4. On 3 August 2020, an authorised officer in the department made a decision to:

(a) in relation to part 2, 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, and > > (b) in relation to parts 1, 3 and 4, identify five relevant documents and: > > > (i) grant access in full to documents 1 and 2 > > > > grant access in part to document 3 and refuse access to documents 4 and 5 under ss 47C, 47D, 47E(a), 47E(b), and 47E(d) of the FOI Act.

5. On 25 August 2020, the Applicant applied for internal review of the primary FOI decision.[2]
6. On 24 September 2020, an authorised officer in the department made the reviewable decision to:[3]

(c) In relation to part 2, affirm the primary FOI decision made under s 24A of the FOI Act that the document did not exist; > > (d) In relation to parts 1, 3 and 4, identify five relevant documents and: > > > (i) grant access in full to documents 1 and 2; > > > > (ii) refuse access in part to documents 3, 4 and 5 under ss 47D, 47E(a), 47E(b) and 47E(d).[4]

7. On 3 November 2020, the Applicant sought an Information Commissioner (IC) review of the reviewable decision.[5]
8. On 26 April 2023, the Applicant requested the OAIC to finalise the IC review under s 54W(b) of the FOI Act.[6] Subsequently, the OAIC finalised the IC review under s 54W(b) of the FOI Act, enabling the applicant to apply directly to the Tribunal for review.
9. In December 2023 and February 2024, the department made offers to the Applicant to resolve the matter by providing access, on a confidential basis and subject to signing a non-disclosure agreement, to certain further information in documents 3 and 4:

(a) the JSCI points associated against the Applicant's responses contained in document 4, and > > (b) the Applicant's JSCI scores as at 25 September 2018, 12 April 2019 and 27 March 2020 contained in document 3.[7]

10. The Applicant rejected the first offer and did not respond to the second offer.[8]

1. The issues for determination by the Tribunal are:

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

1. The evidence in these proceedings is the affidavit of Andrew Wright dated 16 August 2024 (Wright affidavit). At the time of the making of the affidavit Mr Wright was acting Assistant Secretary, Access and Participation Branch, in the department.

1. 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.
2. The Respondent contends that the documents which the Applicant presses before this Tribunal are exempt pursuant to s 47E(a), 47D and 47E(d) of the FOI Act:
   • Section 47E conditionally exempts a document where disclosure would, or could reasonably be expected to, prejudice or have a substantial adverse effect on certain identified agency operations. There are 4 separate grounds for the conditional exemption. Relevantly, a document is conditionally exempt if its disclosure under the FOI Act would, or could reasonably be expected to, do any of the following:

(a) prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency > > (d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

• Section 47D conditionally exempts documents where disclosure would have a substantial adverse effect on the financial or property interests of the Commonwealth or an agency.

3. Section 11A(5) of the FOI Act provides that access must generally be given to a conditionally exempt document unless it would be contrary to the public interest.
4. Section 11B(3) of the FOI Act lists the factors to be taken into account in deciding whether access to a conditionally exempt document would be, on balance, contrary to the public interest under s 11A(5):

(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A); > > (b) inform debate on a matter of public importance; > > (c) promote effective oversight of public expenditure; > > (d) allow a person to access his or her own personal information.

5. Section 11B(4) of the FOI Act lists the factors that must not be taken into account in deciding whether access would, on balance, be contrary to the public interest:

(a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government; > > (b) access to the document could result in any person misinterpreting or misunderstanding the document; > > (c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made; > > (d) access to the document could result in confusion or unnecessary debate.

6. Section 11B(5) of the FOI Act provides that in working out whether access to the document would, on balance, be contrary to the public interest regard must be had to the Guidelines issued under s 93A of the FOI Act (FOI Guidelines).

1. In his affidavit Mr Wright explains the operation of the Australian Government's primary employment service Workforce Australia, which the department administers.[9] He states that Workforce Australia comprises two main streams:

(a) an online service (Workforce Australia Online) for those who are at low relative risk of long term unemployment (have a JSCI score below a certain threshold) and able to self manage their own requirements, and > > (b) a stream delivered by providers (Workforce Australia Services) for those who need more assistance (have a JSCI score above a certain threshold) and are not given the option to participate in online servicing.[10]

