OFFICIAL
7 February 2025
FOI ref: 3812
Mr Francis Markham
By email
: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Markham,
FREEDOM OF INFORMATION REQUEST – DECISION
I refer to your request to Treasury on 5 December 2024, as revised on 18 December 2024, for
access under the
Freedom of Information Act 1982 (
FOI Act) to the following:
Documents, excluding emails, that report on those evaluations, reviews or assessments
of the impact of tobacco excise on smoking behaviour (e.g. consumption, prevalence,
product switching to e-cigarettes, product switching to the black market, etc.) that have
been undertaken or commissioned by Treasury since 2018.
I am an authorised decision maker under section 23 of the FOI Act.
Decision
The Treasury has identified 22 documents within the scope of your request. I have decided to
grant access to two documents in full (
Documents 1 and 19). I have decided to refuse access to
ten documents in ful under section 34 (Cabinet documents) and section 47E(d) (operations of
certain agencies) of the FOI Act (
Documents 5, 6, 7, 8, 9, 10, 13, 20, 21 and 22). I have decided
to release the remaining ten documents in part (
Documents 2, 3, 4, 11, 12, 14, 15, 16, 17 and
18). The documents for release are attached, edited under section 22 of the FOI Act to delete
irrelevant material. My decision on each document is shown in the schedule.
The reasons for my decision follow.
Material Considered
The material to which I have had regard in making this decision includes the scope of the
request and content of the document subject to your request, 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.
Langton Crescent
Parkes ACT 2600
Australia
OFFICIAL
P: +61 2 6263 2800
OFFICIAL
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 in scope of your request contain the names 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 documents – 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.
Document 8 is a draft version of a document that was submitted to Cabinet for consideration
and was created for the dominant purpose of being so submitted. Document 9 is a document
which was submitted to Cabinet for consideration and was created for the dominant purpose
of being so submitted. Document 22 was brought into existence for the dominant purpose of
briefing a Minister on a document to which section 34(1)(a) of the FOI Act applies.
I have therefore decided Document 8 is exempt in ful under section 34(1)(d), Document 9 is
exempt in full under section 34(1)(a), and Document 22 is exempt in ful under section 34(1)(c)
of the FOI Act.
Agency operations – section 47E(d)
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 operations of an agency.
Documents 5-7, 10, 13, 20 and 21 are comprised of material, the disclosure of which, would
reveal the Treasury’s deliberative processes in relation to Cabinet and compromise the
confidentiality of the Cabinet process. The provision of sound, confidential and authoritative
advice on issues of significance to the Cabinet is a core function of the Treasury.
Accordingly, the principle of Cabinet protecting confidentiality has long been recognised in
Australian government processes and legislation, including under section 34 of the FOI Act.
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Documents 13, 20 and 21 are draft working papers containing the preliminary views of the
Treasury. These preliminary views do not represent the official views of the Treasury. Further, I
find that disclosure of this information would impede the ability of the Treasury to effectively
deliberate over its proposed policies and recommendations.
I am satisfied that the disclosure of Documents 5-7, 10, 13, 20 and 21 would have a substantial
adverse effect on the proper and efficient conduct of the operations of the Treasury, including
with regard to confidential government processes.
I have therefore decided Documents 5-7, 10, 13, 20 and 21 are conditional y exempt under
section 47E(d) of the FOI Act. My consideration of the public interest test is set out below.
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, and section 11B(4) sets out factors that must not
be taken into account. The FOI Guidelines set out factors in favour of, and against, releasing
conditionally exempt material.
In favour of disclosure, I consider access to the conditionally exempt material would promote
the objects of the FOI Act and increase scrutiny of the government’s activities.
Against release of the conditionally exempt material in 5-7 and 10, I have considered the
importance of maintaining the Treasury’s ability to generate confidential recommendations
and advice to support policy development, including through the Cabinet process. Against
release of the conditionally exempt material in Documents 13, 20 and 21, I have considered
the public interest in maintaining the Treasury’s ability to deliberate on policy matters before
providing advice for government consideration.
On balance, I consider the public interest factors against disclosure outweigh the factor in
favour of disclosure. I have therefore decided Documents 5-7, 10, 13, 20 and 21 are exempt
under section 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 on the same day that the decision is sent to an applicant. This is consistent with the
arrangements established by section 11C of the FOI Act. In this instance, I find the released
documents are appropriate for publication.
Yours sincerely
Emma Baudinette
Assistant Secretary
State, Indirect & Industry Tax & Not-For-Profit Branch
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FOI 3812 Document Schedule
Doc No. Description
Decision
1.
Talking Points - KPMG Il icit Tobacco
Release in ful
Report
2.
Back Pocket Brief – Il icit Tobacco
Release in part -
Measures
• Section 22 – irrelevant
3.
Questions and Answers for Il icit Tobacco Release in part -
Measures
• Section 22 – irrelevant
4.
Back Pocket Brief – Il icit Tobacco
Release in part -
• Section 22 – irrelevant
5.
Key Points – Tobacco Excise Increases
Refuse in ful
• Section 47E(d) – operations of certain
agencies
6.
Meeting Brief - 23-24 Budget Tobacco
Refuse in ful
Options
• Section 47E(d) – operations of certain
agencies
7.
Internal Comments – 23-34 Budget
Refuse in ful
Tobacco Increase Proposal
• Section 47E(d) – operations of certain
agencies
8.
NPP – 23-24 Budget Changes
Refuse in ful -
• Section 34(1)(d) – Cabinet document
9.
Pink Brief – 23-34 Budget Changes
Refuse in ful -
• Section 34(1)(a) – Cabinet document
10.
Costing Note
Refuse in ful -
• Section 47E(d) – operations of certain
agencies
11.
Talking Points – Tobacco Excise
Release in part -
• Section 22 – irrelevant
12.
Additional Points – Tobacco Taxes and Release in part -
Il icit Tobacco
• Section 22 – irrelevant
13.
Draft Working Paper on Il icit Tobacco
Refuse in ful -
• Section 47E(d) – (operations of certain
agencies)
14.
Tax Analysis Division Chart – Analysis of Release in part -
Patterns in Monthly Tobacco Clearance
• Section 22 – irrelevant
15.
Back Pocket Brief for Senate Estimates
Release in part -
• Section 22 – irrelevant
16.
Elasticity Analysis for Tobacco
Release in part -
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• Section 22 – irrelevant
17.
Preliminary Tobacco Exercise Forecasts
Release in part -
• Section 22 – irrelevant
18.
Senate Estimates Briefing – Smoking, Release in part -
vaping and tobacco excise
• Section 22 – irrelevant
19.
Question on Notice Response – Vaping Release in ful
and Tobacco Excise Questions
20.
Draft Working Paper on Il icit Tobacco
Refuse in ful -
• Section 47E(d) – operations of certain
agencies
21.
Draft Working Paper – Shadow Economy Refuse in ful -
Review
• Section 47E(d) – operations of certain
agencies
22.
Ministerial Correspondence Attachment - Refuse in ful -
• Section 34(1)(c) – Cabinet document
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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 t
o 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 fol owing 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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Document Outline
