FOI 3675 decision letter.pdf

13 September 2024
FOI ref: 3675

Ms Watson
By email: foi+request‐11723‐xxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Ms Watson,
FREEDOM OF INFORMATION REQUEST – DECISION
I refer to your request to Treasury on 21 July 2024 for access, under the Freedom of
Information Act 1982 (FOI Act), to the following:
I request briefing information either sought by, or provided to the Government in relation to
the responsibility or liability of the ABA/the banks and/or the government in money scams
facilitated through the banks (that is, scams that use the banks to process payments/move
money). A particular focus on Authorised Push Payments is sought.
The timeframe I seek is from 2021 until now.
I would like the information requested to include the following:
•  Any reports, or briefings requested, to or from the Public Service or Government,
including any provided by or to the Banks or the ABA to the Government;
•  Any briefs provided regarding discussions between the Government and the Banks
(whether through the ABA or individual Banks) relating to this subject matter;
•  Any briefs to the Government relating to this (including any Ministerial signed
documents).
Exclusions:
1.  Please do not provide documents that are duplicates wholly or in substance (eg emails to
multiple stakeholders with the same content, reply emails).
2.   Also, please redact any content that would require consultation with third parties.
I am an authorised decision maker under section 23 of the FOI Act.

Langton Crescent
Parkes ACT 2600
Australia
P:  +61 2 6263 2800

Decision
The Treasury has identified 37 documents within scope of your request, listed in the attached
schedule. I have decided to release 1 document in full. I have decided to release 29 documents
in part. I have decided to refuse access to 7 documents in full. Irrelevant information in the
documents has been deleted under section 22 of the FOI Act. My decision on each document is
shown in the schedule. The documents for release are attached.
Further information regarding my decision is set out below.
Material Considered
The material to which I have had regard in making this decision includes the scope of the
request and content of the documents subject to your request, third party consultation
responses, the relevant provisions in the FOI Act and Guidelines issued by the Australian
Information Commissioner under section 93A of the FOI Act (FOI Guidelines), and advice from
subject matter experts within the Treasury and the Department of the Prime Minister and
Cabinet.
Reasons for decision
Material deleted pursuant to Section 22
Section 22 of the FOI Act allows information that is irrelevant to your request to be deleted.
The documents contain the names, signatures and direct phone numbers of government
employees. We informed you in our acknowledgement email that it is our usual practice not to
include the personal information of government employees and invited you to inform us if you
did not agree with us processing the request on this basis. As we did not hear from you, the
personal information of government employees has been deleted under section 22 of the FOI
Act.
The documents also contain material that is irrelevant to your request. This material has been
deleted under section 22 of the FOI Act.
Cabinet – Section 34
Section 34(1) of the FOI Act provides that a document is exempt if:
(a)
both of the following are satisfied:
i.
the document has been submitted to the Cabinet for its consideration, or is
or was proposed by a Minister to be so submitted; and
ii.
the document was brought into existence for the dominant purpose of
submission to Cabinet.
(b)
it is an official record of the Cabinet; or
(c)
it was brought into existence for the dominant purpose of briefing a Minister on a
document to which paragraph (a) applies; or
(d)   it is a draft of a document to which paragraph (a),(b) or (c) applies.
Documents 19, 29, 30, 31, and 32 are drafts of documents to which subsection (1) applies. The
documents were brought into existence for that purpose. I have decided that Documents 19,
29, 30, 31 and 32 are exempt in full under section 34(1)(d) of the FOI Act.
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Section 34(3) of the FOI Act provides a document is exempt to the extent that it contains
information the disclosure of which would reveal a Cabinet decision or deliberation, unless the
existence of the deliberation or decision has been officially disclosed. This applies to part of
Documents 8, 33 and 34. I have therefore decided that Documents 8, 33 and 34 are exempt in
part under section 34(3) of the FOI Act.
Section 42 – legal privilege
Section 42(1) of the FOI Act provides that a document is exempt if it would be privileged from
production in legal proceedings on the ground of legal professional privilege (LPP), and the
privilege has not been waived (section 42(2)).
Paragraphs [5.129] and [5.131] of the FOI Guidelines provide LPP applies where there is a legal
adviser‐client relationship (including with in‐house counsel), the communication was for the
dominant purpose of giving or receiving legal advice, and the advice is independent and
confidential.
Part of Document 35 contains legal advice. The privileged material was confidential, known
only to a select class of persons, and there has been no conduct or disclosures inconsistent
with the maintenance of confidentiality.
I am satisfied the relevant material is of such a nature that it would be privileged from
production in legal proceedings on the ground of LPP. I have therefore decided Document 35 is
exempt in part under section 42 of the FOI Act.
Section 47C – deliberative matter
Section 47C(1) of the FOI Act provides a conditional exemption for documents that, if
disclosed, would reveal an opinion, advice or recommendation obtained, prepared or
recorded, or consultation or deliberation that has taken place, in the course of, or for the
purposes of, the deliberative processes involved in the functions of an agency, a Minister or
the Government of the Commonwealth (deliberative matter).
Document 25 and 33 are briefs to the Assistant Treasurer. They include the Treasury's advice
to the Assistant Treasurer, provided for consideration as part of a consultation in the course of
the deliberative process intended for Cabinet. I am therefore satisfied that the relevant
material contained in these document is deliberative matter for the purposes of section 47C. In
this respect, I find the deliberative material includes factual information which is inextricably
intertwined with, and cannot be separated from, the deliberative material and deliberative
process.
Accordingly, Document 25 is conditionally exempt in full and Document 33 is conditionally
exempt in part under section 47C of the FOI Act. My considerations of the public interest are
set out below.
Section 47E(d) – prejudice to agency operations
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.

