1. The evidence in these proceedings are the affidavits of the Applicant, Mr Singh, sworn on 11 November 2025 (Singh affidavit) and 16 February 2026 (Supplementary Singh affidavit) and the affidavit of Ms Katrina Dwyer, Senior Assistant Ombudsman at the Office of the Commonwealth Ombudsman (Office), sworn on 10 October 2025 (Dwyer affidavit).

1. Section 3 of the FOI Act sets out the Act's objects which includes relevantly that Parliament intended by the objects to promote Australia's representative democracy by increasing scrutiny and that Parliament also intended that functions and powers given by the Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
2. Under s 11(a) of the FOI Act, every person has a legally enforceable right to obtain access under the Act to a document of an agency such as the Respondent, other than an exempt document.
3. Under s 24(1) of the FOI Act, an agency may refuse a request if a practical refusal reason exists after undertaking a request consultation process. Section 24(2) of the FOI Act allows the agency to treat 2 or more requests as a single request if satisfied that:

(a) the requests relate to the same document or documents; or > > (b) the requests relate to documents, the subject matter of which is substantially the same.

4. Section 24AA(1) of the FOI Act, provides that a practical refusal reason exists when relevantly the following applies:

(a) the work involved in processing the request: > > (i) in the case of an agency--would substantially and unreasonably divert the resources of the agency from its other operations;...

5. Section 24(2) AA of the FOI Act lists a range of matters which the agency must have regard to when deciding whether a practical refusal reason exists:

(a) identifying, locating or collating the documents within the filing system of the agency, or the office of the Minister; > > (b) deciding whether to grant, refuse or defer access to a document to which the request relates, or to grant access to an edited copy of such a document, including resources that would have to be used for: > > (i) examining the document; or > > (ii) consulting with any person or body in relation to the request; > > (c) making a copy, or an edited copy, of the document; > > (d) notifying any interim or final decision on the request.

6. The FOI Guidelines also list a range of matters that may be relevant in deciding whether a practical refusal reason exists:
   • - the staffing resources available to an agency or minister for FOI processing
   • - whether processing the request requires the specialist attention of a minister or senior officer, or can only be undertaken by one or more specialist officers in an agency who have competing responsibilities
   • - the impact that processing a request may have on other work in an agency or minister's office, including FOI processing
   • - whether the FOI applicant has cooperated in framing a request to reduce the processing workload
   • - whether there is a significant public interest in the documents requested
   • - other steps taken by an agency or minister to publish information of the kind requested by the applicant...[3]
7. Section 24(3)AA of the FOI Act provides that in deciding whether a practical refusal reason exists, an agency or Minister must not have regard to:

(a) any reasons that the applicant gives for requesting access; or > > (b) the agency's or Minister's belief as to what the applicant's reasons are for requesting access; or > > (c) any maximum amount, specified in the regulations, payable as a charge for processing a request of that kind.

8. Section 24AB of the FOI Act sets out the request consultation process for when an agency refuses a request because a practical refusal reason exists and includes relevantly the requirement to notify the applicant of an intention to refuse access to a document and the practical refusal reasons and to take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists.
9. The Information Commissioner has issued Guidelines under s 93A of the FOI Act (FOI Guidelines). Previous Tribunal decisions have found that the FOI Guidelines are not binding, definitive or determinative but nonetheless they assist the Tribunal with dealing with matters which cannot be resolved by direct reference to the terms of the Act itself.[4] The sections of the FOI Guidelines I consider that can assist the Tribunal in this regard are sections [3.193], [3.197]-[3.216] and [3.217]-[3.222] which I will consider further below.

1. I will first outline the Respondent's submissions because they bear the onus of establishing that a practical refusal reason exists and that the three FOI request should be treated as a single request.

1. The Respondent submits that s 24(2)(b) of the FOI Act expressly permits multiple requests to be treated as a single request for the purpose of determining whether a practical refusal reason exists when the agency is satisfied that the subject matter of the requests is 'substantially the same'.[5]
2. The Respondent also submits that the categories of material sought in the three requests overlap and are related with the subject matter of the requests being 'substantially the same'. It is argued that each request is concerned with matters relating to the Office's internal governance and financial management, and more specifically, that each of the 29 categories of documents sought in the three requests is concerned with the Ombudsman's performance of his duties as the accountable authority of the Office under the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) and Public Governance, Performance and Accountability Rule 2014 (Cth) over the 2018 to 2023 financial years.[6]
3. The Respondent further submits that even if the requests are not treated as a single request, a practical refusal reason exists in respect of each separate request, and they ought to be refused on that basis because the evidence establishes that, if processed separately each request would constitute a substantial and unreasonable diversion of the Office's resources.[7]

