ADMINISTRATIVE REVIEW TRIBUNAL

PERTH REGISTRY
2024/8950

YLSN
Applicant

DEPARTMENT OF SOCIAL SERVICES

Respondent

SECTION 23 DOCUMENTS

Lodged on behalf of the Respondent File ref: 24011170

Prepared by: Meaghan Préfontaine
AGS lawyer within the meaning of s 55I of the Judiciary Act 1903
Telephone: 02 9581 7519
Address for Service:
Lawyer's Email:
The Australian Government Solicitor
[email protected]
Level 10, 60 Martin Place, SYDNEY NSW 2000
ADMINISTRATIVE REVIEW TRIBUNAL
PERTH REGISTRY
2024/8950

YLSN
Applicant

DEPARTMENT OF SOCIAL SERVICES

Respondent

INDEX TO SECTION 23 DOCUMENTS

Document Document Description Date Page

Number

Statement of reasons for the decision – document under s 23(a) of the Administrative Review
Tribunal Act 2024 (ART Act)
T1 Decision under review – Original decision under 18-06-2024 1–5
the Freedom of Information Act 1982 (FOI Act),
attaching:
a) Schedule of Documents
b) Statement of Reasons for Decision
c) Review rights information
Other documents relevant to Tribunal review under section 23(b) of the ART Act
T2 Email from the Applicant to the Department – FOI 24-05-2024 6
request
T3 Email exchange between Department and the 24-05-2024 to 7–9
Applicant – Acknowledgement of FOI request and 25-05-2024
revision of scope of request
T4 Email from the Department to the Applicant, 31-05-2024 10
attaching:
a) Freedom of Information Request 50588 – 31-05-2024 11 – 12
Notice of intention to refuse pursuant to
s 24AB of the FOI Act
T5 Email from the Applicant to the Department, 04-06-2024 13
attaching:
a) Applicant’s response to s 24AB notice 04-06-2024 14 – 15
T6 Email from Department to the Applicant, regarding 05-06-2024 16 – 17
refined scope of request
T7 Email from the Department to the Applicant, 18-06-2024 18
attaching:
a) Decision under review – Original decision 18-06-2024 NR (at T1)
under the FOI Act
T8 Email from OAIC to the Department and 17-07-2024 19
Applicant, attaching:
a) Notice of IC review application and request 17-07-2024 20 – 26
for documents
 b) Request for Expedited IC Review of “access 04-07-2024 27 – 41
refusal” Decision
c) Email from the Applicant to OAIC attaching 04-07-2024 42
request for expedited IC review at T8.b
above
T9 Email communications between the Department 17-07-2024 to 09- 43 – 49
and the Applicant following commencement of IC 08-2024
review
T10 Email from the Department to the Applicant, 05-09-2024 50 – 51
regarding delay in providing submissions
T11 Email from the Department to OAIC and the 11-09-2024 52 – 53
Applicant, attaching:
a) Respondent’s submissions (attachments not Undated 54 – 58
reproduced)
T12 Email from the Applicant to OAIC, attaching: 08-10-2024 59
a) Applicant’s submissions 08-10-2024 60 – 77
T13 Email from the OAIC to the Applicant, attaching: 23-10-2024 78 – 79
a) Intention to recommend that an Information 23-10-2024 80 – 83
Commissioner review not continue to be
undertaken under s 54W(b) of the Freedom
of Information Act 1982
b) Submission from the Applicant to OAIC in 16-10-2024 84 – 85
support of the IC exercising discretion under
s 54W(b)
T14 Email from the Department to OAIC, regarding no 30-10-2024 86 – 87
further submissions
T15 Email from OAIC to the parties, attaching: 31-10-2024 88 – 89
a) Decision not to continue to undertake an 31-10-2024 90 – 95
Information Commissioner review under s
54W(b) of the Freedom of Information Act
1982
T16 Application for review decision lodged with the 01-11-2024 96 – 107
Administrative Appeals Tribunal (Tribunal),
attaching:
a) Decision under review – Respondent’s 18-06-2024 NR (at T1)
original decision under the FOI Act
b) Notice of Information Commissioner (IC) 17-07-2024 NR (at T8a)
application under s 54Z(b) of the FOI Act
c) Submissions of the Department to the IC Undated NR (at
T11a)
d) IC review decision under s 54W(b) of the FOI 31-10-2024 NR (at
Act T15a)
 Australian Government
Department of Social Services

Jarvis Fisher

Via email to: [email protected]

Dear Mr Fisher,

Freedom of Information Request 50588 – Decision on access

I refer to the Freedom of Information Act 1982 (FOI Act) request made to the Department of Social Services
(Department) on 24 May 2024. The request, which has been revised as a result of a request consultation
process, seeks access to:

All drafts/versions of documents made preparatory to, but not including, the “assessment framework
policy guidelines” made by the Minister under section 33 of the National Redress Scheme for Institutional
Child Sexual Abuse Act 2018.

I am authorised to make decisions in respect of FOI requests under subsection 23(1) of the FOI Act.

Decision

I have decided to refuse access to the documents sought by the request in full as they consist entirely of
material that is conditionally exempt under section 47E(d) (certain operations of an agency) of the FOI Act
and access would be contrary to the public interest.

The documents and my decision in relation to each are set out in the Schedule of Documents at
Attachment A (the Schedule).

The reasons for my decision are set out in the Statement of Reasons at Attachment B.

Review rights and complaints

Information concerning how you may seek a review of this decision or make a complaint about the
handling of this request is at Attachment C.

Contact
If you would like to discuss any aspect of my decision, please contact me at [email protected].

Yours sincerely

Sarah B
Authorised FOI Decision Maker
18 June 2024

1
Attachments
A – Schedule of Documents
B – Statement of Reasons
C – Review rights

2
 STATEMENT OF REASONS

Material on which the decision is based

1. I relied on the following material in coming to this decision:

• the terms of the FOI request;

• the documents subject to the FOI request;
• advice from subject matter experts within the Department regarding the nature and sensitivity
of the documents subject to the request;
• advice from officers of the National Redress Scheme for Institutional Child Sexual Abuse (the
Scheme);
• the FOI Act; and
• the Guidelines issued by the Office of the Australian Information Commissioner under section
93A of the FOI Act (FOI Guidelines).

Section 47E(d) – Adverse effect on the operations of an agency

2. Section 47E(d) of the FOI Act provides that a document is conditionally exempt if its disclosure
would, or could reasonably be expected to have a substantial adverse effect on the proper and
efficient conduct of the operations of an agency. Access to the conditionally exempt document
may only be withheld where it is contrary to the public interest.

3. The documents subject to the request (as identified in the Schedule) consist of drafts of the
Scheme’s Assessment Framework Policy Guidelines (AFPGs) made under the National Redress
Scheme for Institutional Child Sexual Abuse Act 2018 (Redress Act). Section 104 of the Redress Act
creates an offence to disclose the final AFPGs as issued by the Minister where that disclosure is
not authorised under it.

4. While this offence does not extend to the draft AFPGs subject to this request, disclosure of details
of draft AFPGs would still effectively undermine the secrecy provisions that apply to the final. This is
because the draft AFPGs contain information that is either drafted with the intention to create part
of the final or alternatively does form part of the final. Due to the nature of drafting documents,
the draft AFPGs eventually reach a form where they are identical in content to the final, but are not
yet issued to the Minister (ie. it is the form provided to them for issuance).

5. Disclosure of material that would reveal the content of documents subject to a secrecy provision
would cause that secrecy provision to be of nil effect and in this specific matter, have a substantial
adverse effect on the Department’s functions in respect of the Scheme. I am therefore satisfied
that that the documents in their entirety are conditionally exempt under section 47E(d) of the FOI
Act.

6. When considering whether access to this conditionally exempt material is contrary to the public
interest I acknowledge that access would inherently promote the objects of the FOI Act,
demonstrating full transparency of government. However, providing access would undermine the
secrecy provisions under the Redress Act. This adverse effect outweighs any benefit that could flow
from disclosing that information.

7. As a result, I am satisfied that access to the conditionally exempt information would be contrary
to the public interest, and have decided to withhold access to it.

4
 INFORMATION ON REVIEW RIGHTS

You may seek review of this decision via:

(a) an internal review; or

(b) the Australian Information Commissioner (Information Commissioner).

Internal review

If you apply for internal review, a fresh decision will be made by a different decision-maker within the
Department. An application for internal review must be:

(a) made in writing;

(b) made within 30 days of receiving this letter; and
(c) sent to [email protected].

The application should also include the reasons why you think this decision should be reviewed.

If the internal review decision results in you not being provided access to all of the documents to which
you have requested access, you have the right to seek a further review by the Information
Commissioner.

Information Commissioner review

You can apply for the Information Commissioner to review this decision either immediately or following
an internal review decision. You must apply to the Information Commissioner within 60 days of the
receipt of this decision letter.

Further details on this process can be found on the Information Commissioner’s website at
https://www.oaic.gov.au/.

COMPLAINTS TO THE INFORMATION COMMISSIONER

You may also make a complaint to the Information Commissioner concerning actions taken by the
Department while exercising its powers or performing its functions under the FOI Act.

Further details on this process can be found on the Information Commissioner’s website at
https://www.oaic.gov.au/.

5
From: Jarvis Fisher
To: FOI
Subject: Freedom of Information Request
Date: Friday, 24 May 2024 3:00:54 PM

This request is made pursuant to the Commonwealth FOI Act.

The documents to which this request applies are as follows:
1.       All drafts of documents made preparatory to the finalised version of the “assessment
framework policy guidelines” made by the Minister under section 33 of the National
Redress Scheme for Institutional Child Sexual Abuse Act 2018.
2.       To be clear, I am not requesting a copy of the “assessment framework policy
guidelines” as made by the Minister.
3.       All email chains pertinent to the drafts referred to at (1) above. The scope of this
element of my request is limited to email chains that contain comment on the various
drafts of the guidelines highlighting/recommending changes to drafts of the guidelines
which may include reasoning as to why such alterations should be made.

Sincerely,
Jarvis Fisher

6
From: Jarvis Fisher
To: FOI
Subject: Re: FOI LEX 50588 - Acknowledgement of request [SEC=OFFICIAL]
Date: Saturday, 25 May 2024 3:47:07 PM

Your Ref: FOI LEX 50588

Thank you for your response.

In accord with your request, I agree to the removal from the scope of my FOI request:

• group email addresses used for internal departmental purposes;

• all personal information of members of the public;
• all personal information of non-Senior Executive Service (SES) government staff; and
• all personal information of SES level government staff with the exception of the names of
the Department’s SES staff.

Sincerely,
Jarvis Fisher

On Fri, May 24, 2024 at 1:23 PM FOI <[email protected]> wrote:

Dear Mr Fisher,

I refer to your correspondence received by the Department of Social Services

(Department) on 24 May 2024, in which you requested access under the
Commonwealth Freedom of Information Act 1982 (FOI Act) to:

1. All drafts of documents made preparatory to the finalised version of the

“assessment framework policy guidelines” made by the Minister under section
33 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.

3. All email chains pertinent to the drafts referred to at (1) above. The scope of
this element of my request is limited to email chains that contain comment on the
various drafts of the guidelines highlighting/recommending changes to drafts of
the guidelines which may include reasoning as to why such alterations should be
made.

The decision for this request is currently due on 24 June 2024. This timeframe may be
extended, for example, where the Department decides to consult with third parties. We
will inform you if this occurs.

Removal of certain information from the scope of your request

The Department is seeking your agreement to remove the following information from

7
 the scope of your request:

• group email addresses used for internal departmental purposes;

• all personal information of members of the public;
• all personal information of non-Senior Executive Service (SES) government staff;
and
• all personal information of SES level government staff with the exception of the
names of the Department’s SES staff.

If you agree to the above amendment the names of the Department’s SES staff will be
released where they are present in the documents and do not attract an exemption.

Could you please respond to this email by 27 May 2024 to confirm your agreement to
this change.

Should you have any queries about this matter, please do not hesitate to contact the FOI
team via email at [email protected].

Regards

FOI Officer

Information Law Section

Department of Social Services

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

Note: This email and any attachments may contain confidential or legally privileged information (and neither are waived or lost if this email has
been sent to you by mistake). If you are not the intended recipient, you must not use, disclose, copy or retain it. If you have received it in error,
please let me know by reply email and then delete this email from your system and do not retain any copy. Recipients within DSS should seek
assistance from DSS Legal before disseminating this email to third parties or using this advice for a different matter.

From: Jarvis Fisher <[email protected]>

Sent: Friday, May 24, 2024 3:01 PM

8
To: FOI <[email protected]>
Subject: Freedom of Information Request

This request is made pursuant to the Commonwealth FOI Act.

The documents to which this request applies are as follows:

1.       All drafts of documents made preparatory to the finalised version of the
“assessment framework policy guidelines” made by the Minister under section 33
of the National Redress Scheme for Institutional Child Sexual Abuse Act
2018.

2.       To be clear, I am not requesting a copy of the “assessment framework policy

guidelines” as made by the Minister.

3.       All email chains pertinent to the drafts referred to at (1) above. The scope of
this element of my request is limited to email chains that contain comment on the
various drafts of the guidelines highlighting/recommending changes to drafts of
the guidelines which may include reasoning as to why such alterations should be
made.

Sincerely,

Jarvis Fisher

9
From: FOI
To: Jarvis Fisher
Cc: FOI
Subject: Department of Social Services - FOI LEX 50588 - Practical Refusal Consultation Notice under section 24AB of
the FOI Act [SEC=OFFICIAL]
Date: Friday, 31 May 2024 3:36:58 PM
Attachments: FOI LEX 50588 - s 24AB Notice.pdf

Dear Mr Fisher

Please find attached further correspondence in relation to your request.

Kind regards

Sarah

Freedom of Information section

Legal Services Group
Department of Social Services
E: [email protected]
P: (02) 6146 8333

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

10
 Australian Government
Department of Social Services

Jarvis Fisher

Via email: [email protected]

Dear Mr Fisher

Freedom of Information Request 50588 – Notice of intention to refuse

I refer to the Freedom of Information Act 1982 (FOI Act) request made to the Department of Social
Services (the Department) on 24 May 2024. The request seeks access to the following in relation to the
National Redress Scheme (the Scheme):

1. All drafts of documents made preparatory to the finalised version of the “assessment framework
policy guidelines” made by the Minister under section 33 of the National Redress Scheme for
Institutional Child Sexual Abuse Act 2018.
…
3. All email chains pertinent to the drafts referred to at (1) above. The scope of this element of my
request is limited to email chains that contain comment on the various drafts of the guidelines
highlighting/recommending changes to drafts of the guidelines which may include reasoning as to
why such alterations should be made.

I am authorised to make decisions in respect of FOI requests under subsection 23(1) of the FOI Act.

Practical refusal reason

This request in essence seeks all drafts of the Scheme’s Assessment Framework Policy Guidelines
(AFPGs) made under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Redress
Act) and any email chains that referred to them. The process of drafting the AFPGs was a major initiative
of the Social Services portfolio that spanned around 18 months. We have assessed that there were
multiple iterations and a conservative estimate of 1000 emails generated in respect of them over this
period.

On an estimate that a minimum of 1,020 documents fell within the scope of the request (1000 emails
and 20 drafts), with an average of 2 pages per document, it would take an officer of the Department
6,120 minutes or 102 hours / 13.6 working days to review the documents at a rate of 3 minutes a page.

I consider that the Department has limited capacity to process a request of this size, giving particular
reference to the requirement to undertake rigorous in-depth analysis of each document to ensure that
no information is disclosed that would undermine the secrecy provisions under the Redress Act that
restrict the release of the finalised AFPGs.

In accordance with s 24(1) of the FOI Act, I consider that a practical refusal reason exists in relation to
your request for access to documents. That is, the work involved in processing the request would
substantially and unreasonably divert the resources of the Department from its other operations.

Request consultation process

While not explicitly relevant to the finding that a practical refusal reason exists, I am minded that due to
the operation of secrecy provisions that apply to the finalised AFPGs, there is a low likelihood that any
substantive information regarding drafts of the AFPGs can be released in response to this request.

11
That is, disclosure of details of draft AFPGs would effectively undermine the secrecy provisions that
apply to the finals, attracting an alternate exemption under the FOI Act.

For this reason you may wish to withdraw your request and instead make one that does not seek
information associated with the inner workings of the Scheme.

That said, under section 24(1)(b) of the FOI Act, I am required to provide you with the opportunity to
revise the scope of your request so that a ‘practical refusal reason’ no longer exists.

One way you could achieve this is to refine the scope of your request, for example by limiting the
requests to the final draft and brief that was provided to the Minister for signature.

While refining the scope of the request may remove the practical refusal reason, this does not
necessarily mean that any documents will be released in response to the request and the issues relating
to disclosure of the draft AFPGs and their content remain.

Next steps
Should you wish to revise the request, you must do so within 14 days after the day you are sent this
notice. The 14 day deadline ends at 11:59pm on Tuesday 14 June 2024 by which time you are required
to take one of the below actions. If you are unable to meet this deadline and require an extension of
time to discuss ways to revise the scope of your request, please contact the FOI Section by email at
[email protected].