2. Mr Wright also states that the majority of individuals who participate in employment services are required to participate in those services as a condition of eligibility for unemployment payments such as JobSeeker Payment.[11]
3. Mr Wright also explains that the department also administered ParentsNext, which was a pre employment program designed to help eligible parents overcome the disadvantage that can arise from long periods out of the labour market while they are caring for children.[12] It was explained at the hearing that when the program was compulsory for parents of young children receiving Parenting Payment the JSCI was used to assess disadvantage. It was further explained that the ParentsNext program has now ended and a new system has been established and that JSCI has not been relevant for referral to the ParentsNext program since 2021. Nor is it relevant to eligibility for the new program which replaced it.
4. Mr Wright explains that the JSCI is a tool that is used to identify an employment services participant's risk of long term unemployment and determine the level of service needing to be provided.[13] He also explains the JSCI is based on a statistical model that determines a participant's relative level of disadvantage in the labour market based on their individual circumstances.[14] He further explained it was developed based on research in 1997 and was first used in the Job Network (Employment Services) system from 1 May 1998, and in subsequent Employment Services systems.[15]
5. Mr Wright states that almost all claimants or recipients of JobSeeker Payment and Youth Allowance (other) are required to complete the JSCI (totalling 892,000 individuals as at March 2024). In addition, recipients of Parenting Payment Single who have a youngest child aged 6 and over, and nominated visa holders receiving Special Benefit, are required to complete the JSCI.[16]
6. In his affidavit Mr Wright explains how the JSCI assessment process works:

(a) the JSCI is embedded in the Job Seeker Snapshot, which is an online questionnaire that unemployment payment recipients are directed to complete after completing an income support claim with Services Australia > > (b) when completed through the Job Seeker Snapshot, the JSCI assessment involves a participant providing responses to up to 51 questions (including up to 49 JSCI questions), covering a total of 22 JSCI factors. The questions relate to JSCI factors that reflect different aspects of labour market disadvantage including participant's work experience, education, language, descent origin, work capacity, living circumstances, transport and personal circumstances. The majority of questions provide options for a person to select an answer, while some questions are 'free text' > > (c) the number of questions displayed for a participant depends on various factors, such as the answers provided to previous questions. For example, participants who identify that they have a vocational qualification are asked additional questions about that qualification > > (d) the JSCI points are derived from a statistical model that measures the impact of various factors, such as a participant's demographic characteristics and local labour market conditions, or the likelihood of participants becoming or remaining long term unemployed > > (e) these factors are assigned a points value, with higher points indicating a higher level of relative disadvantage. The points are weighted to indicate the average contribution that a factor makes to a participant's difficulty in finding and maintaining employment > > (f) participants can view their answers to the Job Seeker Snapshot and update their answers up to twice per day > > (g) participants (as well as providers) cannot see the points allocated to each question or their overall JSCI score, and > > (h) certain information about the JSCI is publicly available, including the 49 JSCI questions which form part of the 51 question Job Seeker Snapshot.[17]

1. First, I will consider whether the statutory criteria for the conditional exemptions are met, and if so, I will then consider whether disclosure of the documents would, on balance, be contrary to the public interest.

Section 47E(a) - Prejudice to the effectiveness of methods for conducting tests, examinations or audits

1. The FOI Guidelines provide examples of testing methods considered by the Information Commissioner (IC) and the Tribunal:
   • safety audits and testing regimes
   • licensing board examinations
   • risk assessment matrices
   • compliance audit indicators and any comparative weighting of the indicators
   • accident investigation techniques
   • tests or examinations leading to qualifications and
   • potential fraud case assessment and analysis tools.
2. The Applicant contends that the JSCI assessment is not a 'test' for the purposes of s 47E(a) of the FOI Act but is instead a factual questionnaire.[18]
3. The Applicant contends that, unlike the circumstances in Crawley and Centrelink [2006] AATA 572 (Crawley) and Re Marko Ascic and Australian Federal Police [1986] AATA 108 (Ascic) their case involves a questionnaire focused on eliciting specific, discrete and objectively verifiable information. This stands in contrast to the Crawley case, which involved a test probing into subjective personal attributes such as a person's thoughts, worries, feelings, attitudes to others, likes and dislikes to identify psychological barriers to work and suitable interventions. Similarly, it differs from the Ascic case, which tested a trainee's subjective theoretical knowledge of police detective work.[19]
4. The Respondent contends that the JSCI assessment is a 'test' for the purposes of s 47E(a) of the FOI Act.
5. The Respondent relies on the Wright affidavit to contend that the JSCI assessment essentially involves determining a participant's relative level of labour market disadvantage to ensure they receive the appropriate level of employment services support.[20] The Respondent further contents that the completing of the JSCI assessment involves the answering of questions to determine the quantity of something, namely how much a participant is at a disadvantage in the labour market.[21]
6. The Respondent's Statement of Facts, Issues and Contentions (RSFIC) sets out the assessment process:[22]