1. The Respondent submits that diversion of resources will be 'substantial' where it is 'real or of substance' or is 'one of substance' and is more than 'trivial or nominal'.[8] The Respondent further submits that this question is commonly answered by reference to the time that it would take to process the request and while there is no universal yardstick for what constitutes a substantial diversion, as this is context dependent, the size of the agency is relevant.[9]
2. The Respondent therefore submits that the evidence before the Tribunal establishes that the work involved in processing the requests would be 'substantial' for a number of reasons including significantly, that it is estimated the requests would take 986 to 1,223 hours to process. This would require a member of the Office's Legal Team to work exclusively on processing the requests for a period of approximately 28 to 35 weeks.[10]
3. The Respondent submits that whether or not the diversion is 'unreasonable' is a 'question of fact and degree which calls for a balancing of all the legitimate interests involved'.[11] The Respondent submits a number of reasons to support its contention that the evidence before the Tribunal establishes that the substantial diversion of the Office's resources from its other operations is 'unreasonable'.[12]

1. The Applicant refutes the Respondent's claim that the material in the three requests overlap stating that he believes the Respondent has combined the requests to bolster the practical refusal claim[13] which he regards as an abuse of the discretionary power in s 24 of the FOI Act.[14] He submits that the Respondent's claim that the request falls within the statutory requirement of being 'substantially the same' is not supported by any evidence. He further states in his affidavit and reply that the 'tortuous and acrimonious' history between the parties, which has included the making of a vexatious applicant declaration, suggests that there are additional motives behind the combining of the requests.[15]

1. The Applicant submits that a practical refusal reason does not exist whether the requests are consolidated or are treated as single requests. The Applicant states that his core submissions can be summarised as:

'The time estimates are either overstated or incorrect.

• − The work requirement estimates are based on perceptions pitched at

• − The Respondent is provided with significant resources by the

Government but chooses not to allocate them to fulfil his FOI > > obligations.

• − The Respondent's PRR is based on his belief that disclosure of

documents will enable the Applicant (or third parties) causing further > > embarrassment to the Respondent and his agency. > > - Any diversion of resources would not be unreasonable having regard > > to several factors catalogued throughout these submissions and the Applicant's affidavit evidence.'[16]

1. The Applicant also submits that the six reasons advanced by the Respondent to justify the substantial work argument do not withstand scrutiny.[17] I explore the Respondent's reasons and the Applicant's rebuttal further below.

Was the request consultation process undertaken in accordance with the Act?

1. The first consideration in determining whether a practical refusal reason exists is whether the request consultation process set out in s 24AB of the FOI Act was undertaken. Although this was not in issue between the parties, I thought it necessary to satisfy myself that consultation was undertaken in accordance with the Act because it is a threshold consideration as it must be followed before a request can be refused.
2. On 25 June 2024, the Applicant was advised of the decision to combine requests and in accordance with s 24AB(2) of the FOI Act of the Respondent's intention to refuse the combined requests on the basis that processing the requests as currently framed would substantially and unreasonably divert the resources of the Office from its other operations.[18] The Applicant was also provided with the opportunity to reconsider the scope of his request and make revisions to remove the practical refusal reason.[19]
3. It was proposed to the Applicant that he could consider:

• − 'limiting your requests to one or two items at a time (This would involve

withdrawing your request, and relodging it incrementally over a substantial > > period of time)

• − withdrawing or significantly limiting the parts of your request that would involve the most substantial processing time:

o Items 2, 3, 4, 7, 9 & 10 of your request dated 6 May 2024 - as modified by > > email on 5 June 2024 > > o Items 3.1, & 3.2 of your request dated 31 May 2024 > > o Items 1 & 2 of your request dated 2 June 2024

• − significantly reducing the date range of your requests
• − excluding from the scope of your request names and personal information of private individuals, business information of third party organisations and legally privileged material.'[20]

1. On 30 June 2024, the Applicant responded disputing the Respondent's conclusions and requesting that a final decision be issued immediately so he can refer the matter to the Information Commissioner and then request a direct referral to the Tribunal.[21]
2. On 5 July 2024, the Respondent wrote again to the Applicant conveying its view that some of the information being sought could be processed promptly if it were severed from the more burdensome aspects of the requests. The Applicant was again invited to consult about the scope of his request before a final decision was made.[22]
3. On 7 July 2024, the Applicant responded stated that making multiple consultations was a waste of time and that he stands by his previous response.[23]
4. I am satisfied that the events outlined above show that the procedural steps specified in s 24AB of the FOI Act were followed by the Respondent.