In accordance with subsection 24AB(6) of the FOI Act, you must, before the end of the 14-day
consultation period, do one of the following by written notice to the department:
a) withdraw the request;
b) make a revised request; or
c) indicate that you do not wish to revise the request.

Please note that under subsection 24AB(7), the request is taken to have been withdrawn at the end of
the 14 day consultation period if:

a) the applicant does not consult the contact person during the consultation period in
accordance with this notice; or
b) the applicant does not do one of the things mentioned in subsection(6) before the end of the
consultation period.

In accordance with subsection 24AB(8) of the FOI Act, the 14-day consultation period is to be
disregarded in calculating the processing period for the request.

Yours sincerely
'

Sarah B
Authorised FOI Decision Maker
31 May 2024

12
From: Jarvis Fisher
To: FOI
Subject: Re: Department of Social Services - FOI LEX 50588 - Practical Refusal Consultation Notice under section
24AB of the FOI Act [SEC=OFFICIAL]
Date: Tuesday, 4 June 2024 7:44:10 AM
Attachments: Response - Notice of Intention to Refuse.pdf

Your Ref: FOI LEX 50588

Attention: Sarah B
Freedom of Information section
Legal Services Group
Department of Social Services

Dear Sarah B

Please refer to attached letter in response to the Notice of Intention to Refuse.

Jarvis Fisher

On Fri, May 31, 2024 at 1:37 PM FOI <[email protected]> wrote:

Dear Mr Fisher

Please find attached further correspondence in relation to your request.

Kind regards

Sarah

Freedom of Information section

Legal Services Group

Department of Social Services

E: [email protected]

P: (02) 6146 8333

The Department of Social Services acknowledges the traditional owners of country throughout
Australia, and their continuing connection to land, water and community.

We pay our respects to them and their cultures, and to Elders both past and present.

13
 Your Ref: FOI LEX 50588

4 June 2024

Attention: Sarah B
Freedom of Information section
Legal Services Group
Department of Social Services

Via email: [email protected]

Dear Sarah B

I refer to your Notice of Intention to Refuse dated 31 May 2024.

In accord with section 24AB(6)(b) of the FOI Act 1982 (‘the FOI Act”) I make a revised FOI
request in the following terms:

All dra s/versions of documents made preparatory to, but not including, the “assessment framework
policy guidelines” made by the Minister under sec on 33 of the Na onal Redress Scheme for
Ins tu onal Child Sexual Abuse Act 2018.

Given that the scope of this revised request removes your estimate of 1000 emails to now only
include your estimate of 20 drafts I trust this removes any justification for practical refusal.

Whilst your comments under the heading “Request consultation process” as to the prospects of
success of my request to access to the drafts were at odds with the purpose of a Notice under
s24AB(2) of the FOI Act, I shall nevertheless make some brief observations with respect to
them.

I do not contend that the Assessment Framework Policy Guidelines (“AFPGs”) are accessible via
an FOI request (section 38(1)(b)(1) and Schedule 3 to the FOI Act).

However, there is a clear distinction between the AFPGs as made by the Minister (and the
statutory protections surrounding them) on the one hand, and Departmental drafts created
preparatory to them on the other (which attract no such statutory protections).

If the legislative intent with respect to the secrecy provisions surrounding the AFPGs had have
been that all documents drafted preparatory to them by the Department were also to attract the
secrecy provisions, it would have been a very simple matter for the legislation to include a
provision precisely to that e ect.

…/2

14
 -2-

By way of example/illustration, consider section 34 of the FOI Act which is in the following
(abbreviated) terms:

34 Cabinet documents

General rules

(1) A document is an exempt document if:

(a) …

(b)…

(c) …

(d) it is a draft of a document to which paragraph (a), (b) or (c) applies (my emphasis)

Given that the legislature did not see fit to include any provision similar to, for example, section
34(1)(d) with respect to the AFPGs, it is impermissible in terms of basic statutory interpretation
to raise an inference that preparatory drafts are subject to the secrecy provisions that in law
apply specifically, and exclusively, to the AFPGs (a distinct singular instrument) issued by the
Minister.

I further wish to raise a wholly separate matter with you in the interests of both transparency and
to seek your advice. For personal reasons I have submitted my FOI request under the
pseudonym “Jarvis Fisher”. I am aware that previous FOI requests to DSS have followed this
course (eg. Request No. 18/19-115).

Could you please advise whether this practice raises any di iculties with my request at this
initial stage, or indeed (if applicable) I should request an internal review of a decision or further
(if you are in a position to answer) should I (if applicable) request a review of a decision by the
Information Commissioner.

I would appreciate your assistance with this latter issue and if you foresee di iculties with my
use of a pseudonym any suggestions you may have to “cure” them.

Sincerely,
Jarvis Fisher

15
From: FOI
To: Jarvis Fisher
Cc: FOI
Subject: FOI LEX 50588 - Request refined [SEC=OFFICIAL]
Date: Wednesday, 5 June 2024 12:08:17 PM

Good afternoon Jarvis

We acknowledge receipt of the refined request for:

1.       All drafts of documents made preparatory to the finalised version of the
“assessment framework policy guidelines” made by the Minister under section 33
of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018.

The FOI clock for this matter has recommenced and its current statutory deadline for decision is
27 June 2024.

Regards

FOI Officer
Information Law Section
Department of Social Services

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

Note: This email and any attachments may contain confidential or legally privileged information (and neither are waived or lost if this email has
been sent to you by mistake). If you are not the intended recipient, you must not use, disclose, copy or retain it. If you have received it in error,
please let me know by reply email and then delete this email from your system and do not retain any copy. Recipients within DSS should seek
assistance from DSS Legal before disseminating this email to third parties or using this advice for a different matter.

From: Jarvis Fisher <[email protected]>

Sent: Tuesday, June 4, 2024 7:44 AM
To: FOI <[email protected]>
Subject: Re: Department of Social Services - FOI LEX 50588 - Practical Refusal Consultation
Notice under section 24AB of the FOI Act [SEC=OFFICIAL]

Your Ref: FOI LEX 50588

Attention: Sarah B
Freedom of Information section
Legal Services Group
Department of Social Services

Dear Sarah B

Please refer to attached letter in response to the Notice of Intention to Refuse.

16
Jarvis Fisher

On Fri, May 31, 2024 at 1:37 PM FOI <[email protected]> wrote:

Dear Mr Fisher

Please find attached further correspondence in relation to your request.

Kind regards

Sarah

Freedom of Information section

Legal Services Group
Department of Social Services
E: [email protected]
P: (02) 6146 8333

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

17
From: FOI
To: Jarvis Fisher
Cc: FOI
Subject: Department of Social Services - FOI LEX 50588 - Decision on access [SEC=OFFICIAL]
Date: Tuesday, 18 June 2024 6:56:49 PM
Attachments: FOI LEX 50588 - Notice of Decision.pdf

Dear Mr Fisher

Please find attached the decision made in response to the Freedom of Information request LEX
50588.

Regards

DSS FOI Team

Freedom of Information | Information Law

Legal Services Group
Department of Social Services
E: [email protected]

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

18
From: OAIC - FOI DR
To: Jarvis Fisher; FOI
Subject: OAIC – MR24/01154 - Notice of IC Review – Agency reference 50588 [SEC=OFFICIAL]
Date: Wednesday, 17 July 2024 4:39:32 PM
Attachments: Request for Expedited IC Review of DSS access refusal decision.msg
Request for IC Review 040724.pdf
MR 24 01154 - 54Z notice to respondent.pdf

Our reference: MR24/01154

Agency reference: 50588

FOI Contact Officer  

Department of Social Services
By email: [email protected]

Jarvis Fisher
By email: [email protected]

IC Review - Notice of commencement

Dear parties,  

Please find attached the notice of commencement for the above referenced IC review.  

Annexure A and B of the attached Notice of IC Review provide information about the obligations of applicants and
respondents during the IC review.  

Kind regards,

Lakshmi Gopinath (she/her)

A/g Assistant Director | Freedom of Information Branch
Office of the Australian Information Commissioner
GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [email protected]

Please note: The OAIC will be revising its IC review procedures commencing 1 July 2024. For more
information about these revised procedures, including new resources to assist applicants and respondents,
see our webpage: Upcoming changes to Information Commissioner review procedure directions
The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection to land, waters and communities.
We pay our respect to First Nations people, cultures and Elders past and present.
Subscribe to Information Matters

Notice:

The information contained in this email message and any attached files may be confidential information, and may
also be the subject of legal professional privilege. If you are not the intended recipient any use, disclosure or
copying of this email is unauthorised. If you received this email in error, please notify the sender by contacting the
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19
  the applicant has 10 business days after receiving the respondent’s submission to
share their submission with the OAIC and the respondent.

Annexure A has more information for applicants about the engagement process and sharing
submissions.

Annexure B has more information for respondents about the engagement process and
sharing submissions.

Request for information from respondent

Table A of the Directions as to certain procedures to be followed by agencies and ministers in

IC reviews sets out the information the respondent must provide to the OAIC. Please provide
the information outlined in Table A that relates to this review.

Respondents can comply with this notice by delivering the response to [email protected] by
28 August 2024. I
Obligations during the IC review process

The obligations of the respondent during the IC review process are set out under:

 ss 55D, 55DA and 55Z of the FOI Act

 Part 10 the Guidelines issued under s 93A of the FOI Act, which agencies and
ministers must have regard to when performing a function or exercising a power
under the FOI Act

 Direction as to certain procedures to be followed by agencies and ministers in IC

reviews issued under s 55(2)(e)(i) of the FOI Act.

The obligations of the applicant during the IC review process are set out under:

 Part 10 the Guidelines issued under s 93A of the FOI Act

 Direction as to certain procedures to be followed by applicants in Information

Commissioner reviews issued under s 55(2)(e)(i) of the FOI Act.

2
21
 Yours sincerely

Assistant Director
Freedom of Information Branch
Office of the Australian Information Commissioner

[Enclosed: IC review application and decision under review].

17 July 2024

3
22
 Annexure A: Further information for applicants

The procedure that applicants are to follow in IC reviews is set out in Direction as to certain
procedures to be followed by applicants in Information Commissioner reviews. The below
summarises your the obligations to engage with respondents, and provide submissions to
both the OAIC and respondents.

Obligation for you to engage

The respondent must initiate engagement with you and make reasonable attempts to
engage.1 The engagement aims to resolve or narrow the issues in dispute in the IC review.

Engagement could involve a phone call or video conference between you and the
respondent. You can tell the respondent if they would prefer to engage another way.2

The respondent must demonstrate to the OAIC what they have done to engage with you to
resolve or narrow the issues in dispute in the IC review. If the respondent does not take
sufficient actions to engage with you, the OAIC will direct them to engage further.3

If you fail to participate in the engagement process (without reasonable excuse), the OAIC
may decide to not continue the IC review. This will be on the ground you have failed to
cooperate in progressing the IC review without reasonable excuse.4 The OAIC will warn you if
we are considering this possibility and give you the opportunity to respond.

We expect that you and the respondent will engage in the IC review process with respect and
courtesy.5

Sharing submissions between you and the respondent

If respondents make a submission in support of their FOI decision, they must send their
submission to you at the same time as sending them to the OAIC. You can then make a
submission in response. You will have 10 business days to make a submission about why you

1
Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.17]
--------------------------------------------------
2
Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.19]

3
Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.20]

4
Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.21]

5
Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.23]

4
23
 disagree with the respondent, and you are required to send your submission to the
respondent at the same time as sending to the OAIC.6

When it sends its submission to you and the OAIC, the respondent should remind you that
you then have 10 business days to make your submission.

The OAIC will generally proceed with making an IC review decision on the basis of the
evidence respondents provide in response to this notice, and any submissions the parties
make. If you do not make submissions when an opportunity to do so has been provided, the
OAIC may make a final decision without giving any further opportunity to make
submissions.7

You can ask the OAIC to make a submission in confidence. Your request must give reasons
why you want to make a confidential submission and the OAIC will consider those reasons
and decide whether to accept the submission on a confidential basis. If the OAIC agrees to
treat a submission confidentially, you will generally be required to provide a second version
of the submission which can be shared.8

6
Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.27]

7
Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.28]

8
Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.30]

5
24
 Annexure B: Further information for respondents

The procedure that respondents are to follow in IC reviews is set out in Direction as to certain
procedures to be followed by agencies and ministers in IC reviews. The below summarises
the obligations of respondents to engage with applicants, and provide submissions to both
the OAIC and applicants.

Obligation for respondents to engage

Respondents are required to engage make reasonable attempts to engage with applicants.9
The engagement should aim to resolve or narrow the issues in dispute in the IC review.

Engagement may comprise a phone call or video conference between the respondent and
the applicant. The OAIC will not be involved in arranging or attending these.10 Applicants can
tell respondents if they would prefer to engage another way.11

Respondents must prove the OAIC with information to demonstrate the actions they have
taken to engage the applicant to resolve or narrow the issues in dispute in the IC review.12
The IC has published a checklist to assist agencies and ministers provide relevant
information relating to the agency or minister’s engagement with the applicant during the IC
review: see IC Review Practice Documents.

The OAIC will advise the respondent if they consider the respondent should undertake
further engagement with the applicant during the IC review.13

If applicants fail to participate in the engagement process (without reasonable excuse), the
OAIC may decide to not continue their IC reviews.14

9
Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.8]

10
Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3. 9]

11
Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.10]

12
Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.11]

13
Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.13]

14
Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.21]

6
25
 We expect that applicants and respondents will engage in the IC review process with respect
and courtesy.15

Sharing submissions between the respondent and applicant

If respondents make submissions in support of their FOI decisions, they must send their
submissions to applicants at the same time as sending them to the OAIC.16 Respondents
should include prominent reminders in covering correspondence that applicants will have
10 business days from the date of receiving the correspondence to make submissions.

Applicants will be required to send their submissions to respondents at the same time as
they are sent to the IC.17

Respondents should be aware that if they do not make submissions when an opportunity to
do so has been provided, reviews may proceed to a decision under s 55K of the FOI Act
without any further opportunity to make submissions. Respondents should not expect the
opportunity for further submissions. Any request for extensions of time should only be made
where exceptional circumstances can be demonstrated. This is because extensions of time
will only be granted in exceptional circumstances.18

The OAIC will not accept submissions in confidence without a prior request. Any request for
confidentiality must be accompanied by reasons to support such a claim, including whether
the submission would reveal the contents of the documents at issue. Where the OAIC accepts
a submission in confidence, respondents must provide an open version of the submission to
the IC review applicant.19

15
Direction as to certain procedures to be followed by applicants in Information Commissioner reviews [2.23]

16
Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.23]

17
Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.23]

18
Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.24-5]

19
Direction as to certain procedures to be followed by agencies and ministers in IC reviews [3.26-7]

7
26
4 July 2024

O ice of the Australian Information Commissioner

Via email: [email protected]

Request for Expedited IC Review of “access refusal” Decision1

By letter dated 18 June 2024 the Department of Social Services (DSS) refused access to all documents
identified as being within the scope of my FOI application. 2

I request, pursuant to s54L of the FOI Act that the Information Commissioner (IC) undertake an
expedited review of the Department’s access refusal decision. The grounds for expedition of the IC
Review are set out below – I request a very prompt reply as to whether the IC accepts my request for
expedition.

I am well aware that the IC recommends that an applicant first seek an internal review by an Agency
prior to requesting an IC review. I have given this due consideration. However, the extraordinary
incompetence exhibited by DSS in dealing with my application (as set out at length in my submissions
for review) leads to the inescapable conclusion that nothing of substance would be achieved by an
internal review.

Background to Decision by DSS

By letter dated 31 May 2024, entitled “Notice of intention to refuse” the Decision Maker (DM) set out the
grounds for a “Practical refusal” of my FOI request.3 My understanding was that such a Notice would be
in a form complying with the relevant provision in the FOI Act (s24AB(2)).4

I note that a Notice conveying a “practical refusal” is a preliminary step in dealing with an FOI
application.5 6 It is to be expected that a DM at such an early stage in dealing with an application would
have an “open mind” as to the merits of the request.

However the DM saw fit to comment in strong adverse terms as to the prospects of my application at
this preliminary stage: “While not explicitly relevant to the finding that a practical refusal reason exists, I
am minded that due to the operation of secrecy provisions that apply to the finalised AFPGs

1
s54L(2)(a) FOI Act (In the interests of transparency I declare to your O ice that in all communications with the
DSS and in this Request I am using the pseudonym “Jarvis Fisher” for personal reasons).
2
Attachment A at page 5.
3
Ibid at page 1.
4
See further OAIC FOI Guidelines 3.127-3.130 inclusive.
5
The DSS Freedom of Information (FOI) Policy at page 9 contains a Table in which “practical refusal” is stated to
be dealt with during Days 11-18 prior to the stage of decision making.
6
The Notice of Intention to Refuse with the commentary as to likely failure of the request was received 31 May – a
mere 7 days after receipt of acknowledgment of the request on 24 May.

27
 Page |2

(Assessment Framework Policy Guidelines), there is a low likelihood that any substantive information
regarding drafts of the AFPGs can be released in response to this request”. 7

This constitutes a clear breach of the bias rule8 by the DM in that she clearly had a preconceived view;
that is, actual negative bias toward my application.