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I have applied this exemption to Documents 33 and 34 in part and to Document 25 in full. One
of Treasury’s core functions is to provide sound, confidential and authoritative policy advice on
issues of significance to the government. I find public disclosure of this material would
compromise this confidential process, including the future handling of the Treasury’s policy
recommendations.
Further, the relevant information informed, and was a precursor to, the development of
Cabinet‐related advice, briefs and submissions. Disclosure of this material would have a
substantial adverse effect on the proper and efficient conduct of the Treasury’s operations and
adversely impact the confidential Cabinet process. I therefore find parts of Documents 33 and
34 and the whole of Doucment 25 are conditionally exempt under section 47E(d) of the FOI
Act. My public interest considerations follow.
Public Interest Test
Section 11A(5) of the FOI Act provides that conditionally exempt material must be released
unless its disclosure would, on balance, be contrary to the public interest. Section 11B(3) sets
out public interest factors favouring release. I have not taken into account any irrelevant
factors set out in section 11B(4) of the Act in making this decision. The FOI Guidelines also set
out factors in favour of, and against, releasing conditionally exempt material.
In favour of release, I find disclosure would promote the objects of the FOI Act by increasing
scrutiny of government activities.
Against release, I find a public interest in preserving confidential government processes,
including the Cabinet deliberation process and related advice to Ministers, in circumstances
where disclosure of the relevant material would undermine the effectiveness of those
processes and inhibit the free and unqualified advice of agencies to government.
On balance, I consider there are overriding public interest factors against disclosure of the
conditionally exempt material.  I have therefore decided Documents 33 and 34 are exempt in
part, and Document 25 is exempt in full, under sections 47C and/or 47E(d) of the FOI Act.
Rights of Review
A statement setting out your rights of review in this matter is attached.
Disclosure Log
The Treasury publishes documents disclosed in response to FOI requests on the Treasury
website. This is consistent with the arrangements established by section 11C of the FOI Act. In
this instance, I consider that the documents released to you are appropriate for publication on
the Treasury’s FOI disclosure log.
Yours sincerely
Aidan Storer
Assistant Secretary
Market Conduct Division