Do the requests relate substantially to the same subject matter?

1. The Respondent denies the allegations that it had an ulterior motivation for combining the requests. The Respondent claims there is no basis to the allegations and in any event, they are irrelevant to the question of whether the Respondent was correct to treat the requests as a single request for the purpose of determining whether a practical refusal reason exists.[24] I agree with the Respondent's submission on this point.
2. As stated above, in deciding whether a practical refusal reason exists, 2 or more FOI requests may be treated as a single request if the decision-maker is satisfied that the subject matter is substantially the same for the requests.
3. Neither 'subject matter' or 'substantially' are defined in the FOI Act. The FOI Guidelines state that in relation to its use in relation to s24AA(1)(a)(i) the word 'substantial' should bear its ordinary meaning of 'ample or considerable amount, quantity, size'.[25] In the Chief Executive Officer, Services Australia and Farrell[26] (Farrell) the now Deputy President O'Donovan said that in the context of s 24AA of the FOI Act he was satisfied that the word 'substantially' refers not to a large diversion of resources but 'merely to one of substance'. Applying these conclusions to its use in s 24(2)(b) of the FOI Act I am of the view that 'substantially the same' refers to requests that while not identical are sufficiently and materially similar in subject matter that they can effectively be treated as the same.
4. The FOI Guidelines say that the most common circumstance in which FOI requests may be combined under s24(2) of the FOI Act is likely to be multiple requests from a single applicant.[27] However, the FOI Guidelines also make it clear that multiple requests can only be combined as a single request under s 24(2) of the FOI Act if there is a clear connection between the subject matter of the requested documents.[28] The FOI Guidelines only provide 'straightforward examples' of where one request could be combined with another which are not very helpful to the making of a determination in this case.
5. In the exchange during cross-examination, Mr Singh put to Ms Dwyer that the ARC has nothing to do with public governance, performance and accountability. Ms Dwyer refuted that claim, explaining that the Ombudsman is not only required to establish the ARC under the PGPA Act, but the ARC relates to the Ombudsman's role as the Accountable Authority. She also said that more broadly, the documents related to the Office's financial and governance performance. In the 25 June 2024 and 5 July 2024 consultation letters to the Applicant, it was also said that the requested documents related to 'governance and administration' as well as 'governance and financial management' of the Office.[29] The RSFIC states that the three requests relate to the 'governance, accountability and financial management and reporting' of the Office. I agree that the latter is the correct characterisation of the subject matter broadly.
6. While I accept Ms Dwyer's evidence, I do have concerns about characterising the subject matter of the requests at such a high-level to justify combing the requests. I consider it important when considering the question of combining the requests, to recognise the public purpose embedded in the objects of the FOI Act. This purpose includes ensuring as far as possible access to information is facilitated and at the lowest reasonable cost. In my view, characterising the subject matter of multiple requests too broadly could defeat those objectives. In particular, if it results in multiple requests reaching the threshold for practical refusal reason, whereas individually, each request might not.
7. As stated above, the Respondent contends that the categories of material sought in the three requests overlap and are related with the subject matter concerning the Ombudsman's obligations under the PGPA Act. At a high level I agree with that contention.
8. However, it is possible to characterise the requests at a lower level (albeit still broad) and when done so, Mr Singh's contention that the first request can stand alone in terms of subject matter can be seen as valid. In my view, the requests can be categorised as follows:

(a) The first request concerns the operation and functions of the ARC committee which the accountable authority is required to establish under s 45 of the PGPA Act. > > (b) The second request, apart from Part 1, relates to the power of the accountable authority to enter into arrangements and approve the commitment of relevant monies under s 23 of the PGPA Act. > > (c) The third request also relates to approvals under s 23 of the PGPA Act including low-value purchases on credit cards.

9. The Respondent also maintains that a practical refusal reason exists in respect of each individual FOI request. The Applicant submits that a practical refusal reason does not exist, whether the requests are consolidated or treated as individual requests.[30]
10. Given the concerns I have raised above at [40], I propose to proceed cautiously and evaluate whether a practical refusal reason exists in relation to each individual request.