Grounds for Expedition of this IC Review

My application relates to documentation held by DSS concerning draft documents pertaining to the
National Redress Scheme (NRS). The NRS will cease to operate in under three (3) years time.9

It is a matter of record that there is a substantial backlog in IC Reviews with many outstanding after a
number of years.10 Should expedition of this review not be granted there is a significant prospect that
even if the DSS decision is reversed by the IC, the impending cessation of the NRS would make access
to the documents otiose.

Further, this review involves a novel issue. As is set out in my submissions below, the DSS decision rests
squarely on the secrecy provisions surrounding the AFPGs in order to deny access to draft documents
that attract no such secrecy or protective provisions. At its core this requested review tests the power of
the FOI Act to penetrate a policy of secrecy within DSS that is without legal foundation.

I turn to my submissions founding this request for IC review of the access refusal decision.

1 Identification of Documents within the scope of the Request

1.1. Section 24A of the FOI Act requires that “all reasonable steps” be taken to identify documents
the subject of the request. By letter dated 24 May 2024 the DM stated that: “The process of
drafting the AFPGs was a major initiative of the Social Services portfolio that spanned around
18 months. We have assessed that there were multiple iterations and … estimate that a
minimum of 1,020 documents fell within the scope of the request (1000 emails and 20
drafts)”11(my emphasis).

1.2. Yet by contrast the letter from the DM notifying access refusal only identifies seven (7) drafts in
the “Schedule of Documents”.12 No reason for the inconsistency is provided. It is di icult to
accept that a “major initiative” spanning “18 months” undertaken by DSS produced only 7
draft documents. The search for documents that fall within the scope of my request must
again be undertaken (in a thorough manner) to precisely identify the draft documents to which
I request access.

1.3. I further note that the “Schedule of Documents”, specifically in Column 3 which is headed
“Decision” each entry is in the following terms: “Section 47E(d) – material that if disclosed
would undermine e ectiveness of secrecy provision”. Section 47E(d) of the FOI Act bears no

7
Attachment A, page 1.
8
OAIC Guideline 3.18.
9
s193 National Redress Scheme for Institutional Child Sexual Abuse Act 2018
10
Australian Information Commissioner and Privacy Commissioner, Budget Estimates Hansard, 23 May 2023, p.
120.
11
Attachment A, page 1.
12
Ibid, page 7.

“To take liberty with a famous saying of Aldous Huxley: confidentiality resides in the minds of public employees and it is in the minds that the battle
for transparency will be won”

28
 Page |3

relation to “secrecy provisions”. It is concerned only with “… a substantial adverse e ect on

the proper and e icient conduct of the operations of an agency”.

2 Failure to correctly construe AFPGs “secrecy provisions”

2.1 The DM’s “Statement of Reasons” (SoRs) are replete with references to the secrecy of the
AFPGs. I do not contend that the AFPGs are accessible via an FOI request (section 38(1)(b)(1)
and Schedule 3 to the FOI Act).

2.2 However, there is a clear distinction between the AFPGs as made by the Minister (and the
statutory protections surrounding them) on the one hand, and Departmental drafts created
preparatory to them on the other (which attract no such statutory protections).

2.3 If the legislative intent with respect to the secrecy provisions surrounding the AFPGs had have
been that all documents drafted preparatory to them by the Department were also to attract
the secrecy provisions, it would have been a very simple matter for the legislation to include a
provision precisely to that e ect.

2.4 By way of example/illustration, consider section 34 of the FOI Act which is in the following
(abbreviated) terms:

34 Cabinet documents
General rules
(1) A document is an exempt document if:
(a) …
(b)…
(c) …
(d) it is a draft of a document to which paragraph (a), (b) or (c) applies (my emphasis)

2.5 Given that the legislature did not see fit to include any provision similar to, for example,
section 34(1)(d) with respect to the AFPGs, it is impermissible in terms of basic statutory
interpretation to raise an inference that preparatory drafts are in any way subject to the explicit
secrecy provisions that in law apply specifically, and exclusively, to the AFPGs (a distinct
singular instrument) issued by the Minister.

3 Departmental drafts of documents do not compromise the secrecy of the AFPGs

3.1 The thrust of the SoRs for drafts being conditionally exempt is that:

… disclosure of details of draft AFPGs would still e ectively undermine the secrecy provisions
that apply to the final. This is because the draft AFPGs contain information that is either drafted
with the intention to create part of the final or alternatively does form part of the final.
…

Disclosure of material that would reveal the content of documents subject to a secrecy
provision would cause that secrecy provision to be of nil e ect and in this specific matter, have
a substantial adverse e ect on the Department’s functions in respect of the Scheme.13

13
Attachment A, page 8.

“To take liberty with a famous saying of Aldous Huxley: confidentiality resides in the minds of public employees and it is in the minds that the battle
for transparency will be won”

29
 Page |4

3.2 The use of the phrase “draft AFPGs”, whilst perhaps a term of art within DSS, is misleading. As
set out at (2) above, the AFPGs are a singular instrument issued by the Minister. The draft
documents identified by the Department bear no legal connexion with the AFPGs.

3.3 The contention that release of the drafts would reveal elements of what would become the
AFPGs cannot be sustained. It is only those o icers legally authorised to access the AFPGs that
could identify which parts (if any) of drafts are contained in the AFPGs. Release of the drafts
pursuant to my request would do no more than inform members of the public of what was
considered possibly suitable to be included in the AFPGs themselves. As a member of the
public has no access to the AFPGs the release of drafts would at most lead to unfounded
guesswork of what is in the AFPGs. That is no basis for refusal in whole or part.

3.4 Further, the assertion by the DM that “Disclosure of material that would reveal the content of
documents subject to a secrecy provision would cause that secrecy provision to be of nil e ect”
is absurd on its face. My request presents no such threat to the confidentiality of the AFPGs.
There is no basis, as outlined at 3.3 above, that disclosure of drafts could possibly reveal to a
member of the public any of the content of the AFPGs, in the absence of the capacity to
compare drafts to the AFPGs.

3.5 It is the case, therefore, that no question of “undermining” the secrecy provisions surrounding
the AFPGs arises.

3.6 I am aware that the Government, in responding to the 2nd Anniversary review of the National
Redress Scheme that recommended the publication of the AFPGs have refuted such
recommendations on the grounds that it could lead to fraudulently “framed” applications.14 I
express no view on the merits of that matter. I merely raise it to anticipate any similar argument
being raised in relation to release of the drafts.

3.7 Again, any person who sought to use drafts to inform their Redress application would be
engaging in mere guesswork. Sections of drafts that were deleted, redrafted etc would lead
them into error – the release of drafts cannot possibly attribute any certainty to a member of the
public as to the content and form of the AFPGs.

4. Failure to Address Required Factors in Deciding “Conditional Exemption”

4.1 I note at the outset OAIC FOI Guideline 3.182, headed “Reasons for Decision”:

The reasons should show a rational connection between the findings of material
fact, the decision maker’s understanding of the relevant statutory provisions and the
decision itself. Where a statutory provision requires an agency to be satisfied that
disclosure of a document would result in a substantial adverse e ect, it is not
su icient for an agency to simply declare that a substantial adverse e ect will occur
without any further details or reasons. Similarly, it is not enough for the decision
maker to state that he or she is satisfied that a document or parts of a document is
exempt. Agencies must provide adequate justification as to why an exemption
applies by reference to the provisions in the FOI Act, having regard to these
Guidelines.

14
The Australian Government response to the Final Report of the Second Year Review of the National Redress
Scheme, pp12-13.

“To take liberty with a famous saying of Aldous Huxley: confidentiality resides in the minds of public employees and it is in the minds that the battle
for transparency will be won”

30
 Page |5

4.2 Paragraph 5 of the SORs includes the following statement by the DM: “I am therefore satisfied
that that (sic) the documents in their entirety are conditionally exempt under section 47E(d) of
the FOI Act”.

4.3 Section 47E(d) of the FOI Act provides as follows:

47E Public interest conditional exemptions—certain operations of

agencies
A document is conditionally exempt if its disclosure under this Act
would, or could reasonably be expected to, do any of the
following:
…
(d) have a substantial adverse e ect on the proper and e icient conduct of the operations
of an agency.

4.4 The OAIC publishes an FOI resource for Agencies entitled “FOI Essentials”. Part 4, Clause 7 sets
out that an Agency should: “If claiming a conditional exemption, make sure the facts establish
the elements of the conditional exemption”. The SoRs are characterised by a marked absence
of any findings of fact whatsoever to support the conditional exemption. This in itself (taking into
account OAIC FOI Guideline 3.182 above) constitutes a failure in that the reasons in favour of a
conditional exemption are not grounded upon a factual matrix as required.

4.5 Further, Guideline 6.101 provides, relevantly, as follows:

6.101 For the grounds in ss 47E(a)–(d) to apply, the predicted e ect needs to be
reasonably expected to occur … There must be more than merely an assumption or
allegation that damage may occur if the document were to be released.

4.6 Contrary to 6.101 the SoRs rest on a mere assumption that release of the documents will have
a substantial adverse e ect on the operations of the agency – yet no elucidation of what the
nature of the “substantial adverse e ect” is provided.

4.7 OAIC FOI Guideline 6.103 sets out:

6.103 An agency cannot merely assert that an e ect would occur following
disclosure. The particulars of the predicted e ect should be identified during the
decision making process, including whether the e ect could reasonably be expected
to occur. Where the conditional exemption is relied upon, the relevant particulars and
reasons should form part of the decision maker’s statement of reasons …

4.8 Contrary to 6.103 the DM asserts an e ect of disclosure yet fails to identify the particulars of the
alleged e ect, the likelihood of the alleged e ect occurring and any evidence to support the
purported e ect or the likelihood of it eventuating.

4.9 Guideline 6.123 sets out:

The predicted e ect must bear on the agency’s ‘proper and e icient’ operations, that
is, the agency is undertaking its expected activities in an expected manner …

“To take liberty with a famous saying of Aldous Huxley: confidentiality resides in the minds of public employees and it is in the minds that the battle
for transparency will be won”

31
 Page |6

4.10 Contrary to 6.123 the DM does not set out how the alleged e ect bears on the proper and
e icient operations of DSS.

5 Failure to assess the “public interest” to the required standard

5.1 In determining whether disclosure of the drafts was in the public interest the DM, extraordinarily,
resolved the matter in 2 sentences in paragraph 6 of the SoRs:

I acknowledge that access would inherently promote the objects of the FOI Act,
demonstrating full transparency of government. However, providing access
would undermine the secrecy provisions under the Redress Act.

5.2 It is self-evident that this is a wholly deficient assessment of the public interest matter.

5.3 OAIC FOI Guideline 6.19 sets out a non-exhaustive list of public interest factors weighing in
favour of disclosure. The following selected factors should have been addressed by the DM:

Public interest factors favouring disclosure

(a) promotes the objects of the FOI Act, including to:
i. inform the community of the Government’s operations, including, in
particular, the policies, rules, guidelines, practices and codes of conduct
followed by the Government in its dealings with members of the
community
…
iii. enhance the scrutiny of government decision making
(b) inform debate on a matter of public importance, including to:
i. allow or assist inquiry into possible deficiencies in the conduct or
administration of an agency or o icial
…

5.4 Likewise, Guideline 6.22 contains a non-exhaustive list of factors weighing against disclosure. I
am unable to identify any of those factors as being relevant to the draft documents.

5.5 Guideline 6.24 sets out irrelevant considerations that must not be considered in determining
the public interest. It appears the DM has given weight to two such irrelevant considerations:

 access to the document could result in any person misinterpreting or

misunderstanding the document
…
 access to the document could result in confusion or unnecessary debate

That concludes my submissions as to why the access refusal decision by DSS was wholly in error,
deficient and ought be reversed to give unfettered access to all drafts the subject of my FOI application.

I look forward to your response.

Sincerely,

(Jarvis Fisher)

“To take liberty with a famous saying of Aldous Huxley: confidentiality resides in the minds of public employees and it is in the minds that the battle
for transparency will be won”

32
 2/9

That is, disclosure of details of draft AFPGs would effectively undermine the secrecy provisions that
apply to the finals, attracting an alternate exemption under the FOI Act.

For this reason you may wish to withdraw your request and instead make one that does not seek
information associated with the inner workings of the Scheme.

That said, under section 24(1)(b) of the FOI Act, I am required to provide you with the opportunity to
revise the scope of your request so that a ‘practical refusal reason’ no longer exists.

One way you could achieve this is to refine the scope of your request, for example by limiting the
requests to the final draft and brief that was provided to the Minister for signature.

While refining the scope of the request may remove the practical refusal reason, this does not
necessarily mean that any documents will be released in response to the request and the issues relating
to disclosure of the draft AFPGs and their content remain.

Next steps
Should you wish to revise the request, you must do so within 14 days after the day you are sent this
notice. The 14 day deadline ends at 11:59pm on Tuesday 14 June 2024 by which time you are required
to take one of the below actions. If you are unable to meet this deadline and require an extension of
time to discuss ways to revise the scope of your request, please contact the FOI Section by email at
[email protected].

In accordance with subsection 24AB(6) of the FOI Act, you must, before the end of the 14-day
consultation period, do one of the following by written notice to the department:
a) withdraw the request;
b) make a revised request; or
c) indicate that you do not wish to revise the request.

Please note that under subsection 24AB(7), the request is taken to have been withdrawn at the end of
the 14 day consultation period if:

a) the applicant does not consult the contact person during the consultation period in
accordance with this notice; or
b) the applicant does not do one of the things mentioned in subsection(6) before the end of the
consultation period.

In accordance with subsection 24AB(8) of the FOI Act, the 14-day consultation period is to be
disregarded in calculating the processing period for the request.

Yours sincerely
'

Sarah B
Authorised FOI Decision Maker
31 May 2024

34
 3/9

Your Ref: FOI LEX 50588

4 June 2024

Attention: Sarah B
Freedom of Information section
Legal Services Group
Department of Social Services

Via email: [email protected]

Dear Sarah B

I refer to your Notice of Intention to Refuse dated 31 May 2024.

In accord with section 24AB(6)(b) of the FOI Act 1982 (‘the FOI Act”) I make a revised FOI
request in the following terms:

All dra s/versions of documents made preparatory to, but not including, the “assessment framework
policy guidelines” made by the Minister under sec on 33 of the Na onal Redress Scheme for
Ins tu onal Child Sexual Abuse Act 2018.

Given that the scope of this revised request removes your estimate of 1000 emails to now only
include your estimate of 20 drafts I trust this removes any justification for practical refusal.

Whilst your comments under the heading “Request consultation process” as to the prospects of
success of my request to access to the drafts were at odds with the purpose of a Notice under
s24AB(2) of the FOI Act, I shall nevertheless make some brief observations with respect to
them.

I do not contend that the Assessment Framework Policy Guidelines (“AFPGs”) are accessible via
an FOI request (section 38(1)(b)(1) and Schedule 3 to the FOI Act).

However, there is a clear distinction between the AFPGs as made by the Minister (and the
statutory protections surrounding them) on the one hand, and Departmental drafts created
preparatory to them on the other (which attract no such statutory protections).

If the legislative intent with respect to the secrecy provisions surrounding the AFPGs had have
been that all documents drafted preparatory to them by the Department were also to attract the
secrecy provisions, it would have been a very simple matter for the legislation to include a
provision precisely to that e ect.

…/2

35
 4/9
-2-

By way of example/illustration, consider section 34 of the FOI Act which is in the following
(abbreviated) terms:

34 Cabinet documents

General rules

(1) A document is an exempt document if:

(a) …

(b)…

(c) …

(d) it is a draft of a document to which paragraph (a), (b) or (c) applies (my emphasis)

Given that the legislature did not see fit to include any provision similar to, for example, section
34(1)(d) with respect to the AFPGs, it is impermissible in terms of basic statutory interpretation
to raise an inference that preparatory drafts are subject to the secrecy provisions that in law
apply specifically, and exclusively, to the AFPGs (a distinct singular instrument) issued by the
Minister.

I further wish to raise a wholly separate matter with you in the interests of both transparency and
to seek your advice. For personal reasons I have submitted my FOI request under the
pseudonym “Jarvis Fisher”. I am aware that previous FOI requests to DSS have followed this
course (eg. Request No. 18/19-115).

Could you please advise whether this practice raises any di iculties with my request at this
initial stage, or indeed (if applicable) I should request an internal review of a decision or further
(if you are in a position to answer) should I (if applicable) request a review of a decision by the
Information Commissioner.

I would appreciate your assistance with this latter issue and if you foresee di iculties with my
use of a pseudonym any suggestions you may have to “cure” them.

Sincerely,
Jarvis Fisher

36
 5/9

Australian Government
Department of Social Services

Jarvis Fisher

Via email to: [email protected]

Dear Mr Fisher,

Freedom of Information Request 50588 – Decision on access

I refer to the Freedom of Information Act 1982 (FOI Act) request made to the Department of Social Services
(Department) on 24 May 2024. The request, which has been revised as a result of a request consultation
process, seeks access to:

All drafts/versions of documents made preparatory to, but not including, the “assessment framework
policy guidelines” made by the Minister under section 33 of the National Redress Scheme for Institutional
Child Sexual Abuse Act 2018.

