.

 

We would be grateful if you could clarify whether we are to take your
email of 12 January 2021 (attached) or your email of 13 January 2021
(below) as the clarification of your FOI request.

 

Your sincerely

 

FOI and Privacy Section | Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

p. (02) 6271 5849

e. [1][DPMC request email] | w. [2]www.pmc.gov.au

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

[3]cid:image001.jpg@01D30607.6CF4DA00[4]cid:image002.jpg@01D30607.6CF4DA00[5]cid:image003.jpg@01D30607.6CF4DA00[6]cid:image004.jpg@01D30607.6CF4DA00

[7]Title: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present. -
Description: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present.

 

show quoted sections

Dear FOI,

Thank you, to clarify.

We seek a copy of the policy/guidelines that relate to informing the discretionary decision prescribed by HOSM Regulation (1999) Section 4, paragraph (3).

If PM&C has more general policy/guidelines guiding discretionary decisions we would also ask for a copy of/or reference to those documents.

Yours sincerely,

Trav S