Substantial and unreasonable diversion of resources

1. As the Applicant states in his affidavit most of the information including legal and contracting expenditure, is already in the public domain but the Respondent is refusing to give full particulars.[31]

1. The first aspect for me to consider is whether the work involved in processing the requests would substantially divert resources of the Office from its other operations.
2. I have already explained at [37] the meaning of 'substantial'. The FOI Guidelines state that whether a practical refusal reason exists is a question of fact in the individual case.[32] The FOI Guidelines also state that bearing in mind the number of matters that must and can be considered, it is not possible to specify an indicative number of hours of processing time that would be 'substantial' for the purpose of a practical refusal reason and that agencies should not adopt a 'ceiling' in relation to processing time.[33]
3. I have been assisted by the evidence contained in the Dwyer affidavit in determining whether the work involved in processing each request would be substantial. Ms Dwyer states that for the purposes of preparing her affidavit she has taken a number of steps to satisfy herself of the work involved in processing the requests.[34] Ms Dwyer states she was informed by the memorandum provided to her from Ms Wong, Legal Director.[35] Ms Dwyer states that she is of the opinion that the figures prepared by Ms Wong are a realistic estimate of the time it would take for an FOI officer to process the FOI requests, 'taking into consideration the lengthy date range of the requests, the volume of documents located, the time to retrieve those documents and convert them to PDF, the age and complexities of the documents, and the number of third parties that would require consultation'.[36]
4. Ms Dwyer also states that she undertook her own examination of the sample of documents because she noted that Ms Wong's calculation of the processing time was substantially greater than that set out by the primary decision maker. She further states that to satisfy herself of the accuracy of the memorandum she selected a sample of the ARC documents in relation to request one which Ms Wong considered would fall into the request and undertook her own review.[37]
5. In her memorandum Ms Wong sets out the factors contributing to the high document and page count which she says is in no small part due to the lengthy timespans many parts of the requests cover.[38]
6. Ms Wong states that the first request would take around 468 hours to process. She arrived at this conclusion based on a sample of 500 pages of the total 4148 pages of material which is a total of 12% of the material.[39] She provides several reasons for this, including that the material contained in the documents mean that exemptions are likely to arise under a number of sections (346 hours) [40] and internal and external consultation would be extensive (116 hours with 58 third parties).[41]
7. Ms Dwyer states that given the uncertainty about the precise scope of this request in order to further satisfy herself as to the resource burden posed by the request she calculated the impact it would have on the processing estimate if only half of the ARC papers were considered in scope. She concluded that process the first request would take a minimum of 6.8 weeks or up to 13.4 weeks depending on the scope.[42]
8. Ms Wong states that the second request would take around 152 hours to complete with the bulk of the hours related to the extraction, review, collation and redaction of the materials which total 3882 pages. This estimation does not include the time required to extract documents from legacy systems for Part 1 or time needed to be taken for parts of Part 2 for a decision-make to be satisfied that no documents exist.[43] Ms Wong's estimate is higher than the original decision maker's estimate of 55 hours. This is largely because she located additional documents to those located by the original decision maker and considered that a more realistic time taken to review, redact and compile the documents would be two minutes per page.[44]
9. Ms Wong states that the third request would take around 603 hours to complete with the bulk of the hours related to the extraction, review, collation and redaction of the materials which total 10785 pages.[45] Part 2 of the request in relation to details on the amounts spent on office credit cards takes up the bulk of the time at an estimated 532 hours.[46] This estimate was arrived at by taking a sample of documents falling within a 6 month period out of the 70 months that fall within the scope of the request.[47]
10. The total estimated time for processing the estimated 18,815 pages that are relevant to the requests is between 986 and 1,223 hours of processing time.[48] Ms Dwyer states that it would require a member of the Office's Legal team, at either the APS 6 or EL1 level to work exclusively on processing the requests for a period of approximately 28-35 weeks.[49]
11. I acknowledge that these figures are indeed estimates. However, having considered the nature of each of the requests alongside Ms Wong's detailed breakdown and reasoning on the hours they generate, I find Ms Dwyer's evidence to be reliable. It is apparent that a thorough process was undertaken to arrive at these estimates, with Ms Wong revisiting the initial assessments with fresh eyes. Furthermore, Ms Dwyer conducted her own examination of the documents and selected a sample of ARC documents, performing her own review.[50] Notably, Mr Singh's cross-examination of Ms Dwyer revealed no flaws or inconsistencies that would cast doubt on the accuracy of the estimates provided in her affidavit.