I am authorised to make decisions in respect of FOI requests under subsection 23(1) of the FOI Act.

Decision

I have decided to refuse access to the documents sought by the request in full as they consist entirely of
material that is conditionally exempt under section 47E(d) (certain operations of an agency) of the FOI Act
and access would be contrary to the public interest.

The documents and my decision in relation to each are set out in the Schedule of Documents at
Attachment A (the Schedule).

The reasons for my decision are set out in the Statement of Reasons at Attachment B.

Review rights and complaints

Information concerning how you may seek a review of this decision or make a complaint about the
handling of this request is at Attachment C.

Contact
If you would like to discuss any aspect of my decision, please contact me at [email protected].

Yours sincerely

Sarah B
Authorised FOI Decision Maker
18 June 2024

37
 6/9

Attachments
A – Schedule of Documents
B – Statement of Reasons
C – Review rights

38
 8/9

STATEMENT OF REASONS

Material on which the decision is based

1. I relied on the following material in coming to this decision:

• the terms of the FOI request;

• the documents subject to the FOI request;
• advice from subject matter experts within the Department regarding the nature and sensitivity
of the documents subject to the request;
• advice from officers of the National Redress Scheme for Institutional Child Sexual Abuse (the
Scheme);
• the FOI Act; and
• the Guidelines issued by the Office of the Australian Information Commissioner under section
93A of the FOI Act (FOI Guidelines).

Section 47E(d) – Adverse effect on the operations of an agency

2. Section 47E(d) of the FOI Act provides that a document is conditionally exempt if its disclosure
would, or could reasonably be expected to have a substantial adverse effect on the proper and
efficient conduct of the operations of an agency. Access to the conditionally exempt document
may only be withheld where it is contrary to the public interest.

3. The documents subject to the request (as identified in the Schedule) consist of drafts of the
Scheme’s Assessment Framework Policy Guidelines (AFPGs) made under the National Redress
Scheme for Institutional Child Sexual Abuse Act 2018 (Redress Act). Section 104 of the Redress Act
creates an offence to disclose the final AFPGs as issued by the Minister where that disclosure is
not authorised under it.

4. While this offence does not extend to the draft AFPGs subject to this request, disclosure of details
of draft AFPGs would still effectively undermine the secrecy provisions that apply to the final. This is
because the draft AFPGs contain information that is either drafted with the intention to create part
of the final or alternatively does form part of the final. Due to the nature of drafting documents,
the draft AFPGs eventually reach a form where they are identical in content to the final, but are not
yet issued to the Minister (ie. it is the form provided to them for issuance).

5. Disclosure of material that would reveal the content of documents subject to a secrecy provision
would cause that secrecy provision to be of nil effect and in this specific matter, have a substantial
adverse effect on the Department’s functions in respect of the Scheme. I am therefore satisfied
that that the documents in their entirety are conditionally exempt under section 47E(d) of the FOI
Act.

6. When considering whether access to this conditionally exempt material is contrary to the public
interest I acknowledge that access would inherently promote the objects of the FOI Act,
demonstrating full transparency of government. However, providing access would undermine the
secrecy provisions under the Redress Act. This adverse effect outweighs any benefit that could flow
from disclosing that information.

7. As a result, I am satisfied that access to the conditionally exempt information would be contrary
to the public interest, and have decided to withhold access to it.

40
 9/9

INFORMATION ON REVIEW RIGHTS

You may seek review of this decision via:

(a) an internal review; or

(b) the Australian Information Commissioner (Information Commissioner).

Internal review

If you apply for internal review, a fresh decision will be made by a different decision-maker within the
Department. An application for internal review must be:

(a) made in writing;

(b) made within 30 days of receiving this letter; and
(c) sent to [email protected].

The application should also include the reasons why you think this decision should be reviewed.

If the internal review decision results in you not being provided access to all of the documents to which
you have requested access, you have the right to seek a further review by the Information
Commissioner.

Information Commissioner review

You can apply for the Information Commissioner to review this decision either immediately or following
an internal review decision. You must apply to the Information Commissioner within 60 days of the
receipt of this decision letter.

Further details on this process can be found on the Information Commissioner’s website at
https://www.oaic.gov.au/.

COMPLAINTS TO THE INFORMATION COMMISSIONER

You may also make a complaint to the Information Commissioner concerning actions taken by the
Department while exercising its powers or performing its functions under the FOI Act.

Further details on this process can be found on the Information Commissioner’s website at
https://www.oaic.gov.au/.

41
From: Jarvis Fisher
To: OAIC - FOI DR
Subject: Request for Expedited IC Review of DSS access refusal decision
Date: Thursday, 4 July 2024 11:34:08 AM
Attachments: Request for IC Review 040724.pdf

CAUTION: This email originated from outside of the organisation. Do not click links or open
attachments unless you recognise the sender and know the content is safe.

Please find attached a consolidated document (which includes an attachment) requesting

expedited IC review.

As noted in the document I have set out grounds as to why this review should be
expedited. Whilst I understand the request for IC review will be accepted in the normal
manner, I request a prompt response as to whether the IC accepts my submission for
expedition.

Thank you,
(Jarvis Fisher)

42
From: Jarvis Fisher
To: FOI
Cc: OAIC - FOI DR
Subject: Re: OAIC – MR24/01154 - Notice of IC Review – Agency reference 50588 [SEC=OFFICIAL]
Date: Friday, 9 August 2024 10:06:10 AM

I take exception to you putting words in my mouth.

My previous email was very clear. However you fail to comprehend what I set out either via incompetence or willing bad
faith.

Sincerely,
Jarvis Fisher.

On Fri, Aug 9, 2024 at 6:24 AM FOI <[email protected]> wrote:

Dear Mr Fisher

The original decision sets out why the documents subject to the request attracted the conditional exemption under section
47E(d) and access was contrary to the public interest. I’ve re-attached the decision again, the reasons are set out on page 4. The
public interest test is addressed at paragraph 6 on that page.

It seems to us that the question as to whether there is shared content between a draft document and a final document is a
relevant consideration in this instance, particularly as it is at the heart of the reasons for the Department’s initial decision.
However, our understanding of your position is that even where the draft AFPGs are identical to the final AFPGs, they should not
be considered exempt under the FOI Act due to a lack of protection under the Redress Act.

Let us know if you have any questions or have any clarifications for the above.

Regards

FOI Officer

Information Law Section

Department of Social Services

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

Note: This email and any attachments may contain confidential or legally privileged information (and neither are waived or lost if this email has been sent to you by mistake). If you are not the
intended recipient, you must not use, disclose, copy or retain it. If you have received it in error, please let me know by reply email and then delete this email from your system and do not retain
any copy. Recipients within DSS should seek assistance from DSS Legal before disseminating this email to third parties or using this advice for a different matter.

From: Jarvis Fisher <[email protected]>

Sent: Friday, August 9, 2024 2:41 AM
To: FOI <[email protected]>
Cc: OAIC - FOI DR <[email protected]>
Subject: Re: OAIC – MR24/01154 - Notice of IC Review – Agency reference 50588 [SEC=OFFICIAL]

You have now asked the same question three times, but appear not to grasp why it is of no consequence.

43
 You concede that the draft supplied to the Minister's Office does not attract secrecy provisions. Whether the draft
supplied by DSS to the Minister's Office bears any similarity to the AFPGs as issued by the Minister is unknown except
to a person who has access to both. It may be that the Minister's office completely redrafted the submission from DSS. A
Minister's office is not a mere "rubber stamp" for departmental submissions.

You reiterate that you rely upon s47E(d) for a conditional exemption yet have made no effort whatsoever to address why
release of the drafts would: "have a substantial adverse effect on the proper and efficient conduct of the operations of an
agency". This reflects the approach you took in the original decision. Nor have you addressed the question of the public
interest. And again you have not addressed the discrepancy in the number of draft documents within the scope of the
request - originally identified as being 20 documents but reduced to 7 in the decision without explanation.

If this was an internal review OAIC Guideline 9.35 would directly apply: "To the extent that it is possible, the internal
review decision-maker should be senior to the original decision-maker and not involved in making the original
decision". In my view the same principle should apply to an external review by the IC.

It appears to me, however, that the anonymous person I am corresponding with is not senior to the original decision-
maker, nor possibly a different person to the original decision maker.

If DSS wishes to consult with me on this matter I ask that a person with sufficient expertise on the FOI Act and the
Guidelines, in conjunction with having thoroughly considered my submissions to the OAIC conduct the consultation.
Repeatedly asking me the same question does not satisfy that threshold.

Sincerely,

Jarvis Fisher.

On Thu, Aug 8, 2024 at 8:12 AM FOI <[email protected]> wrote:

Good morning Mr Fisher

We agree that the drafts of the AFPGs are not subject to the secrecy provisions under the Redress Act. The decision was that
they were conditionally exempt under section 47E(d), and that access to them would be contrary to the public interest. I have
re-attached the decision to this email for your reference – you may note on page 1 it states:

I have decided to refuse access to the documents sought by the request in full as they consist entirely of material that
is conditionally exempt under section 47E(d) (certain operations of an agency) of the FOI Act and access would be
contrary to the public interest.

We otherwise feel that our enquiry was not adequately addressed, and this is does go to the heart of the decision.

To ask again, would you agree that the final draft of the AFPGs - the version provided to the Minister for signature - would, in
most cases, be identical to the final AFPGs signed by the Minister?

In your response you do not need to expand on the applicability of the secrecy provisions under the Redress Act – the
decision found that they did not apply to drafts.

Regards

44
FOI Officer

Information Law Section

Department of Social Services

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

Note: This email and any attachments may contain confidential or legally privileged information (and neither are waived or lost if this email has been sent to you by mistake). If you are not the
intended recipient, you must not use, disclose, copy or retain it. If you have received it in error, please let me know by reply email and then delete this email from your system and do not
retain any copy. Recipients within DSS should seek assistance from DSS Legal before disseminating this email to third parties or using this advice for a different matter.

From: Jarvis Fisher <[email protected]>

Sent: Wednesday, August 7, 2024 9:16 AM
To: FOI <[email protected]>
Subject: Re: OAIC – MR24/01154 - Notice of IC Review – Agency reference 50588 [SEC=OFFICIAL]

Attn: FOI Officer

I have addressed your question squarely - drafts do not attract the legal protection surrounding the AFPGs.

If you are going to claim conditional exemption under s47E(d) of the FOI Act you will need to properly address the
two elements required.

Sincerely.,

Jarvis Fisher

On Wed, Aug 7, 2024 at 6:12 AM FOI <[email protected]> wrote:

Good morning Mr Fisher

As you are aware, the decision subject to this review did not find that disclosure of the AFPGs amounted to an offence
under the Redress Act, nor did it find the documents exempt under section 38 FOI Act. Rather, it was a decision to exempt
the drafts of the AFPGs under section 47E(d), finding that disclosure of material drafted with the intention to form part of
the AFPGs would undermine the protections afforded under that Act due to the shared content between a draft and final
document.

The decision says at paragraph 4:

While this offence does not extend to the draft AFPGs subject to this request, disclosure of details of draft AFPGs
would still effectively undermine the secrecy provisions that apply to the final. This is because the draft AFPGs

45
 contain information that is either drafted with the intention to create part of the final or alternatively does form
part of the final. Due to the nature of drafting documents, the draft AFPGs eventually reach a form where they are
identical in content to the final, but are not yet issued to the Minister (ie. it is the form provided to them for
issuance).

With that addressed, would you agree that the final draft of the AFPGs - the version provided to the Minister for signature -
would, in most cases, be identical to the final AFPGs signed by the Minister?

Regards

FOI Officer

Information Law Section

Department of Social Services

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

Note: This email and any attachments may contain confidential or legally privileged information (and neither are waived or lost if this email has been sent to you by mistake). If you are not
the intended recipient, you must not use, disclose, copy or retain it. If you have received it in error, please let me know by reply email and then delete this email from your system and do
not retain any copy. Recipients within DSS should seek assistance from DSS Legal before disseminating this email to third parties or using this advice for a different matter.

From: Jarvis Fisher <[email protected]>

Sent: Wednesday, August 7, 2024 2:32 AM
To: FOI <[email protected]>
Cc: OAIC - FOI DR <[email protected]>
Subject: Re: OAIC – MR24/01154 - Notice of IC Review – Agency reference 50588 [SEC=OFFICIAL]

Attn: "FOI Officer"

It appears from your question that you have either not read, or alternatively have not understood my submission in
this respect for IC Review.

Point 2 (and following) from that submission addresses your question.

The NRS Act (s.104) together with s 38(1)(b)(1) and Schedule 3 to the FOI Act make clear that the AFPGs as
issued by the Minister are not to be disclosed to other than authorised officers.

However, there is no reference in either statute to draft documents (cf s.34(1)(d) FOI Act).

Your question, which runs contrary to my submissions, poses: "To clarify your position, would you agree that the final
draft of the AFPGs - the version provided to the Minister for signature - would, in most cases, be identical to the final
AFPGs signed by the Minister?". The suggestion appears to be that a draft document (that has no statutory protection from
disclosure) supplied to the Minister by DSS would attract statutory protection if it was identical to the AFPGs issued by the
Minister. This is contrary to the provisions I have set out above.

It was open to the legislature to include within the NRS Act and the FOI Act that draft documents created for the purpose
of becoming the AFPGs were not to be disclosed. The legislature did not enact any such provision.

46
DSS cannot "create" secrecy provisions in the absence of statutory authority. Yet it appears that is precisely what you are
attempting to do.

Sincerely,

Jarvis Fisher.

On Mon, Aug 5, 2024 at 3:29 PM FOI <[email protected]> wrote:

Good afternoon Mr Fisher

Thank you for contacting us. We note your preference that engagement occur via email below.

It seems that the difference of opinion on the application of exemptions under the FOI Act would turn, in part, on our
opinions as to whether parts of a draft document could make it into the final document.

To clarify your position, would you agree that the final draft of the AFPGs - the version provided to the Minister for
signature - would, in most cases, be identical to the final AFPGs signed by the Minister?

Regards

FOI Officer

Information Law Section

Department of Social Services

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

Note: This email and any attachments may contain confidential or legally privileged information (and neither are waived or lost if this email has been sent to you by mistake). If you are
not the intended recipient, you must not use, disclose, copy or retain it. If you have received it in error, please let me know by reply email and then delete this email from your system
and do not retain any copy. Recipients within DSS should seek assistance from DSS Legal before disseminating this email to third parties or using this advice for a different matter.

From: Jarvis Fisher <[email protected]>

Sent: Thursday, July 18, 2024 10:08 AM
To: FOI <[email protected]>
Cc: OAIC - FOI DR <[email protected]>

47
 Subject: Fwd: OAIC – MR24/01154 - Notice of IC Review – Agency reference 50588 [SEC=OFFICIAL]

Your Ref: 50588

OAIC Ref: MR24/01154

FOI Contact Officer  

Department of Social Services

By email: [email protected]

Re: IC Review - Notice of commencement (dated 17/07/24 - below)

In accord with the OAIC "Direction as to certain procedures to be followed by applicants in Information
Commissioner reviews" clause 2.19 I give notice that all engagement with me in respect of the IC Review be
conducted exclusively via email.

Sincerely.

(Jarvis Fisher)

---------- Forwarded message ---------

From: OAIC - FOI DR <[email protected]>
Date: Wed, Jul 17, 2024 at 2:39 PM
Subject: OAIC – MR24/01154 - Notice of IC Review – Agency reference 50588 [SEC=OFFICIAL]
To: Jarvis Fisher <[email protected]>, [email protected] <[email protected]>

Our reference: MR24/01154

Agency reference: 50588

FOI Contact Officer  

Department of Social Services

By email: [email protected]

Jarvis Fisher

By email: [email protected]

IC Review - Notice of commencement

48
Dear parties,  

Please find attached the notice of commencement for the above referenced IC review.  

Annexure A and B of the attached Notice of IC Review provide information about the obligations of applicants
and respondents during the IC review.  

Kind regards,

Lakshmi Gopinath (she/her)

A/g Assistant Director | Freedom of Information Branch

Office of the Australian Information Commissioner

GPO Box 5288 Sydney NSW 2001

P 1300 363 992 E [email protected]

Please note: The OAIC will be revising its IC review procedures commencing 1 July 2024. For more information
about these revised procedures, including new resources to assist applicants and respondents, see our webpage:
Upcoming changes to Information Commissioner review procedure directions

The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection to land, waters and communities. We pay
our respect to First Nations people, cultures and Elders past and present.

Subscribe to Information Matters

Notice:

The information contained in this email message and any attached files may be confidential information, and may
also be the subject of legal professional privilege. If you are not the intended recipient any use, disclosure or
copying of this email is unauthorised. If you received this email in error, please notify the sender by contacting
the department's switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra time) and delete
all copies of this transmission together with any attachments.

49
From: FOI
To: Jarvis Fisher
Cc: WHITE, Emma; WORSWICK, Bronwyn; FOI
Subject: RE: Information Commissioner review - failure to comply [SEC=OFFICIAL:Sensitive]
Date: Thursday, 5 September 2024 1:24:32 PM

Dear Mr Fisher

Thank you for your below correspondence.