The JSCI assessment is completed through the Job Seeker Snapshot by participants or employment services providers (providers) in connection with various employment services programs, including historically ParentsNext. The Job Seeker Snapshot is an online questionnaire containing up to 51 questions relating to 22 JSCI factors that reflect different aspects of labour market disadvantage. > > Each response to a question is assigned a corresponding number of points, and some points may be derived depending on the responses, reflecting their relative level of disadvantage and based on a statistical model. > > A participant's JSCI score is calculated by totalling the JSCI points assigned or derived. > > If a JSCI score is over a certain threshold, a participant is automatically referred to a provider and is not offered online servicing.

7. The Respondent contends that there is no requirement for 'tests, examinations or audits' to be subjective in nature for the purposes of s 47E(a) of the FOI Act and in any event not every question in the JSCI is something that can be verified in a purely objective sense.[23] For example, there are several questions based on the participant's subjective view including the one identified by the Applicant, namely:

Are there any other factors which you think might affect your ability to work, obtain work or look for work that we haven't already discussed?[24]

8. The Respondent directed the Tribunal to the decision of Deputy President Forgie in Staff Development and Training Centre and Secretary, Employment, Workplace Relations and Small Business[25] where she considered the predecessor to s 47E(a) in the context of an Operations Manual which recorded procedures and methods for testing the financial viability of tenderers for Commonwealth contracts, stating:

100. ... I have looked to the ordinary meanings of those words in so far as those meanings are relevant. "Test" means "... That by which the existence, quality, or genuineness of anything is or may be determined ...". "Examination" means "... The action of testing or judging by a standard ... Investigation by inspection or experiment ...". "Audit" means "... Official examination of accounts with verification by reference to witnesses and vouchers ..." (The New Shorter Oxford English Dictionary, 3rd edition, 1993). > > 101. The procedures set out in the Operations Manual are not an audit as there is no examination of each tenderer's accounts with a view to verifying them. There is an assessment of the information given by the tenderers and against certain criteria. Certain checks of tenders may be carried out but they do not extend to the checks envisaged by an audit and, in particular, do not extend to a check and verification of the tenderers' accounts. The tenders are scrutinised by reference to certain standards. Enquiries are made and an assessment made. That is an examination in the sense of an enquiry or investigation. It is also a test in the same sense.

9. As the Respondent points out the FOI Act does not define 'tests', 'examinations' or 'audits', so it is appropriate to look to the meaning in the Macquarie Dictionary which defines 'test' as 'that by which the presence, quality, or genuineness of anything is determined; a means of trial'. [26]
10. I am not persuaded by the Applicant's argument regarding the objective nature of the JSCI questions, particularly when consideration is given to the examples of testing and other methods provided in the FOI Guidelines. The examples of tests, examinations and audits indicate that they inevitably involve assessing both subjective and objective factors.
11. I have examined an unredacted copy of document 4. I consider the JSCI assessment is 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. In that sense, it is similar to any risk assessment process that aims to identify and evaluate the sources or degrees of harm - whether they come from fact-based or value-based considerations - in order to eliminate or minimise that harm.

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.

1. The FOI Guidelines require the decision maker to address both elements of the conditional exemption in s 47E(a):
   • an effect would reasonably be expected following disclosure
   • the expected effect would be, overall, prejudicial to the effectiveness of the procedure or method of the audit, test or examination being conducted.[27]
2. The FOI Guidelines also say:

The decision maker should explain how the expected effect will prejudice the effectiveness of the agency's testing methods. A detailed description of the predicted effect will enable a comprehensive comparison of the predicted effect against the usual effectiveness of existing testing methods. The comparison will indicate whether the effect would be prejudicial.[28]

