1. The applicant provided final submissions on 4 August 2025 and the hearing proceeded on 25 and 26 August 2025 followed by a closed session on 23 September 2025. Prior to the hearing the Respondent had provided a consolidated set of T documents which included supplementary T documents which were before the Tribunal.
2. As is plainly evident from the access requests, there was a significant overlap with respect to the documents requested in the three access requests. This resulted in the Applicant often receiving the same document, such as a file note held by the Child Support Agency, on multiple occasions as part of the three responses to the access requests. The Applicant complains that there are numerous inconsistencies between the redactions made on the same document and that Services Australia has wrongfully redacted material under s 38 of the FOI Act. For reasons expanded on below, the Applicant contends that an error was made in the IC Decisions because the IC accepted as exempt the material that Services Australia found to be exempt under s 38. Therefore, he says, the IC Decisions should be set aside so as to acknowledge those errors.
3. Prior to the hearing, there was some uncertainty as to the extent of the Applicant's challenge in relation to the three decisions under review. At the hearing, the Applicant said that the Respondent had "incorrectly redacted words using section 38"[8] and that "Services Australia have broken the law by releasing information."[9] The Applicant clarified the extent of his challenge to the IC Decisions by identifying the passages in the IC's reasons which were being challenged.
4. At the conclusion of the hearing on 26 August 2025 the Tribunal directed that the Respondent provide an updated statement of facts, issues and contentions and an updated schedule of documents in issue by 9 September 2025; that the Respondent attend a closed hearing on 23 September 2025 for the purpose of making submissions dealing with the documents in issue; and that the Applicant provide submissions in response to the updated statement of facts, issues and contentions and the updated schedule of documents in issue by 30 September 2025.
5. As a result of a request by the Tribunal to both parties for further submissions, the Respondent provided written submissions on 1 October 2025. Those submissions considered whether it was open to the Tribunal to find that the whole of documents 1, 2 and 3 are fully exempt under s 38(1) of the FOI Act. I have considered those submissions but decided in the circumstances to not express a view because the hearing on 25 and 26 August 2025 proceeded on the basis that the Applicant was seeking to set aside the IC Decisions, and the Respondent was seeking an affirmation of the IC Decisions; and because no party contended at the hearing that the documents were fully exempt.

1. The procedural history including the updated schedule of documents in issue is important because it reflects the fact that the Tribunal and the primary decision-maker exist within an administrative continuum.[10] The review by the Tribunal is a merits review process by which the Tribunal determines the correct or preferable decision in the circumstances before it. The Tribunal stands in the shoes of the original decision-maker but makes a decision on the material before it. The circumstances in which the Tribunal is to make its decision include the updated schedule of documents in issue which reflect the disclosure of some documents to the Applicant after the IC Decisions were made. The question for the Tribunal is whether the documents in the updated schedule are exempt from disclosure. In that sense the Tribunal has moved on from the particulars of the decisions made by the IC which the applicant erroneously focuses on.
2. Section 58 of the FOI Act reflects the broad powers that the Tribunal has on review. It provides:

58(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.

1. It follows that when conducting a review of an IC decision, the Tribunal may decide any matter in relation to the request that could have been or could be decided by Services Australia. As previously stated, the matter to be decided (which could have been decided by Services Australia) is whether the documents in the updated schedule of documents in issue are exempt from disclosure under s 38 of the FOI Act. The scope of the Tribunal's powers for the purposes of the review are not confined to the terms of the IC decisions. The approach of the Applicant to challenge findings made by the IC in the decisions under review is erroneous.
2. In relation to the IC Decisions, the Applicant does not dispute findings that staff details and documents provided through administrative access arrangements were irrelevant under s 22 of the FOI Act. It is not disputed that reasonable searches have been made under s 24A(1) of the FOI Act. Nor is there a dispute with respect to redactions made under the conditional exemptions in ss 47C, 47E and 47F of the FOI Act.[11]
3. Given there was no dispute with respect to the reasonableness of searches and the conditional exemptions, the Respondent decided not to tender an affidavit that had been prepared by Ms Louise Hamilton.[12] Her affidavit provided evidence relevant to the reasonableness of searches and the conditional exemptions, both of which were not being challenged by the Applicant. Consequently, there were no witnesses called at the hearing and it proceeded by way of oral submissions on the documents.
4. The part of Decision 1 challenged by the Applicant relates to findings in paragraph [1] that:
   • the type of material [in document 1] that Services Australia maintains is exempt under s 38 of the FOI Act is not exempt under that provision, and
   • the remaining material that Services Australia found to be exempt under s 38 of the FOI Act is exempt under that provision.
5. The Applicant says that the underlined passage above is wrong.
6. The part of Decision 2 challenged by the Applicant relates to findings in paragraph [1] that:
   • in relation to the material that the Respondent maintains is exempt (s 38):
     1. ...
     2. the remaining material in Documents 1 - 3 must be edited to reflect the IC's findings at paragraphs [30], [38], and [41], noting that aside from those findings, the remainder of the material in Documents 1-3 that Services Australia maintains is exempt (s 38) is exempt under s 38 of the FOI Act, and
     3. ...
7. The Applicant says that the underlined passage above is wrong.
8. The challenge to Decision 3 is similar to the challenge to Decision 2 because the decisions relate to the same documents. The challenge by the Applicant relates to findings in paragraph [1] that:

'...in respect of the material claimed to be exempt under s 38 of the FOI Act in documents 1 - 2 in this matter, documents 1 - 2 must be edited to reflect my findings below in paragraphs [19], [21], and [28]'.

1. At paragraph [19] of Decision 3, the IC adopted the findings in Decision 2 because the material was the same and found the following information in Documents 1 and 2 as not exempt under s 38:

(a) references to relevant legislation or legislative provisions; > > (b) record numbers; and > > (c) other discrete words or phrases that do not meet the definition of 'protected information' for the purposes of the secrecy provisions and have been released elsewhere in the documents at issue in this matter.

2. The Applicant says that the underlined passage above is wrong. There is no dispute with respect to references to legislation and record numbers.
3. At the hearing on 25 and 26 August 2025, the Applicant raised numerous discrepancies between redactions made to the same document released to the Applicant as part of the process of the Respondent responding to the access requests. The Respondent objected to this approach on the basis that there was no utility in identifying past discrepancies when the only issue before the Tribunal was whether the information redacted in the latest version of the schedule of documents in issue was exempt from disclosure under s 38.[13] The Respondent contended that information in a document that had been previously released to the Applicant could be redacted in the schedule of documents in issue. The Respondent said that the fact that some information had previously been disclosed to the Applicant did not mean that it was not exempt from disclosure under s 38. I accept the Respondent's submissions because there is no exception in the secrecy provisions for where the information is in the public domain. As such, there is no basis for an argument that just because a word has been disclosed in one document but redacted in another, that the word is not subject to the exemption in s 38(1) of the FOI Act.
4. I will now turn to consider whether the redacted information in the schedule of documents in issue is exempt from disclosure under s 38(1) of the FOI Act.

1. The documents in issue from the updated schedule of documents are Document 1, Document 2 and Document 3 which have all been partially released.
2. Document 1 is a record of file notes in the Agency's Child Support systems (called "CUBA Notepads") relating to the child support matter to which the Applicant is a party. They include records of telephone and written communications between the Applicant and the Agency to discuss the Applicant's child support arrangements, notes of applications or requests received and decisions made in respect of the Applicant's child support arrangements. They include records of telephone communications between third parties and the Agency relevant to the Applicant's child support arrangements.
3. Document 2 relates to correspondence with government Ministers. It is a record of email and letter correspondence between the Applicant, the Agency and various Ministers. The subject matter of the correspondence is the Applicant's child support arrangements, the Agency's conduct in administering those arrangements and the Applicant's complaints about them.
4. Document 3 relates to other correspondence with third parties.
5. The only issues for determination by the Tribunal are whether the material that has been redacted in the documents in issue are exempt under s 38 of the FOI Act:

(a) In Decision 1: Document 1; > > (b) In Decision 2: Document 1, Document 2, and Document 3; > > (c) In Decision 3: Document 1 and Document 2.

6. In terms of the application of s 38 in this case, the issues to be determined are:

(a) whether the redacted parts of the documents in issue contain "protected information"? > > (b) if they contain protected information, is the information "concerning another person", such that the Child Support Secrecy Provisions apply? > > (c) whether an exception applies (either that the Child Support Acts permit disclosure to the Applicant, or the information is the personal information of the Applicant)?

Do the relevant documents in issue contain "protected information"?