On 27 August 2024 the Department sought an extension of time from the OAIC to respond to
the review MR24/01154.

We anticipate that our submission will be provided on or by 11 September 2024. You will receive
a copy of the submission when it is made.

Regards

Alan Hilvert-Bruce
Principal Legal Officer
Information Law Section
Department of Social Services

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

Note: This email and any attachments may contain confidential or legally privileged information (and neither are waived or lost if this email has
been sent to you by mistake). If you are not the intended recipient, you must not use, disclose, copy or retain it. If you have received it in error,
please let me know by reply email and then delete this email from your system and do not retain any copy. Recipients within DSS should seek
assistance from DSS Legal before disseminating this email to third parties or using this advice for a different matter.

From: Jarvis Fisher <[email protected]>

Sent: Thursday, September 5, 2024 3:59 AM
To: WORSWICK, Bronwyn <[email protected]>
Cc: GRIGGS, Ray <[email protected]>
Subject: Information Commissioner review - failure to comply

DSS ref: LEX 50588

The Information Commissioner (IC) notified your Department of an IC review on July 17

regarding an FOI access refusal decision.

The Department was directed by the IC to provide submissions to both the IC and myself as
the applicant by 28 August - an ample period of time

Your Department has failed to comply with that direction.

50
Please immediately direct the FOI Branch (for which you are accountable) to comply with
the IC direction without delay.

Sincerely,
Jarvis Fisher.

51
From: FOI
To: OAIC - FOI DR; Jarvis Fisher
Cc: FOI
Subject: OAIC – MR24/01154 - LEX 51138 - Department"s submission [SEC=OFFICIAL]
Date: Wednesday, 11 September 2024 12:08:08 PM
Attachments: MR24-01154 - LEX 51138 - Submission to IC.pdf
MR24-01154 - LEX 51138 - Submission to IC - Attachment A.pdf

Good afternoon OAIC team and Mr Fisher

Please find attached the Department’s submission in respect of this matter.

Regards

FOI Officer
Information Law Section
Department of Social Services

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

Note: This email and any attachments may contain confidential or legally privileged information (and neither are waived or lost if this email has been sent to you by mistake). If you are not
the intended recipient, you must not use, disclose, copy or retain it. If you have received it in error, please let me know by reply email and then delete this email from your system and do
not retain any copy. Recipients within DSS should seek assistance from DSS Legal before disseminating this email to third parties or using this advice for a different matter.

From: OAIC - FOI DR <[email protected]>

Sent: Wednesday, July 17, 2024 4:39 PM
To: Jarvis Fisher <[email protected]>; FOI <[email protected]>
Subject: OAIC – MR24/01154 - Notice of IC Review – Agency reference 50588 [SEC=OFFICIAL]

Our reference: MR24/01154

Agency reference: 50588

FOI Contact Officer  

Department of Social Services
By email: [email protected]

Jarvis Fisher
By email: [email protected]

IC Review - Notice of commencement

Dear parties,  

Please find attached the notice of commencement for the above referenced IC review.  

Annexure A and B of the attached Notice of IC Review provide information about the obligations of applicants and
respondents during the IC review.  

Kind regards,

Lakshmi Gopinath (she/her)

A/g Assistant Director | Freedom of Information Branch
Office of the Australian Information Commissioner
GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [email protected]

Please note: The OAIC will be revising its IC review procedures commencing 1 July 2024. For more
information about these revised procedures, including new resources to assist applicants and respondents,
see our webpage: Upcoming changes to Information Commissioner review procedure directions
The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection to land, waters and communities.
We pay our respect to First Nations people, cultures and Elders past and present.
Subscribe to Information Matters

52
Notice:

The information contained in this email message and any attached files may be confidential information, and may
also be the subject of legal professional privilege. If you are not the intended recipient any use, disclosure or
copying of this email is unauthorised. If you received this email in error, please notify the sender by contacting the
department's switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra time) and delete all
copies of this transmission together with any attachments.

53
 Australian Government
Department of Social Services

Our Ref: LEX 51138

Lakshmi Gopinath
Assistant Director
Office of the Australian Information Commissioner

By email: [email protected]

Dear Lakshmi

MR24/01154 – Response to request for information

1. I refer to the ‘Notice of IC review application and request for documents’ dated 17 July 2024 to the
Department of Social Services (Department). The review at issue relates to a primary decision
made by the Department on 18 June 2024 (Decision) under the Freedom of Information Act 1982
(FOI Act).

Request for Information

2. The notice requested the provision of certain documents prescribed in Table A of the Direction as
to certain procedures to be followed by agencies and ministers in Information Commissioner
reviews:

• The original FOI request and any correspondence with the FOI applicant that modifies the
scope of the FOI request;

• Copies of correspondence including file notes of relevant telephone conversations between

the respondent and anyone consulted;

• A marked up, unredacted copy of the documents at issue where material claimed to be
exempt is highlighted with reference to the exemptions applied;

• Submissions in support of the exemptions claimed, including the application of s 11B of the FOI
Act in relation to conditional exemptions, in the form prescribed by the Information
Commissioner; and

• If any third parties are notified of the IC review, a copy of the written notifications under s 54P.

3. In response please find attached:

• The original FOI request, notice of practical refusal, correspondence from the applicant
refining the scope of the request and the Decision at Attachment A;

• As the Department’s view is that the documents contain information that is in the assessment
framework policy guidelines as defined under section 33 of the National Redress Scheme for
Institutional Child Sexual Abuse Act 2018 (Redress Act), it is not required to provide them to
the OAIC as part of this review as per sections 105(1)(b) and 105(6) of that Act. Accordingly
copies of the documents are not enclosed with this response.

• No third parties were consulted as part of the request subject to this review, and therefore no
section 54P notices have been issued or enclosed with this response.

• A submission in support of the Department’s position is below.

54
Grounds of review

4. The applicant has sought review of the Decision on the following grounds:

• conditional exemption under section 47E(d) was not validly applied; and
• the searches conducted for documents were inadequate.

Submission

5. The Department:

• has revised its position on the applicability of section 38 of the FOI Act, now submitting that
the documents subject to this request are exempt under section 38 of the FOI Act to the
extent that they are identical, substantially similar to or otherwise communicate the same
information as the assessment framework policy guidelines (AFPGs);

• maintains its position that the documents subject to this request are conditionally exempt
under section 47E(d) and access to them would be contrary to the public interest;

• further submits that the documents subject to this request are conditionally exempt under
section 47C and access to them would be contrary to the public interest; and

• contends that the document searches conducted for this request were comprehensive and
adequate.

6. Our reasons are explained below.

The draft AFPGs are exempt under section 38 of the FOI Act to the extent they contain information that
is in the final AFPGs

7. Under section 33(2) of the Redress Act, the Minister may, in writing, make guidelines for the
purposes of applying the Redress assessment framework. These guidelines are called the
assessment framework policy guidelines (AFPGs).

8. Disclosure of information contained in the AFPGs without authorisation is an offence under

section 104 of the Redress Act. The Explanatory Memorandum for the National Redress Scheme
for Institutional Child Sexual Abuse Bill 2018 provided that the enactment of the section 104
offence (or secrecy provision) was necessary:

…to ensure that the assessment framework policy guidelines are appropriately protected from
unauthorised use and disclosure, as the guidelines provide additional matters that the Operator
may take into account when applying the assessment framework (clauses 32 and 33), which may
contain graphic and triggering descriptions of abuse. Further, protecting the assessment
framework policy guidelines from unauthorised use and disclosure will assist with mitigating the
risk of fraudulent and enhanced applications, as unauthorised disclosure of the National Redress
Scheme for Institutional Child Sexual Abuse Bill 2018 guidelines could enable people to understand
how payments are attributed and calculated.

9. The request at issue seeks all drafts of the AFPGs. The Department considers the request to
capture any version of the AFPGs that have been written, but not yet made by the Minister.

10. The process that led to the Minister to making the AFPGs involved the Department developing and
drafting the AFPGs, and once a final draft was settled, providing it to the Minister. The Minister
then proceeded to make the AFPGs in the same form as the final draft by applying their signature
and date to it.
55
11. As the OAIC is aware, section 38 of the FOI Act provides in part that a document is exempt where it
is subject to a secrecy provision specified in Schedule 3. The relevant secrecy provision at issue,
section 104, is specified in Schedule 3, and accordingly documents that are subject to the section
104 secrecy provision are also exempt under section 38 of the FOI Act.

12. While the Department did not contend that the draft AFPGs were subject to the section 104
secrecy provision at the primary decision and in communication with the applicant at the
commencement of this review, it has revised its position. The Department now submits that as the
section 104 secrecy provision extends to information contained in the AFPGs, it then follows that
the draft AFPGs are also exempt under section 38 to the extent that they also contain information
that is in the AFPGs.

13. While the term “contained in” the AFPGs is not defined in the Redress Act, the Department
submits that the use of the term causes the applicability of section 104 to apply to more than the
AFPGs or extract of the AFPGs, but also extends to protect the disclosure of information that is
identical, substantially similar to, summarises or otherwise communicates the same information as
the content of the AFPGs. That is, if a document relays information that is shared by the AFPGs, it
would attract protection under section 104 Redress Act, even in cases where the information is
not an exact duplicate or extract of the AFPGs.

14. This wholistic approach to protecting the content and effect of the AFPGs is consistent with the
intent of the section 104 Redress Act, which has been expressly enacted to prevent unauthorised
disclosure of material that would reveal matters considered by the Operator or other information
that would enable people to understand how payments are attributed and calculated.

15. While we have not undertaken a line-by-line comparison between the final AFPGs and the drafts
sought by this request, we can advise that Documents 1 to 6 are substantially similar in form and
content to the final AFPGs as is commonplace with multiple iterations of the same document. We
have been instructed that the final draft provided to the Minister, Document 7, is identical to the
AFPGs as made by the Minister but lacking their Minister’s signature and date of signature.

16. Given the significant amount of information in the draft AFPGs that is identical, substantially
similar to, summarises or otherwise communicates the same information as the content of the
final AFPGs, the Department submits that the section 104 offence applies to the draft AFPGs to the
extent that they contain that information, and that they are therefore exempt under section 38 of
the FOI Act to that same extent.

17. As we have not completed a line-by-line comparison of the draft AFPGs to the final, we are not
able at this time to definitively say whether any part of the draft AFPGs could be disclosed without
also revealing information that is contained in the AFPGs.

18. That said, given the significant amount of shared information between the draft and final APFGs, it
would take significant resources to first ascertain whether it is possible, and (if it were) then
prepare edited versions with the exempt information removed. It is also likely that any edited copy
would have extensive exemptions only leaving information that does not reflect the final AFPGs in
any meaningful way (ie. it would be information that is not contained in the AFPGs as per the
definition in paragraph 13 above).

19. For this reason the Department submits that it is not reasonably practicable to prepare edited
copies of the draft AFPGs and consistent with section of the 22(1)(c) FOI Act. As a result there is no
obligation for the Department to prepare or ascertain if it is possible to prepare edited copies of
the draft AFPGs with exempt matter removed.

56
The documents in full are conditionally exempt under section 47E(d) and access contrary to the public
interest

20. As the OAIC is aware, section 47E(d) of the FOI Act provides that a document is conditionally
exempt if its disclosure would, or could reasonably be expected to have a substantial adverse
effect on the proper and efficient conduct of the operations of an agency. Access to the
conditionally exempt document may only be withheld where it is contrary to the public interest.

21. The Department submits that disclosure of the draft AFPGs would have a substantial adverse
effect on the operations of the Department, in particular the integrity of the Redress legislative
scheme. As advised at paragraph 15, the draft AFPGs share a significant amount of information
with the final AFPGs, as this is the nature of iterative drafts of the same document. Parliament has
a clear intention to prohibit the dissemination of the content of the AFPGs, and this was embodied
by the enactment of a secrecy provision over them.

22. Further to this, the effect of the secrecy provision is not only that the final singular AFPGs are
afforded protections, but also that material peripheral to it should also be afforded a similar level
of protection so not to undermine the intention of parliament. This rationale is similar to that
adopted by the Information Commissioner in both Josh Taylor and Australian Charities and Not-
For-Profits Commission (Freedom of information) [2020] AICmr 13 and Graham Mahony and
Australian Charities and Not-for-profits Commission (Freedom of information) [2019] AICmr 64
where it was accepted that the presence of a secrecy provision was to establish a regulatory
regime where the entity could discharge its regulatory functions in an environment of trust and
engagement.

23. If the draft AFPGs were released in response to this request, it would effectively nullify the effect
of the section 104 secrecy provision, having a substantial adverse effect on the Redress legislative
scheme and its operations, as well as acting in contrast to the intentions of parliament.

24. For the reasons above, the Department submits that disclosure of the draft AFPGs would have a
substantial adverse effect on the Redress legislative scheme, and are therefore conditionally
exempt under section 47E(d) of the FOI Act. The Department submits that the intention of the
section 104 secrecy provision was not to make the content of the AFPGs or material that could
reasonably allow the content of the AFPGs to be ascertained in response to an FOI request.

25. When considering whether access to the draft AFPGs would be contrary to the public interest, the
Department concedes that the strongest public interest factor favouring disclosure is that it would
grant greater transparency to the Redress Scheme, providing insight into not only their
development, but also to participants in the Redress Scheme, receiving information on how their
claims are managed. This public interest factor is enhanced due to the significant media and public
interest in the Redress scheme.

26. However, parliament’s clear intention is to prohibit the disclosure of the material that would
provide this level of insight to the public, including participants. As explained at paragraph 8, the
purpose of the section 104 secrecy provision is to prohibit the disclosure of matters that the
Operator may take into account and how payments are attributed and calculated as part of the
rationale behind the enactment of the secrecy provision. For this reason, it could be argued that
the material that has the greatest public interest in disclosure is that which is contained in the final
AFPGs, and that parliament’s clear intention is to prohibit the disclosure of that material.

57
27. Accordingly, the public interest factor against disclosure, specifically that parliament’s clear
intention is that this material is not to be disclosed, outweighs the public interest factors for
disclosure. For the reasons above, the Department submits that access to the draft AFPGs would
be contrary to the public interest, and access must be withheld to them.

The documents in full are conditionally exempt under section 47C and access contrary to the public
interest

28. As the OAIC is aware, section 47C of the FOI Act provides in part that a document is conditionally
exempt if its disclosure would reveal matter (deliberative matter) in the nature of, or relating to,
opinion, advice or recommendations 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 an agency. Access to the conditionally exempt document
may only be withheld where it is contrary to the public interest.

29. The Department submits that the draft AFPGs are deliberative matter, being in their entirety
opinions or recommendations as to what the content of the final AFPGs should be. They are
therefore conditionally exempt under section 47C of the FOI Act.

30. The Department otherwise submits that access to the AFPGs is contrary to the public interest for
the same reasons as set out at paragraphs 25 to 27 above.

The searches conducted for documents subject to this were adequate

31. The applicant contends that the searches conducted for documents subject to this request were
inadequate. This is based on a statement in a section 24AB notice issued in respect of the request
on 31 May 2024, which advised of an estimate that a minimum of 1,020 documents fell within the
scope of the request (1000 emails and 20 drafts). This notice is at Attachment A.

32. We can advise that the reference to 20 drafts in the notice is due to an administrative error.

33. While developing the section 24AB notice the FOI team approached the relevant business area to
confirm its proposed content, including this reference to “20 drafts”. The reference to “20 drafts”
was an estimate by the FOI team, who did not have direct access to the results of the document
searches conducted thus far.

34. The business area did not agree with the “20 drafts” statement, advising instead that they had
identified multiple drafts. The FOI team proceeded to finalise the notice, but it appears it did not
amend the reference to “20 drafts”. This is why there is an inconsistency between the section
24AB notice and the eventual decision.

35. After the applicant agreed to refine the scope of the request, the Department finalised its searches
and identified a total of 7 draft AFPGs in its possession. The searches for documents were
otherwise comprehensive, and the basis of the practical refusal notice remains valid.

If you require any further information about this matter, please contact the FOI team at
[email protected].

Yours sincerely,

Alan Hilvert-Bruce
Seconded Principal Legal Officer

58
From: Jarvis Fisher
To: OAIC - FOI DR
Cc: FOI
Subject: Attn Lakshmi Gopinath - Submission by Applicant in IC Review MR24/01154
Date: Tuesday, 8 October 2024 3:46:06 PM
Attachments: Submission by Applicant IC Review MR24_01154.pdf

Dear Lakshmi,

Please find attached my submission as applicant in this review. Whilst I understand you
have a heavy workload I would very much appreciate if you would just have a look at the
first couple of paragraphs. They set out my request for expedition of this review and the
grounds upon which I make that request.

Sincerely
(Jarvis Fisher)
  

59
Office of the Australian Information Commissioner

via email: [email protected]

cc: [email protected]

8 October 2024

Submission by Applicant – MR24-01154

Request for Expedition of IC Review

1. I am aware of the pressures the IC is under in catching up on a backlog of IC review

applications. Notwithstanding that I ask that this IC Review be expedited. The ground for
this request is that the National Redress Scheme (NRS) by its statute will cease receiving
applications on 30 June 2027.