3. The FOI Guidelines say that for the grounds in ss 47E(a)-(d) to apply, the predicted effect needs to be reasonably expected to occur. The FOI Guidelines also say that the mere risk, allegation, possibility, or chance of prejudice does not qualify as a reasonable expectation and that there must be, based on reasonable grounds, at least a real, significant or material possibility of prejudice.[29]
4. Prejudice is not defined in the FOI Act, so takes its ordinary meaning. The FOI Guidelines say that in the context of s 47E(a) 'a prejudicial effect could be regarded as one that would cause a bias or change to the expected results leading to detrimental or disadvantageous outcomes. The expected change does not need to have an impact that is 'substantial and adverse', which is a stricter test'.[30]
5. The Applicant's main contention is 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, just as any claim for social security benefits can be.[31]
6. The Respondent contends that disclosure of the exempt material in the documents in issue 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.[32] It is further contended this would lead to a detrimental outcome for the Commonwealth, '... as it would undermine the fundamental objectives of the JSCI assessment, namely to gather honest and correct information about participants to enable an assessment to be made as to their relative labour market disadvantage.'[33]
7. The Respondent relies on Mr Wright's evidence to support these contentions. The Respondent contends that Mr Wright's evidence establishes that the exempt material in the documents in issue is not publicly known.[34]
8. Mr Wright explains that while the points in the materials are linked to previous models of the JSCI, disclosing this information would still expose sensitive information about the current JSCI model. He notes that even though each JSCI revision represents a more recent sample of job seeker characteristics and their relationship to labour market disadvantage, the overall pattern of results remains broadly consistent across the models for certain factors.[35]
9. Consistent with this Mr Wright outlines the consequences of disclosing the information:

(a) it would make the JSCI assessment vulnerable to fraud in both the participant and provider contexts > > (b) the information would equip participants and providers with the information they need to manipulate the JSCI assessment to obtain a particular JSCI score and outcome from the assessment. He gives the example of participants artificially decreasing their score to access online servicing, and conversely providers artificially increasing a participant's score, with or without their knowledge, to gain a higher outcome payment in respect of that participant > > (c) misuse of the JSCI would undermine its effectiveness as a tool, and > > (d) the results obtained from the JSCI assessment would no longer be accurate and this in turn would impact the delivery of employment services.[36]

10. I give substantial weight to Mr Wright's evidence. Since 2016, he has worked in areas within the department related to employment services. This is a considerable period, and during this time he would have gained in depth knowledge and experience in the operation of the JSCI.
11. Further, the Tribunal only has the evidence of Mr Wright. It would be an error for me to draw inferences without evidence or base my conclusions on my own view or the views of the Applicant unsupported by evidence.[37]
12. I find that the evidence supports that participants or providers being able to manipulate a score to influence the type of employment services to be provided would reasonably be expected to occur following disclosure. I do not consider it to be a mere risk or possibility. Mr Wright has already acknowledged that some degree of manipulation exists. Thus, disclosing how the point system operates would effectively remove a central control that prevents fraud. Since manipulation is already occurring to some extent, it is reasonable to anticipate that this effect would follow from disclosure.
13. This would result in inaccurate scores ultimately undermining the effectiveness of the JSCI as a test. It would no longer be reliable for gauging the level of support a participant needs to overcome their disadvantage in the labour market. Further, there could be over servicing, where providers offer services to participants who do not actually need them and can secure employment with minimal assistance. Having reviewed an unredacted version of the Document 4, I can understand how easily this could occur.
14. I consider this to be consistent with the conclusions in Crawley and Centrelink[38] where the Deputy President said that 'given the likelihood that widespread release or publication of the tests could lead to the prospect that the results obtained would not be accurate: that is, the results would not be an accurate reflection of the subject's honest answer to the questions posed. That would frustrate the whole purpose of administering the tests.'[39]

Section 47D - 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

1. The FOI Guidelines state that for the s 47D conditional exemption to apply the potential effect that would be expected to occur following disclosure must be both substantial and adverse.[40] The FOI Guidelines also state that:

'the term 'substantial adverse effect' broadly means 'an adverse effect which is sufficiently serious or significant to cause concern to a properly concerned reasonable person'. The word 'substantial', in the context of substantial loss or damage, has been interpreted as including 'loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal'.[41]

2. The FOI Guidelines further state that an agency or government cannot merely assert that its financial or property interests would be adversely affected following disclosure but that the particulars of the predicted effect should be identified and supported by evidence.[42]
3. The Applicant states that they cannot see any logical basis for the Respondent's contention that the release of the JSCI point allocation system will potentially mean that the department will pay more to employment service providers in future funding agreements and further no reasons have been provided to support this contention.[43]
4. As stated above, Mr Wright's evidence is that disclosure of the exempt material would make the JSCI assessment vulnerable to fraud causing the department to make unwarranted payments to ineligible providers and participants. In his affidavit, he explains that the JSCI assessment is used by the department to allocate taxpayer funds for employment services.[44] He emphasises that fraud could have a substantial financial impact - for example if the JSCI information was used fraudulently to claim payment in 10% of cases, it could result in $14,720,912 in increased expenditure over a six month period. He further notes that releasing this material would likely force the department to invest significant resources into compliance activities to verify responses, which could be a significant outlay given the number of new entrants each month into the various services.[45]
5. I accept Mr Wright's evidence. It stands as the only probative evidence before me. While I understand and appreciate the Applicant's views, I cannot adopt them because they are not supported by any evidence.