12. Mr Walpole asked me to find Ms Dwyer to be a careful and thoughtful witness which I have no hesitation in doing. I found no aspect of her evidence to be disingenuous. I found her to be candid and frank, and she presented admirably before the Tribunal.
13. I also consider Ms Wong and Ms Dwyer to be persons with appropriate knowledge and expertise to assess the documents. Ms Dwyer is of appropriate seniority and experience. Ms Dwyer states in her affidavit that she is one of five Senior Assistant Ombudsmen at the Ombudsman's Office and among other things has oversight of the Office's in-house legal team. Ms Dwyer's affidavit states that Ms Wong is an experienced FOI practitioner and has worked across a number of Australian Government agencies in that capacity.[51] She also states that Ms Wong is a Legal Director and together with another Legal Director shares the responsibilities for the Legal Team in the Office.[52] Mr Singh challenged Ms Dwyer's experience with FOI matters in terms of making decisions or being involved in reviews before the Information Commissioner or the Tribunal. Ms Dwyer's response was that while she does not hold herself out as an FOI expert, she said she is certainly comfortable and confident in her ability to understand FOI processes from the experience she has had as a public servant oversighting legal teams that make those first instance decisions and her other experience more broadly in the APS.
14. While I am satisfied that the calculations of the work involved are substantiated, I also appreciate that the number of hours involved is not on its own sufficient to establish that a practical refusal reason has been established.[53]
15. At the hearing the Respondent's counsel, Mr Walpole, contended that while there is no fixed test for what is substantial, it is to be looked at in the context of the resources and size of the agency. Mr Walpole characterised the Ombudsman's Office as a relatively small agency.
16. I queried Mr Walpole about this characterisation so he pointed me to the Australian Public Service Commissioner's website that lists all entities that have staff employed under the Public Service Act 1999 (Cth) and groups them according to their size via APS headcount.[54] The APSC categorises agencies into several groups: micro (fewer than 20 employees); extra-small (20-100); small (101 to 250); medium (251 to 1,000); large (1,001 to 10,000) and extra-large (more than 10,000). The Commonwealth Ombudsman is listed as a medium agency. Although these details were not provided as evidence, I thought it necessary to inform myself of the details of agency size, given that while it seemed apparent that the Office was not a large agency, I also had some doubts about it being characterised as a small agency. When looked at within the context of the categorisation of government agencies, it can be seen that it is at the middle to lower end of the scale in terms of staffing resources.
17. The Applicant contends that the principles expounded by Jagot J in Dreyfus v AG (Dreyfus) [2015] AATA 995 do not support the Respondent's contention that the size of the agency is relevant.[55] The difficulty I have with this submission is that His Honour was addressing the less common case of what it means to 'substantially and unreasonably interfere with the performance of the Minister's functions'. He acknowledges it is necessary to consider how such interference might take place in the context of a minister's role.[56] However, I accept the Applicant's contention that Dreyfus is relevant to considerations of including consultation in an agency's estimate of time if the requirement to do so does not arise under the FOI Act.[57] (Not that I have found estimates of consultation to be inappropriately included in the estimates of time in relation to each of the requests.)
18. I agree with the (now) Deputy President's O'Donovan's view that it is important to have a proper frame of reference when considering the threshold set by the term 'substantially'.[58] As stated above he concluded that in the context in which s 24AA of the FOI Act appears the word 'substantially' refers not to a large diversion of resources but merely to one of substance.[59]
19. In my view, assessing whether a diversion of resources is one of substance also means considering the size of the agency, because the time involved has different resource implications for an extra-large government agency compared to a medium or a small government agency. Most Tribunal cases and the FOI Guidelines confine the consideration of agency size to the assessment of reasonableness, but I consider it apt to determining whether the number of hours is one of substance in that it would impose a heavy burden on the Respondent.
20. With the benefit of the Respondent's evidence, I consider that the resources that would have to be used to undertake the activities listed in s 24AA(2) of the FOI Act in the context of the Office's size and the resources it has available to it, is substantial for each request. In the context of the resources available to the Ombudsman's office, the time involved with the first and third request is substantial - and even the second request, though smaller than the other two, still constitutes a substantial amount of time.