2. Given that the Scheme is approaching the end of its life, delay in deciding this IC review
will result, even if the determination is in favour of disclosure of documents, those
documents being of mere historical interest, rather than being released in accord with the
objects of the FOI Act. It is therefore genuinely imperative that this IC Review be
determined promptly, also taking into account that there may be further delay due to either
party initiating further review before the ART that would involve further significant delay.

Respondent’s failure to participate in good faith in the consultation process

3. The IC directed the respondent via the Direction as to certain procedures to be followed by
agencies and ministers in IC reviews and pursuant to ss55D and 55DA of the FOI Act to
initiate a consultation process with myself aimed at “… engag(ing) with the IC review
applicant to resolve or narrow the issues in dispute in the IC review”.1

4. Please find at Attachment A the entirety of the respondent’s attempts, such as they are, to
engage with me to “resolve or narrow” the issues in dispute. Attachment A is replete with
assertions that the respondent does not assert that s38 of the FOI Act is applicable to the
drafts that are the subject of my FOI application. Yet the submission of the respondent
dated 11 September 2024 is primarily focussed (paras 7-19) on the purported application
of s38 to the drafts. This makes a mockery of the consultation process.

Respondent’s failure to have regard to IC Guidelines

5. Guideline 1.2 is in the following terms:

The FOI Act specifies that agencies and ministers must have regard to these
guidelines in exercising powers and functions under the FOI Act, both generally (s 93A)
and specifically in relation to:
…

1
OAIC Direction as to certain procedures to be followed by agencies and ministers in IC reviews at para
3.11

60
 • in working out whether access to a conditionally exempt (sic) would, on balance be contrary
to the public interest (s 11B(5)) (see Part 6 of these Guidelines)
• in making a decision on a request for access to a document of an agency or an official
document of a minister (s 15(5A)) (see Part 3 of these Guidelines).

6. Yet despite the clear legislative requirement that agencies have regard to the Guidelines
the respondent does not mention them, does not cite them and the content of their
submission demonstrates that they have not had regard to them in substance nor detail.

Respondents’ claim draft documents are exempt under s38

7. The respondent claims that drafts of documents created prior to the making of the AFPGs
are subject to the same protection the AFPGs are granted under s38 of the FOI Act. The
respondent uses the phrase “draft AFPGs” throughout its submission. That phrase is a non
sequitur. Section 33 of the NRS Act gives the Minister power to make guidelines which are
to be the “assessment framework policy guidelines”.2

8. The use of the misleading phrase “draft AFPGs” is more than a matter of semantics. In legal
terms there can be no such thing as “draft AFPGs”. The NRS Act and the FOI Act speak only
to the AFPGs. Any draft documents created prior to the making of the AFPGs have no legal
status whatsoever. I submit that the use of the phrase “draft AFPGs” conveys a false
impression that, in legal terms, there is a connection between “draft documents” on the
one hand and “the AFPGs” on the other. On the contrary there is no connection between
the AFPGs, made pursuant to statutory authority, and draft documents created by the
respondent under no legislative authority whatsoever.

9. The respondent suggests at paragraph 13 of their submission that:

While the term “contained in” the AFPGs is not defined in the Redress Act, the Department
submits that the use of the term causes the applicability of section 104 to apply to more
than the AFPGs or extract of the AFPGs, but also extends to protect the disclosure of
information that is identical, substantially similar to, summarises or otherwise
communicates the same information as the content of the AFPGs (emphasis in original)

10. This interpretation of the effect of s104 of the NRS Act is so expansive that it stretches the
plain meaning of the wording of the section beyond that which the English language, never
mind the correct approach to statutory interpretation, well beyond the limits it can bear.

11. Section 104 of the NRS Act is in the following terms:

104 Offence—unauthorised recording, disclosure or use of
assessment framework policy guidelines
A person commits an offence if:
(a) the person:
(i) obtains information; or
(ii) makes a record of information; or
(iii) discloses information to another person; or
(iv) uses information; and
(b) the person is not authorised or required by or under this Act:
(i) to obtain the information; or

2
Section 33(3) National Redress Scheme for Institutional Child Sexual Abuse Act 2018

61
 (ii) to make the record of the information; or (iii) to disclose the information; or
(iv) to use the information; and
(c) the information is contained in the assessment framework
policy guidelines.

12. The respondent correctly notes that the phrase “contained in” in s104(c) is not defined in
the NRS Act yet goes on to give it the most expansive construction possible.

13. In order to arrive at a correct construction of s104 the established canons of statutory
interpretation must be observed. The respondent contends that words to the effect of “and
any drafts” can be “read in” to s104.

14. Case law has considered the circumstances in which words can be “read in” to statutes,
taking into account the overarching statutory interpretation principle as to a purposive
approach set out in s15AA of the Acts Interpretation Act 1901.

15. In Bermingham v Corrective Services Commission of New South Wales3 McHugh JA (as he
then was) suggested that only if certain conditions were adhered to could the ‘reading in’ of
missing words be a legitimate use of the purposive approach:
First, the court must know the mischief with which the Act was dealing. Secondly, the court
must be satisfied that by inadvertence Parliament has overlooked an eventuality which must
be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to
state with certainty what words Parliament would have used to overcome the omission if its
attention had been drawn to the defect.4

16. This approach has been widely applied.5 Further, Spigelman CJ set out in R v Young6 that
any implied meanings derived from a statute must be closely based on the text of the
statute.7

17. In addition, where there is ambiguity as to the ambit of a section of a statute regard can be
had to the heading of the provision in question. In Ragless v Prospect District Council8,
Murray CJ set out that “If the language of a section is doubtful or ambiguous, the meaning
with which the heading is consistent must be adopted”.9

18. Applying these established approaches there can be no doubt that s104 was intended to
apply solely to the Assessment Framework Policy Guidelines as a discrete, singular
instrument as made by the Minister pursuant to s33 of the NRS Act. To the extent that s104
prohibits the disclosure of “information” it is strictly limited, as set out at s104(c) to matter
“contained in the assessment framework policy guidelines”. This will of course encompass

3
(1988) 15 NSWLR 292
4
Ibid at 302
5
See Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 per Mahoney JA, with whom Clarke and
McHugh JJA agreed; Saraswati v The Queen (1991) 172 CLR 1 per McHugh J, with whose judgment
Toohey J agreed; Clarke v Bailey (1993) 30 NSWLR 556 per Kirby P, with whose judgment Sheller JA
agreed; R v Di Maria (1996) 67 SASR 466 per Doyle CJ, with whom Prior and Nyland JJ agreed.
6
(1999) 46 NSWLR 681
7
Ibid at 687-9
8
(1922) SASR 299
9
Ibid at 311

62
 extracts, copies and the like that are specifically from the AFPGs. It cannot, and I submit
does not, extend to draft documents to which no mention is made or permissibly inferred.

19. If the intent of the legislature was to protect draft documents then it would have been a
simple matter to include a provision to that effect. Cf s34 of the FOI Act:

34 Cabinet documents
General rules
(1) A document is an exempt document if:
(a) …
(b) …
(c) … or
(d) it is a draft of a document to which paragraph (a), (b) or (c) applies (my emphasis)

20. I therefore submit on the basis of that set out above, that the respondent’s contention that
the phrase “contained in” casts an extremely wide “net”, including draft documents, for
s104 must be rejected.

Respondent’s claim drafts are conditionally exempt under s47E(d)

21. The respondent at paragraphs 20-27 of their Submission suggests drafts are exempt
pursuant to s47E(d). Their argument in support of this is essentially the same as that put
forward in the original decision Statement of Reasons (SoRs)10 at paragraphs 2-7.

22. I note at the outset Guideline 3.182:

The reasons should show a rational connection between the findings of material fact, the
decision maker’s understanding of the relevant statutory provisions and the decision
itself. Where a statutory provision requires an agency to be satisfied that disclosure of a
document would result in a substantial adverse effect, it is not sufficient for an agency to
simply declare that a substantial adverse effect will occur without any further details or
reasons. Similarly, it is not enough for the decision maker to state that he or she is satisfied
that a document or parts of a document is exempt. Agencies must provide adequate
justification as to why an exemption applies by reference to the provisions in the FOI Act,
having regard to these Guidelines. (my emphasis)

23. Paragraph 24 of the respondent’s submission states that: “For the reasons above, the
Department submits that disclosure of the draft AFPGs would have a substantial adverse
effect on the Redress legislative scheme, and are therefore conditionally exempt under
section 47E(d) of the FOI Act”.

24. Section 47E(d) of the FOI Act provides as follows:

47E Public interest conditional exemptions—certain operations of agencies

A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following: …

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of
an agency.

10
See Attachment B

63
25. The OAIC publishes an FOI resource for Agencies entitled “FOI Essentials”. Part 4, Clause 7
sets out that an Agency should: “If claiming a conditional exemption, make sure the facts
establish the elements of the conditional exemption”. The respondent’s submission is
characterised by a marked absence of any findings of fact whatsoever to support the
conditional exemption. This in itself (taking into account Guideline 3.182 above)
constitutes a failure in that the reasons in favour of a conditional exemption are not
grounded upon a factual matrix as required.

26. Further, Guideline 6.101 provides, relevantly, as follows:

For the grounds in ss 47E(a)–(d) to apply, the predicted effect needs to be reasonably
expected to occur … There must be more than merely an assumption or allegation that
damage may occur if the document were to be released.

27. Contrary to 6.101 the respondent’s submission rests on a mere assumption that release of
the documents will have a substantial adverse effect on the operations of the agency – yet
no elucidation of the nature of the “substantial adverse effect” is provided. The respondent
asserts at paragraph 23 of its submission: “If the draft AFPGs were released in response to
this request, it would effectively nullify the effect of the section 104 secrecy provision,
having a substantial adverse effect on the Redress legislative scheme and its operations”.11
Yet the respondent provides no factual basis whatsoever to support this assertion.

28. Guideline 6.103 sets out:

6.103 An agency cannot merely assert that an effect would occur following disclosure. The
particulars of the predicted effect should be identified during the decision making process,
including whether the effect could reasonably be expected to occur. Where the conditional
exemption is relied upon, the relevant particulars and reasons should form part of the
decision maker’s statement of reasons …

29. Contrary to 6.103 the respondent asserts an effect of disclosure yet fails to identify the
particulars of the alleged effect, the likelihood of the alleged effect occurring nor any
evidence to support the purported effect.

30. Guideline 6.123 sets out that the “… predicted effect must bear on the agency’s ‘proper
and efficient’ operations, that is, the agency is undertaking its expected activities in an
expected manner”. Contrary to 6.123 the respondent fails to set out in any detail with
supporting evidence how the alleged effect bears on its proper and efficient operations.

31. I therefore submit that the respondent manifestly fails to establish the drafts are
conditionally exempt under s47E(d).

11
Curiously, at paragraph 22 the respondent asserts: “the effect of the secrecy provision is not only that
the final singular AFPGs are afforded protections, but also that material peripheral to it should also be
afforded a similar level of protection so not to undermine the intention of parliament. This rationale is
similar to that adopted by the Information Commissioner in both Josh Taylor and Australian Charities
and Not-For-Profits Commission (Freedom of information) [2020] AICmr 13 and Graham Mahony and
Australian Charities and Not-for-profits Commission (Freedom of information) [2019] AICmr 64”. Neither
of the decisions cited adopted an expansive interpretation of a secrecy provision, rather they turned on
protection of confidentiality of information supplied to an agency in circumstances where the
operations of that Agency were dependant on the supply of information under statutory protection in
order to carry out its functions. These decisions are clearly distinguishable from this IC Review.

64
32. For the sake of completeness I will briefly address the respondent’s attempt (at paragraphs
25-27) to satisfy the s11B public interest factors. The sole factor identified by the
respondent against disclosure is that it would allegedly undermine the parliamentary
intent to ensure the confidentiality of the AFPGs and, by apparent extension, drafts. As I
have set out above, release of drafts does not contravene legislative intent. In short, there
exists no factor weighing against disclosure in the public interest.

Respondent’s claim drafts are conditionally exempt under s47C

33. The brevity with which the respondent claims s47C is applicable to drafts adequately
demonstrates this is not a serious argument.

34. Guideline 6.52 sets out that:

Deliberative matter is content that is in the nature of, or relating to either:

• an opinion, advice or recommendation that has been obtained, prepared or recorded, or

• a consultation or deliberation that has taken place, in the course of, or for the purposes
of, a deliberative process of the government, an agency or minister (s 47C(1)).

35. The drafts that I have applied to have access cannot be characterised as being in the
nature an “opinion, advice or recommendation”. That dismisses any claim to conditional
exemption under the first “limb” of s47C(1). Neither can they be correctly characterised as
being a part of a “consultation or deliberation” as a part of a deliberative process. The
ordinary meaning of a “deliberative process” is typically in the nature of the process
employed in reaching a decision on a particular matter. The drafts are clearly not of that
nature.

36. Further, guideline 6.65 states:

The format or class of the document, such as a ministerial brief or submission, or the
document being a draft version of a later document does not automatically designate the
content as deliberative matter.

37. I submit that the drafts do not fall within the scope of s47C.

38. In the event that the IC determines that s47C is relevant, then I submit that there are no
public interest factors against disclosure that can be identified in this matter.12

Adequacy of searches for documents within the scope of the FOI request

39. At paragraphs 31-35 of the respondent’s submission the claim is made that the original
decision maker confused the number of drafts identified by the business area between the
ambiguous “multiple” and the precise identification of “20” as stated in the s24AB notice.
It is worth recalling that the original decision maker stated unequivocally in the s24AB
notice:

The process of drafting the AFPGs was a major initiative of the Social Services portfolio that
spanned around 18 months. We have assessed that there were multiple iterations and …

12
See the Guidelines at paras 6.20-6.22.

65
 estimate that a minimum of 1,020 documents fell within the scope of the request (1000
emails and 20 drafts).13

40. It is difficult to reconcile a major undertaking by the respondent spanning 18 months

producing a mere 7 drafts. As I do not possess any evidence to conclude exactly how many
drafts fall within the scope of my application, I leave it the IC and their powers to resolve
the truth of this matter.

That concludes my submissions as the applicant in this IC Review. Should any further
information be required please do not hesitate to contact me.

Sincerely
(Jarvis Fisher)

13
See Attachment C at p1

66
 Gmail Jarvis Fisher <[email protected]>

OAIC - MR24/01154 - Notice of IC Review-Agency reference 50588

[SEC=OFFICIAL]
Jarvis Fisher <[email protected]> Wed, Aug 7, 2024 at 12:31 AM
To: FOi <[email protected]>
Cc: OAIC - FOi DR <[email protected]>

Attn: "FOi Officer"

It appears from your question that you have either not read, or alternatively have not understood my
submission in this respect for IC Review.

Point 2 (and following) from that submission addresses your question.

The NRS Act (s.104) together withs 38(1 }(b}(1) and Schedule 3 to the FOi Act make clear that the
AFPGs as issued by the Minister are not to be disclosed to other than authorised officers.

However, there is no reference in either statute to draft documents (cf s.34(1 )(d) FOi Act).

Your question, which runs contrary to my submissions, poses: "To clarify your position, would you agree
that the final draft of the AFPGs - the version provided to the Minister for signature - would, in most
cases, be identical to the final AFPGs signed by the Minister?". The suggestion appears to be that a
draft document (that has no statutory protection from disclosure) supplied to the Minister by DSS
would attract statutory protection if it was identical to the AFPGs issued by the Minister. This is
contrary to the provisions I have set out above.

It was open to the legislature to include within the NRS Act and the FOi Act that draft documents
created for the purpose of becoming the AFPGs were not to be disclosed. The legislature did not enact
any such provision.

DSS cannot "create" secrecy provisions in the absence of statutory authority. Yet it appears that is
precisely what you are attempting to do.

Sincerely,
Jarvis Fisher.

[Quoted text hidden]

68
 Gmail Jarvis Fisher <[email protected]>

OAIC - MR24/01154 - Notice of IC Review-Agency reference 50588

[SEC=OFFICIAL]
FOi <[email protected]> Wed, Aug 7, 2024 at 6:12 AM
To: Jarvis Fisher <[email protected]>
Cc: OAIC - FOi DR <[email protected]>, FOi <[email protected]>

Good morning Mr Fisher

As you are aware, the decision subject to this review did not find that disclosure of the AFPGs
amounted to an offence under the Redress Act, nor did it find the documents exempt under section
38 FOi Act. Rather, it was a decision to exempt the drafts of the AFPGs under section 47E(d), finding
that disclosure of material drafted with the intention to form part of the AFPGs would undermine the
protections afforded under that Act due to the shared content between a draft and final document.

The decision says at paragraph 4:

While this offence does not extend to the draft AFPGs subject to this request, disclosure of
details of draft AFPGs would still effectively undermine the secrecy provisions that apply to the
final. This is because the draft AFPGs contain information that is either drafted with the
intention to create part of the final or alternatively does form part of the final. Due to the
nature of drafting documents, the draft AFPGs eventually reach a form where they are
identical in content to the final, but are not yet issued to the Minister (ie. it is the form
provided to them for issuance).