Section 47E(d) - Whether the disclosure would have a substantial adverse effect on the Department's proper and efficient operations

1. The Respondent submits that, for the same reasons given in relation to the other conditional exemptions, release of the material could reasonably be expected to have substantial adverse effect on the proper and efficient conduct of the department's administration of employment services.[46]
2. The Applicant also repeats her responses given in relation to the other issues, and contends that disclosure would have no substantial adverse effect on the department because the JSCI assessment is not a test or examination and even if it is, the release of the JSCI point allocation system will not prejudice or have an adverse effect on the JSCI assessment process because the JSCI can already be manipulated.[47]
3. I find, consistent with my earlier findings, that disclosure would have a substantial adverse effect on the department's proper and efficient operations. In addition to what has already been said, release of the material could result in a substantial change to the department's processes. Mr Wright states that if there was widespread manipulation, he expects that 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.[48] He states that such a development would have substantial impact on employment services administered by three Government departments and on many hundreds of thousands of participants and may also require the development of a new provider payment model and IT systems.[49] He further states it would likely also make it necessary for all existing recipients to undertake retesting, so as to be assessed under the new tool.[50]
4. In the absence of evidence that contradicts Mr Wright, I again accept his evidence.

1. The Applicant submits there is a strong public interest reason in favour of disclosing the documents.[51]
2. The Applicant submits that as the JSCI assessment was used as part of the qualification criteria for Parenting Payment it meant that it was not possible to know the full qualifying criteria and therefore it was not possible to know if the decision to compel a parent to participate in ParentsNext might have been arbitrary or unfair due to the lack of transparency and accountability.[52]
3. The Respondent acknowledges that conditionally exempt material must be released unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest and accepts that there are public interest factors favouring disclosure of the conditionally exempt information, including:
   • - 'informing debate on a matter of public importance, in particular assessing participants to determine eligibility for employment services support
   • - promoting effective oversight of government expenditure, namely payments made to providers and participants
   • - 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, and
   • - providing the applicant with access to her personal information.'[53]
4. I agree that these are important factors favouring the release of documents held by government agencies. However, when considered in the circumstances of this particular case, the Applicant has already been given access to her own responses and was offered the opportunity to review certain aspects of the documents confidentially. Additionally, as mentioned earlier, while the scoring details are 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.
5. I also consider there is 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. I will not reiterate the substantial and adverse impacts already detailed above. Furthermore, I concur with the Respondent that incurring expenses from these impacts without any commensurate public benefit is contrary to the public interest.[54]
6. The Respondent also points out that when determining where the balance of the public interest lies, it is also relevant for the Tribunal to consider that the JSCI has not been relevant for referral to the ParentsNext program since 2021 and is no longer relevant. I understand the Applicant's concern that a future government could reintroduce the program but this is pure speculation and there is no evidence to support such a contention.[55] I am unable to consider as evidence material in the ASFIC regarding parliamentary inquiries as such material comprises 'proceedings in Parliament' within the meaning of s 16(2) of the Parliamentary Privileges Act 1987 (Cth) and it is not lawful for the evidence to be tendered or received as part of Tribunal proceedings.
7. I find the conclusions in Crawley to be apposite. I accept there is a public interest in persons subject to assessment by the employment services system having access to those tests and the mechanisms for assessing them in order to ensure that they have been undertaken in a fair and proper manner. But there is also an overwhelming public interest in maintaining the confidentiality of that material in order to preserve the effectiveness of the tests and the testing processes. I also consider that the public interest in ensuring that public servants or government service providers administer the testing process in a fair and proper manner is guarded by the qualifications, training and ethics of the professionals who administer those tests.[56]

1. For these reasons, I am satisfied that the documents in issue are exempt from disclosure and that it is not in the public interest that the documents be released at this time.

Melissa Murphy, Australian Government Solicitor

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

[18] Applicant's Statement of Facts, Issues and Contentions (ASFIC) at [14]-[17].

[20] Respondent's Statement of Facts, Issues and Contentions at [38].

[25] [200] AATA 78 at [100]-[101].

[37] See the discussion of Rodriguez v Telstra Corporation [2002] FCA 30 in Comcare v Wuth [2018] FCAFC 13 at [97]- [98].

[38] [2006] AATA 572.

[41] FOI Guidelines at [6.18] with references removed.