1. I next need to consider the factors relevant to determining whether the diversion of resources is unreasonable. To do so the other matters that may be relevant to deciding whether a practical refusal reason exists listed above at [14] provide a useful scaffold.

The staffing resources available to the agency for FOI processing

1. The FOI Guidelines state that there may be circumstances where the processing of a request would have a substantial effect on the agency but that effect may not be unreasonable in the circumstances.[60] I consider in assessing unreasonableness the size of the agency is again a relevant consideration.
2. It was the view of Senior Member Puplick that a very large and well-resourced agency may find it much less burdensome to deal with a request than a small agency especially if it has resources such as a dedicated FOI team.[61] He also said that in contrast in small agencies it has been accepted that consideration should be given to the availability of the resources likely to be necessary to comply.[62] The Senior Member also said 'that what constitutes valid practical refusal grounds is thus agency specific and resource dependent. Nevertheless for any agency, a burden in excess of 200 hours would almost certainly make the threshold of a rational and objective test. As is illustrated above, burdens as (relatively) small as 74 hours have been so characterised.' [63]
3. During Ms Dwyer's cross-examination by Mr Singh, Ms Dwyer's response to Mr Singh's questions regarding if the Ombudsman is making any effort to allocate the additional resources it has received in recent years to its FOI obligations, was that while the resourcing overall of the Office may have increased so too has the Ombudsman's statutory functions. She explained that additional funding is linked to additional functions and so while it may appear the Office has more money, the Office also has more functions. She also explained that some of the Office's functions are not currently funded but still are required to be performed.
4. Ms Dwyer also confirmed under cross-examination that processing each of the requests would involve almost all areas of the Office and that she would not consider it appropriate to bring in additional resources to process them.
5. At the hearing, I was informed that the Ombudsman's Office has 321.37 full time equivalent staff (FTE) and Ms Dwyer's evidence was that currently the legal team has 6.6 FTE. There is not a separate dedicated FOI team or FOI officer. FOI requests are allocated to an officer from the legal team who then becomes the 'FOI officer' for that request.[64]
6. I have found above the diversion of agency resources in relation to each of the requests is significant and given the resources available to the Office are not within its capacity to process. I am also satisfied that the effect on the Office of processing each of the request would be unreasonable in the circumstances of a medium agency with finite resources and lacking a dedicated FOI team or officer.

Does processing the request requires the specialist attention of a senior officer, or can it only be undertaken by one or more specialist officers in the agency who have competing responsibilities?

1. Ms Dwyer's evidence is that the way resources are deployed in the Legal team is that the processing of the request, whether combined or separate, would be done by one member of the Legal team working exclusively on the requests for a period of approximately 28 to 35 weeks.[65] She also states that she does not consider that it would be appropriate to source staff from outside of the Legal team to undertake this work as a technical understanding of the FOI Act is required.[66]
2. Ms Dwyer further states the sensitive nature and substantial complexity of the requested documents requires specialist attention and advice from senior officers, in addition to the external consultations.[67] She considers that given the complexity of these requests, the work would predominantly need to be undertaken by, or substantially involve, a relatively senior officer in the Legal team, being either one of the APS 6 Legal Officers or the current EL 1 Senior Legal Officer.[68] It would also require EL2 Director sign off.[69]
3. In my view, if a single senior member out of a team of 6 to 7 FTE is dedicated exclusively to processing each request for the time estimates give for each request, it would not only take them away from their broader responsibilities within the Legal team and Office, but it would also put additional pressure on the remaining Legal team members to either handle the extra workload or turn down requests for legal advice including in relation to FOI matters.
4. I also consider it to be an unreasonable diversion of resources to engage a specialist contractor to carry out the processing of the requests. Ms Dwyer's evidence was that the Office is required to carry out its functions with limited resources and some functions are unfunded. Engaging a contractor which would presumably cost more than devoting an employee to the task would therefore result in the diverting of even more resources.
5. Both these factors support the conclusion that the diversion of resources is unreasonable in relation to each request.

What impact does processing of each request have on other work in the agency, including FOI processing?

1. I have already touched on the impact that processing each request may have on other work in the agency. Mr Walpole argued in closing, the impact on processing the request/s would divert officers in the Legal team from the performance of their other functions and this would have the flow on effect of affecting the performance of other functions of the Office. This would also impact the processing of other FOI requests. This means that the work of officers outside of the Legal team would also be impacted by the processing of each request.
2. Ms Dwyer states that the legal officers processing each request would not be available to perform other functions of the Legal team, such as processing other FOI requests, managing litigation, and providing legal advice in support of performance of the other functions of the Office.[70] The result she states would be to cause delay and potential non-compliance with statutory timeframes connected with those other functions.[71]
3. Both these factors support the conclusion that the diversion of resources is unreasonable in relation to each request.

Is there significant public interest in the documents requested?