1. The Respondent's position is that the documents in issue in their entirety consist of protected information. There are two elements which need to be met under the Child Support Acts for information to be "protected information":

(a) The information needs to "concern" a person; and > > (b) The information needs to have been disclosed to or obtained by another person, here the Agency, in the course of, or because of, the Agency's duties under or in relation to the Acts, or the information is communicated to a person in circumstances authorised by the relevant section of the Child Support Acts.

2. It is evident from the face of the documents in issue that they contain information that concerns a person, or multiple people, being persons the subject of or relevant to the Agency's child support processes. The documents in issue are child support records, which by their nature "concerns" one or more people. The first element is satisfied.
3. The question as to whether the documents in issue contain information about another person that was disclosed or obtained by another person in the course of, or because of, the other person's duties, or in relation to the Child Support Acts, has been considered by Deputy President Burns in Re Luton v Child Support Registrar:[14]

The phrase "disclosed to, or obtained by" is only qualified in the sense that it must have occurred "in the course of, or because of, the person's duties under or in relation to this Act".

The phrase "in the course of, or because of, the person's duties under or in relation to this Act" is to be given a wide meaning. It is a phrase which is not restricted to instances when an officer is performing functions expressly provided for under the Act, but encompasses ancillary duties of an officer arising from the Agency's general administration of the child support scheme. General administrative tasks which may require the obtaining by, or disclosing to an officer of information would include, for example, the reading of a letter sent to the Agency or the answering of a telephone call, the reading of a file or the interrogating of a computer system for the purposes of responding to an inquiry, or the providing of advice from one officer to another.

1. The child support records comprise information "disclosed to or obtained" by the Agency's child support team in the course of duties exercised under the Child Support Acts. The second element is satisfied.
2. I conclude that the redacted parts of the documents in issue contain "protected information" for the purposes of the Child Supports Acts.

Is the protected information "concerning another person" such that the Child Support Secrecy Provisions apply?

1. The next question is whether the information subject to a claim pursuant to s 38(1) of the FOI Act is prohibited from disclosure under the Child Support Secrecy Provisions. The prohibition on disclosure in subsection 2(b) of each of the Child Support Secrecy Provisions is limited to disclosure which would "directly or indirectly, communicate to a person any protected information concerning another person". The prohibition requires that the protected information relates to another person but would apply if the information relates to another person together with the Applicant. The requirement for the information to concern another person for the purposes of the Child Support Secrecy Provisions creates a significant overlap between this factor and the exception in s 38(2) of the FOI Act which is considered below.
2. Having considered the redacted text subject to an exemption claim under s 38(1) of the FOI Act, I find that the information contained therein is "concerning another person" that is not the Applicant, noting that often the information concerns both the Applicant as well as another person. As such, the information that is redacted is subject to the Child Support Secrecy Provisions and is subject to a prohibition against disclosure.

Does the personal information exception apply under s 38(2)?

1. Having found that the redacted information is prohibited from disclosure under the Child Support Secrecy Provisions, the final question for the Tribunal is whether an exception contained in the FOI Act applies. The relevant exception is s 38(2) of the FOI Act which provides:

(2) Subject to subsections (3) and (3A), if a person requests access to a document, this section does not apply in relation to the document so far as it contains personal information about the person.

1. The FOI Act adopts the definition of 'personal information' set out in the Privacy Act 1988 (Cth):

"personal information" means information or an opinion about an identified individual or an individual who is reasonably identifiable:

(a) Whether the information or opinion is true or not, and

(b) Whether the information or opinion is recorded in a material form or not.

1. The FOI Guidelines further provide at [5.137]:

Section 38 does not apply to documents in so far as they contain personal information about the FOI applicant (s 38(2)). The exception applies only to personal information about the FOI applicant and not to 'mixed personal information', that is, personal information about the FOI applicant which, if disclosed, would also reveal personal information about another individual. If the FOI applicant's personal information can be separated from any third-party personal information, the FOI applicant's personal information will not be exempt under s 38(1) and can be disclosed...

