Dear Australian Taxation Office,

I note recent advice given by the Australian Information Commissioner to the Australian Taxation Office ‘s (ATO’s) General Counsel. That advice is available here: https://archive.org/details/OAICDecision....

The effect of that advice is that the ATO’s policy of refusing to process valid applications made under the Freedom of Information Act 1982 (the FOI Act) and lodged by way of the righttoknow.org.au website runs contrary to the requirements of the FOI Act.

That being the case, the following is an application the purposes of the FOI Act. Any failure on the part of the ATO to process the following request in accordance with the requirements of the FOI Act will be met with a complaint being made to the Commissioner of Taxation by reference to the Public Service Act 1999 and the Public Interest Disclosure Act 2013.

I am conducting research, across a range of Government agencies, into the Government's enterprise bargaining framework for the Commonwealth Public Service. Specifically, in the interests of equity and transparency, whether the Government's policy to reduce the living standards of rank and file public servants (that is, public servants who are not considered senior executive service staff ('SES')) also extends to SES public servants.

Accordingly, I request documents which detail the precise monies paid to each of the ATO’s SES officers in the following financial years - FY2013/14, FY 2014/15 and FY2015/16. The group certificates/end-of-year PAYG payments summaries issued by the ATO to each of its SES staff in those years can be quickly and easily identified and retrieved, and will efficiently and accurately provide the information the subject of my request.

I am willing to agree to the decision maker redacting information relating to the tax file numbers, the home addresses and information relating to the amount of tax withheld for each of the relevant SES officers that may be contained in the relevant documents. I am willing to further narrow the scope of my request by limiting it to officers employed by the ATO who, at the time of my application, were categorised as SES officers, meaning that:
- ATO staff who were once SES officers at the ATO, but weren’t categorised as such at the time of this application; and
- the documents the subject of my request that pertain to SES officers who are no longer employed by the ATO;
are discounted from the scope of my application.

I make the following submissions in support of my application.

The precise remuneration paid to public servants for performing public duties is a matter of wide and countervailing public interest. That is established by authority including that set out in Re Ricketson and Royal Women’s Hospital (1989) 4 VAR 10; Re Forbes and Department of Premier & Cabinet (1993) 6 VAR 53; Re Stewart and Department of Transport (1993) 1 QAR 227; Re Thwaites and Metropolitan Ambulance Service (unreported, 13 June 1997); Re Milthorpe and Mt. Alexander Shire Council (1997) 12 VAR 105; Re National Tertiary Education Industry Union (Murdoch Branch) and Murdoch University; Ors [2001] WAICmr 1 and Asher and Department of State and Regional Development [2002] VCAT 609.

In Re Forbes, Deputy President Ball said (at page 60):
"Mr Baxter is a senior public servant performing very significant public functions and being paid wholly from money provided by the public. The public is entitled to know precisely how much of its money is received in salary and entitlements by senior public servants for performing functions on behalf of the public."

In Re Stewart, at pp.257-258, the Information Commissioner observed:
"It has been held […] that there is a general public interest in seeing how the taxpayers' money is spent which is sufficient to justify the disclosure of the gross income payable from the public purse to the holder of a public office. […] see [Re Ricketson and Royal Women's Hospital (1989) 4 VAR 10, and Re Forbes and Department of the Premier and Cabinet (1993) 6 VAR 53]."

In Re National Tertiary Education Industry Union, the Commissioner observed (at [68]):
"I recognise that there is a public interest in the public receiving value for its money spent on public education, especially in the present climate of financial restrictions. I agree with the Tribunal in Re Ricketson and Re Forbes that the public is entitled to know how much of its money is received in salary and entitlements by senior public officers for performing functions on behalf of the public and that such information is the subject of legitimate public interest and discussion."

In Asher, Deputy President McNamara stated:
"The total remuneration paid to senior public officers has been, and continues to be, a matter of public concern and public debate. The authorities referred to above indicate the fact that the taxpayers ultimately meet the remuneration gives them a legitimate interest in this matter, even although it is one that it is clearly a matter relative to the personal affairs to the officers themselves. As Mr Edwards notes, his actions as Secretary must ultimately be regulated by the law which must take precedence over any government policy, or one might say any private assurance that he might give to a particular officer. The existence of authorities such as Forbes and Milthorpe indicates that conformably with the Freedom of Information Act no officer, certainly no senior officer, could legally obtain an absolute guarantee of confidentiality of his or her total remuneration package figure without some special enabling legislation."

An additional wide public interest aspect that relates to my application is that employment relations (including the regulation of pay and conditions) in the public sector are widely considered to serve as a role model for industrial relations in the private sector (see, for example, Creighton B and Forsyth R [Eds.] Rediscovering Collective Bargaining, 2012 at pp.184-185). That is, the way in which a government treats its staff (public servants) can be considered emblematic of the way in which a government considers employees across the broader workforce should be treated by their employers. The current Commonwealth Government has an employment relations policy in place (known as the ‘Australian Public Service Bargaining Framework’) which necessarily involves reducing the living standards of rank and file (non-SES) public servants. Senior management at the ATO has decided, at its discretion, to adopt and enforce, against its rank and file staff, the Government’s employment relations policy. Part of the purpose of my application is to determine whether the Government’s policy to reduce the living standards of rank and file public servants also extends to SES public servants. The documents the subject of my request will shed some light on that issue. It is immutably in the public interest of APS rank and file employees and their families, but also Australian taxpayers and working Australians more generally, to know whether it is the current Government’s view that rank and file employees who are not categorised as senior executives (or equivalent) are generally overpaid, and should therefore have their living standards reduced by their employers, while senior executives (or their equivalents) are generally underpaid and should have their living standards increased. Such an insight will augment the public’s knowledge of the Government’s existing policies concerning the distribution of wealth among Australian society including the Government’s policy to reduce the level of penalty rates paid to some of the lowest paid members of the Australian workforce while simultaneously reducing company taxation rates.

Thank you.

[name not required to be provided under the FOI Act]