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FOI 3675 Document Schedule
Doc
Description
Decision
No.
1
EC23‐002235
Release in part
Section 22 ‐ irrelevant
2
EC23‐002298
Release in part
Section 22 ‐ irrelevant
3
EC23‐002563
Release in part
Section 22 ‐ irrelevant
4
EC23‐002585
Release in part
Section 22 ‐ irrelevant
5
MB22‐000371
Release in part
Section 22 ‐ irrelevant
6
MB22‐000389
Release in part
Section 22 ‐ irrelevant
7
MB22‐000493
Release in part
Section 22 ‐ irrelevant
8
MB23‐000186
Release in part
Section 34(3) ‐ Cabinet
Section 22 ‐ irrelevant
9
MB23‐000319
Release in part
Section 22 ‐ irrelevant
10
MB23‐000423
Release in part
Section 22 ‐ irrelevant
11
MB23‐000425
Release in part
Section 22 ‐ irrelevant
12
MB23‐000583
Release in part
Section 22 ‐ irrelevant
13
MB23‐000595
Release in part
Section 22 ‐ irrelevant
14
MB23‐000608
Release in part
Section 22 ‐ irrelevant
15
MB24‐000054
Release in part
Section 22 ‐ irrelevant
16
MB24‐000057
Release in part
Section 22 ‐ irrelevant
17
MB24‐000244
Release in part
Section 22 ‐ irrelevant
18
MB24‐000263
Release in part
Section 22 ‐ irrelevant
19
MS23‐000692
Exempt in full
Section 34(1)(d) ‐ Cabinet
20
MB24‐000291 ‐ Attachment B
Release in part
Section 22 ‐ irrelevant
5

21
MS23‐001808
Release in part
Section 22 ‐ irrelevant
22
MS23‐002177
Release in part
Section 22 ‐ irrelevant
23
MS23‐002386 – Attachment A
Release in part
Section 22 ‐ irrelevant
24
MS23‐002386 ‐ Attachment B
Release in full
25
MS23‐002486
Exempt in full
Section 47C ‐ deliberative
Section 47E(d) ‐ operations of agencies
26
MS24‐000215
Release in part
Section 22 ‐ irrelevant
27
MS24‐000233
Release in part
Section 22 ‐ irrelevant
28
MS24‐000629 ‐ Attachment C
Release in part
Section 22 ‐ irrelevant
29
MS24‐000482 –Cabinet Submission
Exempt in full
Section 34(1)(d) ‐ Cabinet
30
EC24‐0000887 ‐ Attachment C.
Exempt in full
Section 34(1)(d) ‐ Cabinet
31
EC24‐0000887 ‐ Attachment C1.
Exempt in full
Section 34(1)(d) ‐ Cabinet
32
EC23‐002739
Exempt in full
Section 34(1)(d) ‐ Cabinet
33
MS24‐000756
Release in part
Section 34(3) – Cabinet
Section 47C ‐ deliberative
Section 47E(d) ‐ operations of agencies
Section 22 ‐ irrelevant
34
MS24‐000756 ‐ Attachment A
Exempt in full
Section 34(3) ‐ Cabinet
Section 47E(d) ‐ operations of agencies
Section 22 ‐ irrelevant
35
MS24‐000756 ‐ Attachment B ‐
Release in part
External Dispute Resolution
Section 42 ‐ legal privilege
Section 22 ‐ irrelevant
36
SB23‐000122
Release in part
Section 22 ‐ irrelevant
37
SB24‐000067
Release in part
Section 22 ‐ irrelevant

6

INFORMATION ON RIGHTS OF REVIEW
1.
APPLICATION FOR INTERNAL REVIEW OF DECISION
Section 54 of the FOI Act gives you the right to apply for an internal review of the decision
refusing to grant access to documents in accordance with your request.
An application for a review of the decision must be made in writing within 30 days of receipt of
this letter.
No particular form is required but it would assist the decision‐maker if you could set out in the
application the grounds on which you consider that the decision should be reviewed.
An application for a review of the decision should be emailed to xxx@xxxxxxxx.xxx.xx.
OR
2.
APPLICATION TO AUSTRALIAN INFORMATION COMMISSIONER (INFORMATION
COMMISSIONER) FOR REVIEW OF DECISION
Section 54L of the FOI Act gives you the right to seek a review of the decision from the
Information Commissioner. An application for review must be made within 60 days of
receiving the decision.
An application for review must be in writing and must:
–  give details of how notices must be sent to you; and
–  include a copy of the notice of decision.
You should send your application for review to:

The Information Commissioner
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY  NSW  2001

AND/OR
3.
COMPLAINTS TO THE INFORMATION COMMISSIONER
Section 70 of the FOI Act provides that a person may complain to the Information
Commissioner about action taken by an agency in the exercise of powers or the performance
of functions under the FOI Act.
A complaint to the Information Commissioner must be in writing and identify the agency the
complaint is about. It should be directed to the following address:
The Information Commissioner
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY  NSW  2001
The Information Commissioner may decline to investigate the complaint in a number of
circumstances, including that you did not exercise your right to ask the agency, the
Information Commissioner, a court or tribunal to review the decision.
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