1. It is apparent that Mr Singh thinks there is a significant public interest in the documents requested in each request. Mr Singh explained in closing that the current and previous Ombudsman before him release very small amounts of information administratively compared to a former Ombudsman. In his reply to the Respondent's SFIC Mr Singh states:

'... this whole mess is the Respondent's own making. As deposed in the Applicant's affidavit during 2018 the respondent refused to investigate a serious complaint against the then Immigration Department (ID) which the Applicant had brought in his representative capacity. Acting on the ID's explanations the respondent refused to investigate. Such refusal has striking resemblance to the manner in which the Respondent handled his own motion investigation into Services Australia Robodebt scandal which the Commission found wanting. Some of the Applicant's request relate to or is directly intertwined with the Respondent's involvement with the Robodebt scandal, the Commission's findings, monies spent to attend the hearing and the workings of respondent's Audit and Review Committee (ARC).'

2. As Mr Walpole submitted the kinds of documents requested have limited public benefit overall as they are specific internal documents or machinery in nature. While I certainly understand the importance of ensuring the accountability of an agency set up to ensure government accountability, I am unable to be convinced by Mr Singh's submission that there is a significant public interest in the release of more detailed information on the Ombudsman's administration and financial and governance performance sought in each request. In short, I am unclear as to what, if anything, would be revealed by the release of the further documents that is not already ascertainable from the materials presently available to the public regarding whether the Office is meeting the high standards of governance, financial performance and accountability expected of Commonwealth entities under the PGPA Act and findings arising from the Robodebt Royal Commission.
3. As simply put in the Respondent's reply it is unreasonable for an agency to have to divert such a substantial amount of resources to process very broad FOI requests which would only result in the release of very specific information about matters of general administration.[72] The reply also points out that it would potentially be a different question, at least in terms of the 'unreasonable', if the requests sought targeted information about a specific issue of high public importance.[73]
4. This also supports the conclusion that the diversion of resources is unreasonable in relation to each request.

What are the other steps taken by the agency to publish information of the kind requested by the applicant?

1. For good public policy reasons of ensuring that public money and resources are being used effectively and lawfully Commonwealth entities have significant public reporting responsibilities under the PGPA Act and rules. Consistent with those obligations, the Office has published information of the kind that has been requested by the Applicant although I acknowledge this may not be to the level of granularity the Applicant desires.
2. What is not clear to me from Mr Singh's evidence is whether an examination of the publicly available information required to be published by the Ombudsman has uncovered serious concerns about its administration and financial and governance performance or whether those concerns are purely speculative based on a suspicion or apprehension and therefore amount to a trawling of documents that may possibly be used to impugn the Ombudsman's reputation. However, I am conscious that in deciding whether a practical refusal reason exists, I must not have regard to any reasons that the applicant gives for requesting access; or my belief as to what the applicant's reasons are for requesting access. I find that in examining many of Mr Singh's contentions I am tempted to stray into that territory.

Has Mr Singh cooperated in framing a request to reduce the processing workload?

1. As set out above, Mr Singh decline to engage in the consultation stage of the process. I can see given the nature of some aspects of the requests that as suggested by the Respondent some of the information being sought could be processed promptly if severed from the more burdensome aspects of the requests. I find this to be relevant to the consideration of unreasonableness. However, I also take into account what the Applicant has described as the acrimonious relationship between him and the Respondent which may have clouded his view regarding the futility of such engagement. Mr Singh also agreed to the Respondent's request regarding extension of the initial statutory processing time.[74]

1. At the hearing Mr Walpole said that a number of matters raised by Mr Singh are potentially irrelevant to the Tribunal's inquiry and the statutory test. Mr Walpole said that this matter is not a broad inquiry into the operations of the Ombudsman's office but whether in the Tribunal's view there is a substantial and unreasonable diversion of resources involved in processing these requests whether considered together or separately.
2. In closing, Mr Singh clarified that he accepted that the FOI Act has not changed and therefore the cases the Respondent relies upon to establish the hours that are consider 'substantial' for a large agency do exceed the number of hours the requests in this matter will take to process. He accepted that the Tribunal is applying the FOI Act but that the Tribunal in coming to the correct or preferable decision should be guided by the new objects of the ART Act which have changed from the Administrative Appeals Tribunal Act 1975 (Cth). I find it appropriate to make some observations about this contention.
3. I do not regard that the insertion of a new object into s 9 of the ART Act directed towards improving the transparency and quality of government decision-making has changed the task of the Tribunal in applying the FOI Act and the test in s 24AA of the FOI Act subject to the further observation I make below.
4. The Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (Cth) (Revised EM) provides details of the policy context for the objective clause in the ART Act and states:

'The 1995 Administrative Review Council report 'Better Decisions: review of Commonwealth Merits Review Tribunals' articulated the 'overall objective of the merits review system is to ensure that all administrative decisions are correct and preferable'. This reflected the position endorsed in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, and a line of authority on the role of the AAT and merits review continuing through to the present day. Set against this system-wide objective, this clause provides the objective of the Tribunal. Section 15AA of the Interpretation Act provides that statutes should be interpreted in accordance with their objects.'[75]