With that addressed, would you agree that the final draft of the AFPGs - the version provided to the
Minister for signature - would, in most cases, be identical to the final AFPGs signed by the Minister?

[Quoted text hidden]

~ FOi LEX 50588 - Notice of Decision.pdf

659K

69
 Gmail Jarvis Fisher <[email protected]>

OAIC - MR24/01154 - Notice of IC Review-Agency reference 50588

[SEC=OFFICIAL]
FOi <[email protected]> Thu, Aug 8, 2024 at 8:12 AM
To: Jarvis Fisher <[email protected]>
Cc: FOi <[email protected]>

Good morning Mr Fisher

We agree that the drafts of the AFPGs are not subject to the secrecy provisions under the Redress Act.
The decision was that they were conditionally exempt under section 47E(d), and that access to them
would be contrary to the public interest. I have re-attached the decision to this email for your
reference - you may note on page 1 it states:

I have decided to refuse access to the documents sought by the request in full as they consist
entirely of material that is conditionally exempt under section 47E{d) (certain operations of an
agency) of the FOi Act and access would be contrary to the public interest.

We otherwise feel that our enquiry was not adequately addressed, and this is does go to the heart of
the decision.

To ask again, would you agree that the final draft of the AFPGs - the version provided to the Minister
for signature - would, in most cases, be identical to the final AFPGs signed by the Minister?

In your response you do not need to expand on the applicability of the secrecy provisions under the
Redress Act - the decision found that they did not apply to drafts.

[Quoted text hidden]

~ FOi LEX 50588 - Notice of Decision.pdf

659K

71
 Gmail Jarvis Fisher <[email protected]>

OAIC - MR24/01154 - Notice of IC Review-Agency reference 50588

[SEC=OFFICIAL]
FOi <[email protected]> Fri, Aug 9, 2024 at 6:23 AM
To: Jarvis Fisher <[email protected]>
Cc: OAIC - FOi DR <[email protected]>, FOi <[email protected]>

Dear Mr Fisher

The original decision sets out why the documents subject to the request attracted the conditional
exemption under section 47E(d) and access was contrary to the public interest. I've re-attached the
decision again, the reasons are set out on page 4. The public interest test is addressed at paragraph 6
on that page.

It seems to us that the question as to whether there is shared content between a draft document and
a final document is a relevant consideration in this instance, particularly as it is at the heart of the
reasons for the Department's initial decision. However, our understanding of your position is that
even where the draft AFPGs are identical to the final AFPGs, they should not be considered exempt
under the FOi Act due to a lack of protection under the Redress Act.

Let us know if you have any questions or have any clarifications for the above.

[Quoted text hidden]

t1 FOi LEX 50588 - Notice of Decision.pdf

659K

73
 Gmail Jarvis Fisher <[email protected]>

OAIC - MR24/01154 - Notice of IC Review-Agency reference 50588

[SEC=OFFICIAL]
Jarvis Fisher <[email protected]> Fri, Aug 9, 2024 at 8:05 AM
To: FOi <[email protected]>
Cc: OAIC - FOi DR <[email protected]>

I take exception to you putting words in my mouth.

My previous email was very clear. However you fail to comprehend what I set out either via incompetence
or willing bad faith.

Sincerely,
Jarvis Fisher.

[Quoted text hidden]

74
That is, disclosure of details of draft AFPGs would effectively undermine the secrecy provisions that
apply to the finals, attracting an alternate exemption under the FOI Act.

For this reason you may wish to withdraw your request and instead make one that does not seek
information associated with the inner workings of the Scheme.

That said, under section 24(1)(b) of the FOI Act, I am required to provide you with the opportunity to
revise the scope of your request so that a ‘practical refusal reason’ no longer exists.

One way you could achieve this is to refine the scope of your request, for example by limiting the
requests to the final draft and brief that was provided to the Minister for signature.

While refining the scope of the request may remove the practical refusal reason, this does not
necessarily mean that any documents will be released in response to the request and the issues relating
to disclosure of the draft AFPGs and their content remain.

Next steps
Should you wish to revise the request, you must do so within 14 days after the day you are sent this
notice. The 14 day deadline ends at 11:59pm on Tuesday 14 June 2024 by which time you are required
to take one of the below actions. If you are unable to meet this deadline and require an extension of
time to discuss ways to revise the scope of your request, please contact the FOI Section by email at
[email protected].

In accordance with subsection 24AB(6) of the FOI Act, you must, before the end of the 14-day
consultation period, do one of the following by written notice to the department:
a) withdraw the request;
b) make a revised request; or
c) indicate that you do not wish to revise the request.

Please note that under subsection 24AB(7), the request is taken to have been withdrawn at the end of
the 14 day consultation period if:

a) the applicant does not consult the contact person during the consultation period in
accordance with this notice; or
b) the applicant does not do one of the things mentioned in subsection(6) before the end of the
consultation period.

In accordance with subsection 24AB(8) of the FOI Act, the 14-day consultation period is to be
disregarded in calculating the processing period for the request.

Yours sincerely
'

Sarah B
Authorised FOI Decision Maker
31 May 2024

77
From: OAIC - FOI DR
To: Jarvis Fisher; FOI
Subject: OAIC – MR24/01154 – s 54W(b) - Recommendation not to continue to undertake an Information
Commissioner review [SEC=OFFICIAL]
Date: Wednesday, 23 October 2024 3:52:43 PM
Attachments: MR24 01154 - 54W(b) - Recommendation not to continue to undertake an Information Commissioner
review.pdf
MR24-01154 Ref to ART.pdf

Our reference: MR24/01154

Agency reference: 50588

Jarvis Fisher
By email: [email protected]

Department of Social Services

By email: [email protected]

Recommendation not to continue to undertake an Information

Commissioner review under s 54W(b) of the FOI Act

Dear parties,

Please find attached correspondence in relation to this Information Commissioner review.

If you disagree with the proposed recommendation, please write to us by 6 November 2024 and
advise us of your reasons.  

If you require assistance regarding this email, please contact us at [email protected].

Please quote the reference MR24/01154 in all correspondence.

Kind regards,
Sarveshcika Yuvaraj (she/her)
Paralegal | FOI Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [email protected]
Please note: The OAIC has revised its IC review procedures from 1 July 2024. For more
information about these revised procedures, including new resources to assist
applicants and respondents, see our webpage: Information Commissioner reviews |
OAIC

The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection
to land, waters and communities. We pay our respect to First Nations people, cultures and Elders past and
present.

Subscribe to Information Matters

Notice:

78
The information contained in this email message and any attached files may be
confidential information, and may also be the subject of legal professional privilege. If you
are not the intended recipient any use, disclosure or copying of this email is unauthorised.
If you received this email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra time) and
delete all copies of this transmission together with any attachments.

79
 • AustrallanGcwernment

• Office of the Australlan Information Commissioner

6. This is also referred to in the Guidelines issued by the Australian Information Commissioner
under s 93A (FOI Guidelines) at [10.104] and [10.105], which states:

The Information Commissioner may decline to undertake a review if satisfied ‘that the interests of
the administration of the [FOI] Act make it desirable’ that the AAT consider the IC reviewable
decision (s 54W(b)). It is intended that the Information Commissioner will resolve most IC review
applications. Circumstances in which the Information Commissioner may decide that it is desirable
for the AAT to consider the IC reviewable decision instead of the Information Commissioner
continuing with the IC review include:2

• where the IC review is linked to ongoing proceedings before the AAT or a court
• where there is an apparent inconsistency between earlier IC review decisions and AAT
decisions
• where, should the application progress to an IC review decision, the IC review decision is likely
to be taken on appeal to the AAT on a disputed issue of fact
• where the FOI decision under review is of a level of complexity that it will be more
appropriately handled through the procedures of the AAT
• where there may be a perceived or actual conflict of interest in the Information Commissioner
undertaking the IC review, including where:
- the FOI request under review was made to, or decided by, the Information
Commissioner or their delegate
- the FOI request or material at issue relate to specific functions exercised by the
Information Commissioner under the Privacy Act
- the applicant has active matters in other forums, including the AAT or Federal Court
and the Information Commissioner is the respondent
• where consideration by the AAT would further the objects of the FOI Act, particularly in relation
to the performance and exercise of functions and powers given by the FOI Act to facilitate and
promote public access to information, promptly and at the lowest reasonable cost (s 3(4)).

7. However, the circumstances in which the Information Commissioner may consider it

desirable that the ART consider the IC review application, as outlined in the FOI Guidelines
above, are not exhaustive. There will be circumstances that are not listed where the
Information Commissioner may deem it desirable to refer the matter to the ART.

Reasons for recommendation

8. In this IC review, it appears that it may be in the interests of the efficient administration of the
FOI Act that that a delegate of the Information Commissioner exercises the discretion to
decide not to continue to undertake an IC review under s 54W(b) of the FOI Act because:

2
See McKinnon and Department of Immigration and Citizenship [2012] AICmr 34

81
 • AustrallanGcwernm:ent

• Office of the Australian Information Commhsfoner

• The applicant contends the material related to the FOI decision under review is of a
level of complexity that may be more appropriately handled through the alternative
dispute resolution procedures of the ART.

• The applicant contends that the objectives of the FOI Act, particularly the facilitation
of public access to information, would be better achieved by the ART. The applicant
submits that the ART will be more ‘prompt’ in delivering its decision, which is
necessary in this case as a timely decision relating to the documents at issue is needed
to facilitate legislative reform.

Next steps

9. The Office of the Information Commissioner (OAIC) may take into account the views of the
parties to an IC review before concluding an IC review pursuant to s 54W(b). While the
Information Commissioner will consider the views of the review parties before finalising an IC
review under s 54W(b), the decision whether it is more appropriate for the ART to consider the
IC reviewable decision ultimately rests with the Information Commissioner. Through the
functions conferred on the Information Commissioner under the FOI Act, the Information
Commissioner will be in the most informed position to determine whether the interests of the
administration of the FOI Act make it desirable for the ART to consider the IC reviewable
decision.

10. If you disagree with this proposed recommendation, please write to us by 6 November 2024
and advise us of your reasons. If you agree with the proposed recommendation, you are not
required to respond. However, should either party wish to provide additional information for
consideration by the Information Commissioner, or a delegated member of staff, you may do
so by the abovementioned date.

9. If more time is needed, a request for an extension of time must be made to the OAIC at the
earliest opportunity within the period provided for response, and no later than 2 days before
that period is due to expire. Requests for more time must explain the exceptional
circumstances that necessitate additional time and propose a new date for response.
Approval of an extension request is at the discretion of the OAIC.

11. The parties will be notified and provided review rights if the IC review is finalised under s 54W(b)
of the FOI Act.

Yours sincerely,
Michelle Corcoran
Review Advisor
Freedom of Information Branch
Office of the Australian Information Commissioner

82
 • AustrallanGcwernm:ent

• Office of the Australian Information Commhsfoner

23 October 2024

83
O ice of the Australian Information Commissioner

OAIC Ref: MR24-01154

via email: [email protected]

Submission in support of the IC exercising discretion under s54W(b)

Background

1. Section 54W(b) of the FOI Act confers a discretion on the IC:

The Information Commissioner may decide not to undertake an IC review, or not to continue to
undertake an IC review, if:
…
(b) the Information Commissioner is satisfied that the interests of the administration of this Act make
it desirable that the IC reviewable decision be considered by the Tribunal if satisfied that the interests
of the administration of this Act make it desirable that the IC reviewable decision be considered by the
Tribunal

2. Guideline 10.104 sets out, relevantly for this submission:

Circumstances in which the IC may decide that it is desirable for the ART to consider the IC
reviewable decision instead of the IC continuing with the IC review include:
…
where the FOI decision under review is of a level of complexity that it will be more
appropriately handled through the procedures of the ART
…
where consideration by the ART will further the objects of the FOI Act, particularly in
relation to the performance and exercise of functions and powers given by the FOI Act
to facilitate and promote public access to information, promptly and at the lowest
reasonable cost (s 3(4))

Complexity

3. The respondent has contended in this matter that where a single document is subject to a secrecy
provision1 that the provision should be given an expansive statutory interpretation to encompass all
draft documents which, the respondent contends, are therefore subject to s38 of the FOI Act and
consequently Schedule 3. On this basis the respondent has refused to give access to drafts to the
IC contrary to s55T of the FOI Act.

4. The argument put forward by the respondent, if upheld, may set a precedent that the secrecy that
applies to any document created under one of the 83 provisions listed in Schedule 3 will ipso facto
apply to any drafts created preparatory to the protected document. The e ect of this would be to
cast a wide net of secrecy over draft documents held by agencies and Ministers.

1
In this case s104 of the National Redress Scheme Act 2018

84
Objects of the FOI Act furthered by referral to ART

5. As set out in the last bullet point of Guideline 10.104 (supra), the IC will consider whether certain of
the objects of the FOI Act are relevant in assessing whether a referral to the ART is merited.

6. The first of these is to “facilitate and promote public access to information”. I submit that the
importance of the nature of the legal issue outlined at paragraphs 3–4 above and its potential
precedential e ect is such that the ART is best placed to determine whether the wide statutory
construction given by the respondent in relation to draft documents should be upheld.

7. The second is that a decision on a matter of this importance should be made “promptly”. I
appreciate the majority of reviews are ordinarily determined by the IC. I also understand that the IC
is under a substantial workload in determining reviews and that naturally all applicants wish their
matters to be determined as soon as possible.

8. I do not submit that this matter should be referred to the ART pursuant to s54W(b) simply because I
desire a relatively quick outcome.

9. Rather, the facts of this matter are that I am requesting draft documents made2 pursuant to the NRS
Act which contains a statutory deadline (s193) as to the last date in which applications can be
made to the Scheme. That date (30 June 2027) is less than 3 years in the future.

10. For the objects of transparency and scrutiny of documents held by agencies to be promoted, a
delay of the “normal” order of an IC review (approx. 12 months) with possible further proceedings
before the AAT will mean that (should I be successful) the release of drafts will be so proximate to
the sunset of the NRS that the drafts released will be of no assistance in gaining some insight to the
Scheme.

11. In turn it would be far too late to seek reforms or changes to the Scheme from the insights obtained
due to the amount of time required to lobby for changes, to gain Government support for those
changes and to have them drafted and placed in the legislative timetable, never mind the amount of
time such legislation would take to pass the Parliament and receive proclamation.

12. I submit that a lead time for any changes to be made to the Scheme consequent upon any insights
gained from draft documents requires a lead time of at least 2 years. Whilst it may be that release of
the drafts does not lead to any impetus for legislative change, it is surely a fundamental purpose of
the FOI scheme as a whole that release of documents must be in a manner su iciently timely that
legislative reform is at least feasible.

13. On the above grounds I ask that the IC exercise their discretion under s54W(b) and refer this matter
to the ART.

Sincerely,
(Jarvis Fisher)
16 October 2024

2
During 2017-18, approximately 6 years ago

85
From: FOI
To: OAIC - FOI DR
Cc: FOI
Subject: RE: OAIC – MR24/01154 – s 54W(b) - Recommendation not to continue to undertake an Information
Commissioner review [SEC=OFFICIAL]
Date: Wednesday, 30 October 2024 12:29:21 PM

Good afternoon Sarveshcika

The Department will not be making a submission and have no further comment on the intended
recommendation.

Kind regards

Sarah

Sarah Beech
Assistant Director
Freedom of Information | Information Law
Legal Services Group
Department of Social Services
P: (02) 5162 7074 E: [email protected]

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

From: OAIC - FOI DR <[email protected]>

Sent: Wednesday, 23 October 2024 3:50 PM
To: Jarvis Fisher <[email protected]>; FOI <[email protected]>
Subject: OAIC – MR24/01154 – s 54W(b) - Recommendation not to continue to undertake an
Information Commissioner review [SEC=OFFICIAL]

Our reference: MR24/01154

Agency reference: 50588

Jarvis Fisher
By email: [email protected]

Department of Social Services

By email: [email protected]

Recommendation not to continue to undertake an Information

86
Commissioner review under s 54W(b) of the FOI Act

Dear parties,

Please find attached correspondence in relation to this Information Commissioner review.

If you disagree with the proposed recommendation, please write to us by 6 November 2024 and
advise us of your reasons.  

If you require assistance regarding this email, please contact us at [email protected].

Please quote the reference MR24/01154 in all correspondence.

Kind regards,
Sarveshcika Yuvaraj (she/her)
Paralegal | FOI Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [email protected]
Please note: The OAIC has revised its IC review procedures from 1 July 2024. For more
information about these revised procedures, including new resources to assist
applicants and respondents, see our webpage: Information Commissioner reviews |
OAIC

The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection
to land, waters and communities. We pay our respect to First Nations people, cultures and Elders past and
present.

Subscribe to Information Matters

Notice:

The information contained in this email message and any attached files may be
confidential information, and may also be the subject of legal professional privilege. If you
are not the intended recipient any use, disclosure or copying of this email is unauthorised.
If you received this email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra time) and
delete all copies of this transmission together with any attachments.

