Case note: Tennant and Secretary, Department of Employment and Workplace Relations

Tennant and Secretary, Department of Employment and Workplace Relations [2026] ARTA 549

This Administrative Review Tribunal (ART) decision concerns a decision of the Department of Employment and Workplace Relations (the Department) and discussed the application of ss 47E(a), 47D and 47E(d) of the Freedom of Information Act 1982 (Cth) (FOI Act).

Background

On 8 May 2020 the Applicant made an access request to Services Australia under the FOI Act to documents relating to the Job Seeker Classification Instrument (JSCI). Four of the five parts of that request were transferred to the Department under s 16 of the FOI Act.

The transferred request sought access to:

1. JSCI Assessment reports concerning the Applicant
2. points allocated to the 18 specified ‘factors’ in the JSCI Assessments
3. current and previous versions of the document ‘Job Seeker Classification Instrument—Factors and Points’, and
4. a document specifying what JSCI Assessment score equates to a ‘highly disadvantaged’ score.

On 3 August 2020 the Department identified five documents relevant to the scope of Applicant’s request and:

• granted access in full to two documents
• granted access in part to one document, and
• refused access in full to the remaining two documents on several grounds.

In relation to point 2 of the Applicant’s request, the decision was made to refuse access under s 24A of the FOI Act, on the basis that all reasonable steps had been taken to locate the document and the document did not exist

On 25 September 2020, following a request for internal review, the Department made the reviewable decision, which was largely consistent with the original decision.

On 3 November 2020 the Applicant applied for Information Commissioner review and on 26 April 2023, following a request from the Applicant, the Commissioner finalised the IC review under s 54W(b) of the FOI Act enabling the Applicant to apply directly to the ART for review.

Ultimately when the matter came to hearing the issues for review by the ART were:

1. whether the relevant parts of Documents 3, 4 and 5 in issue were conditionally exempt under ss 47E(a), 47D and/or 47E(d) of the FOI Act, and
2. for any material that is conditionally exempt—whether, on balance, the disclosure of that material would, at the time, be contrary to the public interest.

Prejudice to the effectiveness of methods for conducting tests, examinations or audits – s 47E(a) of the FOI Act

The ART in considering s 47E(a) had regard first to two questions:

1. Is the JSCI a test as contemplated in s 47E(a) of the FOI Act?
2. Whether the disclosure of the information would, or could reasonably be expected to, prejudice the effectiveness of procedures or methods for the conducting of tests etc.

The Applicant’s position in relation to the first question was that the JSCI is not a test but rather  a ’factual questionnaire’. The Applicant put forward the view that the JSCI involves a questionnaire focused on eliciting specific, discrete and objectively verifiable information as opposed to subjective data from an individual. The Department’s position was that the JSCI involves the answering of questions to determine the quantity of something, namely how much a participant is at a disadvantage in the labour market and is therefore a test for the purposes of s 47E(a).

Ultimately when having regard to the ordinary meaning of the phrase ’test’ and previous ART consideration, as well as the FOI Guidelines the ART was ultimately satisfied that the JSCI assessment  was ’most akin to a test for the purposes of s 47E(a) of the FOI Act, given that it assigns points to certain factors to identify, determine and manage a participant’s risk of becoming or remaining long term unemployed’ [37].

In relation to the second question (whether the disclosure of the information would, or could reasonably be expected to, prejudice the effectiveness of procedures or methods for the conducting of tests) at [42], the Applicant made the submission that ’there is no prejudice to the effectiveness of the JSCI assessment from the release of the documents as the JSCI questions and answers are publicly available and can therefore already be manipulated’. The Department made countervailing submissions, arguing that the material at issue was not publicly known, and that disclosure would prejudice the effectiveness of the JSCI Assessment because it would enable participants and providers to use the information to manipulate the JSCI Assessment process. In support of these points the Department relied on the evidence of the acting Assistant Secretary, Access and Participation Branch, to support these contentions.

Ultimately the ART found that the evidence supported that disclosure could result in ’participants or providers being able to manipulate a score to influence the type of employment services to be provided’ [49].

Whether the disclosure of the information would have a substantial adverse effect on the financial or property interests of the Commonwealth or of an agency– s 47D of the FOI Act

Following setting out the relevant test, namely that for the s 47D conditional exemption to apply, the potential effect on the financial or property interests of the Agency that would be expected to occur following disclosure must be both substantial and adverse, the ART accepted the uncontested evidence of the Department that the JSCI Assessment would be vulnerable to fraud causing the Department to make unwarranted payments to ineligible providers and participants.

Whether the disclosure would have a substantial adverse effect on the Department’s proper and efficient operations– s 47E(d) of the FOI Act

The ART accepted that disclosure would have a substantial adverse effect on the Department’s proper and efficient operations. Specifically at [59] the ART accepted the evidence of the Department that, ’…release of the material could result in a substantial change to the department’s processes…if there was widespread manipulation…the Department would be forced to develop an alternative assessment tool, as the JSCI could no longer be used effectively to reflect labour market disadvantage.’

Application of the Public Interest Test

In the ART’s assessment of the public interest test, it considered the following factors in favour of disclosure:

1. Informing debate on a matter of public importance, in particular assessing participants to determine eligibility for employment services support.
2. Promoting effective oversight of government expenditure, namely payments made to providers and participants.
3. Facilitating access to information that allows the community to be satisfied that proper processes have been followed by the Department when making decisions affecting individuals.

4.     Providing the applicant with access to her personal information.

The ART considered the following factors for disclosure to be contrary to the public interest:

1. The Applicant has already been given access to her own responses and was offered the opportunity to review certain aspects of the documents confidentially.
2. While the scoring details were not publicly available, the JSCI questions are, and participants can view their answers to the Job Seeker Snapshot and update their answers up to twice per day.
3. The ART recognised a strong public interest in protecting the integrity of employment services program and that it is not compromised or undermined by the disclosure of the documents. 
4. Incurring expenses from the impact of disclosure without any commensurate public benefit is contrary to the public interest.

On balance the ART determined to affirm the Department’s decision.

Key takeaways

• When seeking to establish exemptions under the FOI Act, wherever possible agencies should seek to provide as detailed evidence as possible to substantiate their reasons for applying the relevant exemptions.
• Exemptions can have a cascading effect, where disclosure would prejudice the effectiveness of a test and that test forms an integral part of the agency’s delivery of its functions, the relevant agency’s functions may also potentially be prejudiced.

If your agency requires advice or assistance with the processing of FOI requests, please reach out to Chantal Tipene and our team of FOI specialists would be happy to assist.