5. In relation to the new objective in s 9(d) of improving the transparency and quality of government decision making the Revised EM states:

'Paragraph (d) requires the Tribunal to provide an independent mechanism of review that improves the transparency and quality of government decision‑making. This element of the objective recognises that, in addition to reviewing individual decisions, the Tribunal can provide an important systemic safeguard by identifying systemic issues in government decision‑making. This occurs because avenues of review are an important check on poor decision‑making, and because Tribunal decisions provide guidance to decision‑makers on the making of correct or preferable administrative decisions, particularly through identifying errors. > > The Bill provides the Tribunal with powers and functions that support it to promote transparent and high quality government decision-making. These powers and functions include scope to publish Tribunal decisions generally; an obligation to publish Tribunal decisions that raise significant issues of law or have major implications for Commonwealth policy; an obligation to publish all substantive decisions made by the guidance and appeals panel; and requirements for jurisdictional area leaders to identify systemic issues in administrative decision‑making, and for the President to inform Ministers of those issues. This element of the objective is also supported by the establishment of the guidance and appeals panel, and the re‑establishment of the Council.'[76]

6. A paper delivered by Justice Kyrou, President of the Tribunal, in 2024 outlined the five key mechanisms in the ART Bill designed to thwart Robodebt-type maladministration which are consistent with the mechanisms stated in the Revised EM:

(a) the function of the jurisdictional area leaders to identify and report systemic issues in administrative decision-making > > (b) the establishment of the Guidance and Appeals Panel > > (c) the re-establishment of the Administrative Review Council > > (d) the power of the Tribunal to compel an agency to attend and participate in a hearing > > (e) the requirement that the ART publish certain decisions.[77]

7. As stated in the revised EM the Tribunal's objective to make the correct or preferable decision in relation to a review has not changed. The Court has clearly established that decisions must always be correct on the fact as found and the applicable law, but in a situation where discretion exists and there is more than one possible decision that decision must be the preferable one.[78]
8. Aside from the safeguard mechanisms outlined above as means by which the new object is promoted, it can also be promoted by consistency in decision-making and ensuring there is not divergence from previously decided cases in similar circumstances and from policy guidelines. The often-quoted statements in Re Drake (2) of Brennan J regarding the application of policy to achieve consistency in administrative decision making while ensuring individual cases are considered on their merits is apposite:

'Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice...[79] > > ...the integrity of decision-making in particular cases is better assured if decisions can be tested against such policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process,'[80]

1. Having regard to the conclusions reached above, I am satisfied that the amount of work involved in processing each of the requests would substantially and unreasonably divert the Respondent from its other operations. I am satisfied that a practical refusal reason exists for each of the requests. I consider this to be the correct decision on the facts as found and according to the applicable law.
2. I note that it remains open to the Ombudsman to give administrative access to the documents that it has previously stated could be processed promptly even if they form part of a request refused for a practical refusal reason.[81]

Ms Catherine Petre, Australian Government Solicitor

[1] Respondent's Statement of Facts, Issues and Contentions (RSFIC) at [6].

[4] Chief Executive Officer, Services Australia v Farrell [2020] AATA 2390 at [22] with reference to Senior Member Puplick's observations in VMQD v Cmr of Taxation (Freedom of Information) [2018] AATA 4619 at [59].

[13] Singh at [13]; Applicant's reply to Respondent's SFIC (Applicant's reply)

[15] Singh at [14] and reply at [26].

[26] [2020] AATA 2390 at [51].

[39] Annexure KLD-1 at [27] and [18].

[40] Annexure KLD-1 at [30] and [18].

[53] VMQD and Commissioner of Taxation [2018] AATA 4619 at [82].

[54] APS Agencies - size and function | Australian Public Service Commission, accessed 10 April 2026.

[58] Chief Executive Officer, Services Australia and Farrell [2020] AATA 2390 at [42].

[61] VMQD and Commissioner of Taxation [2018] AATA 4619 at [84].

[62] At [50] quoting Tate and Director, Australian War Memorial [2015] AATA 107 at [45],

[77] Kyrou J, Mechanisms in the ART Bill to thwart Robodebt-type maladministration, Australian Academy of Law Conference, 18 March 2024.

[78] Drake v Minister for Immigration (1979) 24 ALR 577 (Re Drake (No. 2)); Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.