1. There are three categories of documents that have been found to be exempt from disclosure under s 38(1) of the FOI Act in the IC Decisions:

(a) The first category is a document containing information communicated to Services Australia in the context of child support by someone other than the Applicant. These documents contain protected information which concern another person and are therefore prohibited from disclosure under the Child Support Secrecy Provisions. The exception in s 38(2) does not apply because the information is not personal information of the Applicant. > > (b) The second category is a document containing information about a person other than the Applicant where that information has been provided by the Applicant. These documents contain protected information which concern another person and are therefore prohibited from disclosure under the Child Support Secrecy Provisions. Again, the exception in s 38(2) does not apply because the information is not personal information of the Applicant. > > (c) The third category is a document containing mixed personal information which includes child support case numbers and any references to care, assessments, payments and applications in the context of child support. These documents contain protected information which concern another person and are therefore prohibited from disclosure under the Child Support Secrecy Provisions. The information in these documents relate to both child support parties and therefore will not be considered the personal information of the Applicant. The exception in s 38(2) does not apply because the documents contain mixed personal information. The FOI Guidelines at [5.137] state that the exception applies only to personal information about the FOI applicant and not to mixed personal information.

2. The IC correctly adopted this approach in relation to s 38(2) in Decision 1 at paragraphs 33 to 38, in Decision 2 at paragraphs 35 to 40 and in Decision 3 at paragraphs 25 to 30. The Applicant took no issue with respect to these paragraphs of the decisions under review. It follows that there is no dispute that where information is intermingled and cannot be separated, it is exempt under s 38 of the FOI Act and the exception in s 38(2) does not apply. This was the approach taken in 'AIF' and Services Australia,[15] which determined that where information could not be separated, it was exempt even though it may still relate to the applicant's personal affairs.

1. It is apparent from my consideration of the documents in issue that a considerable amount of personal information that is exclusively about the Applicant has been disclosed. For example, there are notes of telephone conversations with the Applicant and letters to and from the Applicant that have only been partially redacted because some of the information is 'mixed personal information', that is, personal information about the Applicant which, if disclosed, would also reveal personal information about another individual. Even if 'mixed personal information' is provided by the Applicant (and would therefore be known to him), the exception in s 38(2) will not apply. The redactions that have been applied in this regard are appropriate.
2. It is my view that the Respondent has appropriately released information which comprises solely the personal information of the Applicant. If the Applicant's personal information is mixed or intermingled with other information, and it cannot be separated and disclosed without revealing the personal information of another individual, then that information has been redacted because it does come within the exception in s 38(2) of the FOI Act. The IC largely accepted this was the case, and insofar that the IC found there was additional information which needed to be released, this has been undertaken by Services Australia.
3. It is my view that the exception in s 38(2) of the FOI Act does not apply to the information that has been redacted in the documents in issue. The information contained in the redacted parts of the documents in issue is exempt pursuant to s 38(1) either because it:

(a) relates to a third party and so is not the 'personal information' of the Applicant; or > > (b) is the personal information of the Applicant and is also the personal information of third parties and is thus information which is intermingled. As such, it is not reasonably practicable to separate the Applicant's personal information from the relevant third party's information and so this information cannot be disclosed pursuant to the s 38(2) exception.

4. It follows that the decisions under review should be affirmed.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

....................[sgd]...................................................

[1] 'ALG' and Services Australia (No. 2) (Freedom of Information) [2024] AlCmr 128.

[2] 'ALG' and Services Australia (No. 2) (Freedom of Information) [2024] AlCmr 194.

[3] 'ALG' and Services Australia (No. 2) (Freedom of Information) [2024] AlCmr 195.

[4] [2013] HCA 52; (2013) 249 CLR 645, 661 at [37].

[6] Child Support (Assessment) Act 1989 (Cth)s 150 (meaning of "protected information"); Child Support (Registration and Collection) Act 1989 (Cth), s 16 (meaning of "protected information").

[7] Applicant's email dated 20 July 2025.

[10] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 93 ALJR 629 at [53].

[11] See the Applicant's 20 July 2025 submissions quoted at [31] above; the Respondent's submissions dated 1 August 2025 at paragraph 3(a) which said that the only issues in dispute are the scope and application of s 38 and the purported amendment request under s 49 of the FOI Act; transcript, p 37 lines 25 to 31, transcript, pp 38 to 41.

[12] See transcript p 5 lines 43 to 46; p 52 lines 27 to 33; p 53 line 12 to p 54 line 16.

[13] Transcript, p 44 lines 26 to 28; p 45 lines 2 to 3.

[14] [1999] AATA 808.

[15] [2024] AICmr 51 at [39].