87
From: OAIC - FOI DR
To: Jarvis Fisher; FOI
Subject: OAIC- MR24/01154- Notification of a decision not to continue to undertake an Information Commissioner
review [SEC=OFFICIAL]
Date: Thursday, 31 October 2024 2:30:34 PM
Attachments: MR24 01154- 54W(b) - Decision not to continue to undertake an Information Commissioner review.pdf

Our reference: MR24/01154

Agency reference: 50588

Jarvis Fisher
By email: [email protected]

Department of Social Services

By email: [email protected]
  
Notification of a decision not to continue to undertake an
Information Commissioner review

Dear Parties,

Please find attached correspondence in relation to this Information Commissioner review.

The Information Commissioner has today concluded the Information Commissioner review under
s 54W(b) of the FOI Act.

The applicant has 28 calendar days from today to lodge an application for review with the
Administrative Review Tribunal (the ART), in accordance with s 18 of the Administrative Review
Tribunal Act 2024 (the ART Act).

I confirm our file is now close. Thank you for your assistance in this matter.

If you require assistance, please email us at [email protected].

Kind regards,
Sarveshcika Yuvaraj (she/her)
Paralegal | FOI Branch
Office of the Australian Information Commissioner
Sydney | GPO Box 5288 Sydney NSW 2001
P 1300 363 992 E [email protected]
Please note: The OAIC has revised its IC review procedures from 1 July 2024. For more
information about these revised procedures, including new resources to assist
applicants and respondents, see our webpage: Information Commissioner reviews |
OAIC

The OAIC acknowledges Traditional Custodians of Country across Australia and their continuing connection
to land, waters and communities. We pay our respect to First Nations people, cultures and Elders past and
present.

Subscribe to Information Matters

88
Notice:

The information contained in this email message and any attached files may be
confidential information, and may also be the subject of legal professional privilege. If you
are not the intended recipient any use, disclosure or copying of this email is unauthorised.
If you received this email in error, please notify the sender by contacting the department's
switchboard on 1300 488 064 during business hours (8:30am - 5pm Canberra time) and
delete all copies of this transmission together with any attachments.

89
6. This is also referred to in the Guidelines issued by the Australian Information
Commissioner under s 93A (FOI Guidelines) at [10.104] and [10.105], which states:

The Information Commissioner may decline to undertake a review if satisfied ‘that the
interests of the administration of the [FOI] Act make it desirable’ that the AAT consider the IC
reviewable decision (s 54W(b)). It is intended that the Information Commissioner will resolve
most IC review applications. Circumstances in which the Information Commissioner may
decide that it is desirable for the AAT to consider the IC reviewable decision instead of the
Information Commissioner continuing with the IC review include:2

• where the IC review is linked to ongoing proceedings before the AAT or a court
• where there is an apparent inconsistency between earlier IC review decisions and AAT
decisions
• where, should the application progress to an IC review decision, the IC review decision is
likely to be taken on appeal to the AAT on a disputed issue of fact
• where the FOI decision under review is of a level of complexity that it will be more
appropriately handled through the procedures of the AAT
• where there may be a perceived or actual conflict of interest in the Information
Commissioner undertaking the IC review, including where:
- the FOI request under review was made to, or decided by, the Information
Commissioner or their delegate
- the FOI request or material at issue relate to specific functions exercised by the
Information Commissioner under the Privacy Act
- the applicant has active matters in other forums, including the AAT or Federal
Court and the Information Commissioner is the respondent
• where consideration by the AAT would further the objects of the FOI Act, particularly in
relation to the performance and exercise of functions and powers given by the FOI Act to
facilitate and promote public access to information, promptly and at the lowest
reasonable cost (s 3(4)).

7. However, the circumstances in which the Information Commissioner may consider it

desirable that the ART consider the IC review application, as outlined in the FOI Guidelines
above, are not exhaustive. There will be circumstances that are not listed where the
Information Commissioner may deem it desirable to refer the matter to the ART.

8. Further, the Office of the Information Commissioner (OAIC) may take into account the
views of the parties to an IC review before concluding an IC review pursuant to s 54W(b).
While the Information Commissioner will consider the views of the review parties before
finalising an IC review under s 54W(b), the decision whether it is more appropriate for the
ART to consider the IC reviewable decision ultimately rests with the Information
Commissioner. Through the functions conferred on the Information Commissioner under
the FOI Act, the Information Commissioner will be in the most informed position to

2
See McKinnon and Department of Immigration and Citizenship [2012] AICmr 34

91
 determine whether the interests of the administration of the FOI Act make it desirable for
the ART consider the IC reviewable decision.

Reasons for decision

9. I am satisfied that it is in the interests of the administration of the FOI Act that the IC
reviewable decision be considered by the ART in the first instance because:

• The applicant contends the material related to the FOI decision under review is of
a level of complexity that may be more appropriately handled through the
alternative dispute resolution procedures of the ART.

• The applicant contends that the objectives of the FOI Act, particularly the
facilitation of public access to information, would be better achieved by the ART.
The applicant submits that the ART will be more ‘prompt’ in delivering its
decision, which is necessary in this case as a timely decision relating to the
documents at issue is needed to facilitate legislative reform.

10. In deciding whether to exercise the discretion not to undertake a review, I have
considered:

• the Agency’s decision dated 18 June 2024.

• the documents at issue
• the applicant’s submissions for the 54W(b) recommendation, dated 16 October 2024
• the Agency’s email which stated it did not intend to make a submission against the
recommendation, dated 30 October 2024.
• the FOI Act, in particular 54W
• the Guidelines issued by the Australian Information Commissioner under s 93A of the
FOI Act3 to which agencies must have regard in performing a function or exercising a
power under the FOI Act, in particular [10.104] and [10.105]
• The Explanatory Memorandum to the Freedom of Information Amendment (Reform)
Bill 2009

11. With consideration to the above, I am satisfied, as a delegate of the Information

Commissioner, that it would be more appropriate and efficient for the application to be
made directly to the ART. As such, I have decided to exercise my discretion to decide not
to continue to undertake an IC review under s 54W(b) of the FOI Act.

3
See Office of the Australian Information Commissioner, Guidelines issued by the Australian Information
Commissioner under s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

92
12. The applicant has 28 calendar days from the date of this notice to make an application for
review of the IC reviewable decision to the ART, in accordance with s 57A of the FOI Act.

13. I confirm that this IC review is now closed. Your review rights are set out below.

Yours sincerely,
Michelle Corcoran
Senior Review Advisor
Freedom of Information Branch
Office of the Australian Information Commissioner

31 October 2024

93
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.4

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 at
http://www.ombudsman.gov.au.

Accessing your information

If you would like access to the information that we hold about you, please
contact [email protected]. More information is available on the Access our
information page on our website.

4
See Federal Court of Australia

95
 I anguage assistance I Contact us I Accessibility

Administrative
Review Tribunal

Submission date [YYYY/MM/DD] Sydney time

2024-11-01 06:58:09

User Id Online reference number

7a4360be-73a9-41c8-84e3-b597f12d4fcd X8WM4D

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96
We collect information about you to process your application and carry out the review under the Administrative Review
Tribunal Act 2024 or the law under which the decision was made.

In making an application for review, you consent to the collection of personal information about you from the organisation
or person who made the decision, any other party to the review, or a relevant person or body, where collecting the
information is reasonably necessary to carry out the review.

We will g ive a copy of your application form to the organisation or person who made the decision and any other party to
the review. We may also inform a person whose interests are affected by the decision about your application.

We will usually g ive a copy of any relevant document given to us by you, or anyone else, to the other parties to the review
for the purposes of the review.

The information we collect may also be used for the purpose of another review involving you, if it is reasonably necessary
to do so, or to improve our services.

Information available to the public

Limited information about certain cases before the Tribunal can be accessed using eCase Search on our website and may
be made available to the public on request, unless a law or Tribunal order requires the information to be kept
confidential. This information includes the names of the parties and any representatives, the type of application, dates of
case events, a list of key documents lodged by the parties and the outcome of the application. For some cases, the
Tribunal may, on request, give members of the public access to evidence (exhibits) given to the Tribunal for a hearing.

If the Tribunal makes a written decision with a statement of reasons, it will usually be made public and published on the
internet, including on the Austlll website ( www austlii edu au). For more information about the decisions we publish, see
our Publication of Decisions Policy on our website.

Orders and laws restricting publication or disclosure

The Tribunal may make orders restricting disclosure or publication of information about you or others or evidence in a
review, if it considers an order is appropriate in the circumstances. You can apply for an order by writing to us stating
what information you want kept confidential and why.

In some cases, a law or the Tribunal's Practice Directions require that certain information be kept confidential or that
hearings be held in private. This includes information about certain Intelligence and Security proceedings, the identity of
parties in certain Taxation, Protection visa related, Social Services or Child Support proceedings, and the identity of
children in National Disability Insurance Scheme cases.

For more information, including how you can access information we hold about you and how to make privacy complaints,
see our Privacy Policy on our website www art gov au, or call us on 1800 228 333.

Terms and Conditions

In using this online form, you acknowledge that:

• the time of lodgement for any online application is the t ime when the Tribunal receives the application;
• if you agree, the Tribunal will send documents relating to your application to you by email, and that there are risks in
transmitting information by email and that, while the Tribunal strives to protect such information, we cannot
guarantee the security or integrity of information transmitted by email or by any other means;
• you have read and understood the contents of the Privacy Notice above;
• you have read and understood the contents of the Djsda jmer;
• the Tribunal is not responsible for the loss of any unsaved information; and
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97
QCoromoowealth of Australia 2018 Pisclairoec I .eciJlaQI. I Seo.u:itll-

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98
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99
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Yes
0 No

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Administrative
Review Tribunal

Declaration
Terms& Applicant Representative Decision Reasons for Documents & email Payment
conditions the application confirmation

Representative
You must complete fields or questions marked with *

Representative

You can represent yourself at the Tribunal or any person you choose can represent you. If you tell us that you have a
representative, we will send the letters and other documents about your case to your representative instead of sending
them to you.

Do you have a representative? *

Yes
0 No

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 Terms & Reasons for Declaration
Applicant Representative Decision Documents &email Payment
conditions the application confirmation

Decision
You must complete fields or questions marked with *

Decision details

What is a second review?

A person can apply to us for a second review by the ART of a:

• Centrelink decision (except an employer-related paid parental leave decision)

• Decision to refuse an extension of time to apply for a child support review
• Decision about a percentage of care for a child in a child support review.
If you want to apply for a first review of a Centrelink decision or a decision about child support, you can apply oolloe.

If you want to apply for a review of a child support decision made about a departure prohibition authorisation certificate,
you can also use this onllne form.

Are you applying for a second review of a decision made by the Tribunal, or a child support decision made
about a departure prohibition authorisation certificate? *
Yes
0 No

What type of decision do you want reviewed? *

Freedom of Information

If the type of decision you want reviewed is not listed, please select
Other

Are you able to upload a copy of the decision? *

0 Yes
No

Please upload your decision now. You can upload one or more files containing the decision you want us to review.

The maximum size for any single file is 15 MB. The acceptable file formats are Microsoft Word documents (.doc and
.docx), PDF flies (.pdf), RTF files (.rtf) and JPEG, GIF or PNG image files.

You will have the opportunity later in the application to upload any additional documents, for example, any evidence or
documents to support your claims.

Decision 1

Please select the copy of your decision *

Other attached files: IC Final Decision 54W(b).pdf

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l,'J Add Decision

Warning - if you deselect this checkbox you will delete all decisions starting at Decision 2

Decision 2

Please select the copy of your decision *

Other attached files: Notification of Application from IC Short notification to Review to R(2) MR24 01154.pdf

l.'J Add Decision

Warning - if you deselect this checkbox you will delete all decisions starting at Decision 3

Decision 3

Please select the copy of your decision *

Other attached files: DSS Submission MR24-01154 - LEX 51138 - Submission to IC.pdf

l,'J Add Decision

Warning - if you deselect this checkbox you will delete all decisions starting at Decision 4

Decision 4

Please select the copy of your decision *

Other attached files: DSS Original Decision.pdf

Add Decision

Time limit

We ask you to tell us when you received the decision so we can check if your application has been lodged within the time
limit.

Date you received the decision you want reviewed

(dd/mm/ yyyy) *

31/10/2024

Calc_Decision_Todays_Date *
01/11/2024

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 Language assistance | Contact us | Accessibility

Administrative
Review Tribunal

Declaration
Terms &
Applicant Representative Decision Reasons for Documents &email Payment
conditions the application confirmation

Reasons for the application

You must complete fields or questions marked with *

You must tell us briefly why you want to have the decision reviewed. For example, you may think the decision was wrong
and a different decision should be made, or the information you provided was not taken into account, or the law was not
applied correctly.

We cannot start the review if you do not answer this question.

Why do you claim the decision is wrong? *

The original decision by DSS refusing access to draft documents was revised by DSS in its submission to the Information Commissioner
Review which was discontinued following my submission pursuant to the Freedom of Information Act 1982 ("FOI Act") s54W(b). The
decision of access refusal and the consequent submission were flawed on the grounds of (1) incorrect statutory interpretation under s38
of the FOI Act (2) incorrect claim to exemption under s47E(d) FOI Act (3) incorrect claim to exemption under s47C FOI Act (4) insufficiency of
search for documents within the scope of the FOI application.
**Please note at all times in correspondence with OAIC/DSS I used the pseudonym "Jarvis Fisher" - I request my anonymity from DSS be
preserved**

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Administrative
Review Tribunal

Terms &
Declaration &
Applicant Representative Decision
Reasons for Documents email Payment
conditions the application confirmation

Documents
You must complete fields or questions marked with *

If there are any other documents you want to send us with your application, you can upload them here.

The maximum size for any single file is 15 MB. The acceptable file formats are Microsoft Word documents (.doc and
.docx), PDF files (.pdf), RTF files (.rtf), Microsoft Excel spreadsheets (.xls and .xlsx) and JPEG, GIF or PNG image files.

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Do you want to provide any additional documents now? *
Yes
0 No

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Terms& Applicant Representative Decision Reasons for Documents Payment

conditions the application

Declaration and email confirmation

You must complete fields or questions marked with *

Declaration

a I understand that, by submitting this form, I am making an application for a review of the decision(s) Identified, and
declare that the contents of this application are true to the best of my knowledge. *

Email confirmation

We will send the email confirming that we have received your application to the applicant's email address entered earlier.

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Applicant Representative Decision Documents email •. -
conditions the application confirmation

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 Payment
You must complete fields or questions marked with *

An application fee of $1121 must usually be paid when you apply for a review of a decision under the Freedom of
Information Act 1982. However, no fee is payable if the decision you want reviewed is about a document relating to a
decision that does not attract a fee when a person applies to the Tribunal for a review of that type of decision. Information
about decisions that do not attract an application fee can be found on our website.
They include decisions about:

• Commonwealth workers' compensation,

• family assistance or social security payments,
• military compensation,
• the National Disability Insurance Scheme, and
• veterans' entitlements.

Do you believe your application Is one In relation to which no fee Is payable as explained above? *
Yes
0 No

You are entitled to pay a reduced fee of $100 instead of the standard application fee if:
1. you have been granted legal aid for your appllcation;
2. you hold a health care card, pensioner concession card, Commonwealth seniors health card, or any other card issued
by the Commonwealth that certifies entitlement to Commonwealth health concessions;
3. you are in prison or lawfully detained in a public institution; or
4. you are under 18 years of age or receiving youth allowance, Austudy or ABSTUDY.

Are you entitled to pay the reduced fee for one of the four reasons set out In the list above? *
0 Yes
No

Please specify the reason *

I hold a current health care card, pensioner concession card, Commonwealth seniors health card or other relevant card

Please upload a scanned copy of your health care card, pensioner concession card, Commonwealth seniors
health card, or other card issued by the Commonwealth that certifies entitlement to Commonwealth health concessions.

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Proof of entitle ment

WESTERN AUSTRALIA Expires

-
Card start DSP
If you do not upload your proof of entitlement to pay a reduced fee, you can still lodge your application, but you will not
be able to pay your fee now. We will contact you about your entitlement to pay the reduced fee and how to pay it.

The maximum size for any single file is 15 MB. The acceptable file formats are Microsoft Word documents (.doc and
.docx), PDF files (.pdf), RTF files (.rtf), and JPEG, GIF or PNG image files.

Fee payable

$100.00

When a fee must be paid, we will not start the review until you pay the fee. The Tribunal may dismiss your application if
you do not pay the fee within six weeks after lodging your application.

Do you want to pay your fee

now? *
0 Yes
No

Payment Required

Instructions

To complete your Application for Review of Decision - General Division you must make a payment of $100.00 to
Administrative Review Tribunal.

Please enter your card details into the form below and click Submit.

Card details *
Payment complete: Status: Success; Amount: AUD 100.00; Transaction ID: 803400971; Authorisation Code: 086484

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I hereby authorise the debit of my Card Account in favour of Administrative Review Tribunal for $100.00 .

What is CVC?

Card Verification Code (CVC} also known as Card Verification Value (CW) or Card Security Code (CSC) or Card
Identification Digit (CID) is an additional security feature for web based payments. The "Card Identification Digit" Is three
digits.

For example, Visa

and
MasterCard show the 3 Digit
Security
CSC or CW as the Code
three-digit value
printed on the
signature panel on
the back of the card.

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