Our reference: FOI 20/21-0842
GPO Box 700
Canberra ACT 2601
1800 800 1108 July 2021 ndis.gov.au
Shirley By email: foi+request-7396-41a25077@righttoknow.org.au
Dear Shirley
Freedom of Information request — Notification of Decision
Thank you for your request of 8 June 2021, under the Freedom of Information Act 1982 (FOI Act) for copies of documents held by the National Disability Insurance Agency (NDIA).
Scope of your request You have requested access to the following documents about the National Disability Insurance Scheme (NDIS):
“…copy of the current NDIA Whistleblower [sic] policy and all prior versions. For clarity, that is all NDIA whistleblower policy/ies [sic] from 2013 until Jun 2021.
For context, The Australian Securities & Investments Commission (ASIC) advises [1] that: “The Corporations Act 2001 (Corporations Act) provides a consolidated whistleblower [sic] protection regime for Australia’s corporate sector. The regime requires public companies, large proprietary companies and proprietary companies that are trustees of registrable superannuation entities to have a whistleblower [sic] policy and make the policy available to their officers and employees.”“[2:4].
The Agency does not seem to have exemption under recent adjustments [3]”
The purpose of this letter is to provide you with a decision on your request.
Decision on access to documents I am authorised to make decisions under the FOI Act. My decision on your request and the reasons for my decision are set out below.
I have decided to refuse your request for access under section 24A of the FOI Act on the basis that all reasonable steps have been taken to locate the documents you have requested and I am satisfied that they cannot be found or do not exist.
In reaching my decision, I took into account:
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your correspondence outlining the particulars of your request;
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the FOI Act;
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the FOI Guidelines; and
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consultation with relevant officers of the NDIA.
1
Reasons for decisions
Refuse a request for access (section 24A)
Section 24A of the FOI Act provides that an agency may refuse a request for access to a document if all reasonable steps have been taken to find the document and the agency is satisfied that the document cannot be found or does not exist.
The NDIA is not in possession of documents matching the scope of your request. This is because the NDIA is not registered under, nor is it subject to, the Corporations Act 2001 (Cth). The links cited within your request relate only to private organisations. Accordingly, the NDIA does not have a policy as you have cited in your request.
I am satisfied that the documents you are seeking are not held by the NDIA. I have therefore decided to refuse access to your request in accordance with section 24A(1)(b)(ii) of the FOI Act.
The NDIA is established under s 117(1) of the National Disability Insurance Act 2013 (Cth) and is a corporate Commonwealth entity for the purposes of the Public Governance, Performance and Accountability Act 2013 (Cth). Government agencies, including the NDIA, are centrally governed by the Commonwealth Ombudsman.
The equivalent “whistleblower [sic] ” process for the government sector falls under the Public Interest Disclosure Act 2013 (Cth). Information about the NDIA public interest disclosure procedures can be found on our website here.
Rights of review
Your rights to seek a review of my decision, or lodge a complaint, are set out at Attachment A.
Should you have any enquiries concerning this matter, please do not hesitate to contact me by email at foi@ndis.gov.au.
Yours sincerely
Marguerite Wilson-Foreman Assistant Director FOI Parliamentary, Ministerial & FOI Branch Government Division
Attachment A
Your review rights
Internal Review
The FOI Act gives you the right to apply for an internal review of this decision. The review will be conducted by a different person to the person who made the original decision.
If you wish to seek an internal review of the decision, you must apply for the review, in writing, within 30 days of receipt of this letter.
No particular form is required for an application for internal review, but to assist the review process, you should clearly outline your grounds for review (that is, the reasons why you disagree with the decision). Applications for internal review can be lodged by email to foi@ndis.gov.au or sent by post to:
Freedom of Information Section Parliamentary, Ministerial & FOI Branch Government Division National Disability Insurance Agency GPO Box 700 CANBERRA ACT 2601
Review by the Office of the Australian Information Commissioner
The FOI Act also gives you the right to apply to the Office of the Australian Information Commissioner (OAIC) to seek a review of this decision.
If you wish to have the decision reviewed by the OAIC, you may apply for the review, in writing, or by using the online merits review form available on the OAIC’s website at www.oaic.gov.au, within 60 days of receipt of this letter.
Applications for review can be lodged with the OAIC in the following ways:
- Online: www.oaic.gov.au
- Post: GPO Box 5218, Sydney NSW 2001
- Email: enquiries@oaic.gov.au
- Phone: 1300 363 992 (local call charge)
Complaints to the Office of the Australian Information Commissioner or the Commonwealth Ombudsman
You may complain to either the Commonwealth Ombudsman or the OAIC about actions taken by the NDIA in relation to your request. The Ombudsman will consult with the OAIC before investigating a complaint about the handling of an FOI request.
Your complaint to the OAIC can be directed to the contact details identified above. Your complaint to the Ombudsman can be directed to:
- Phone: 1300 362 072 (local call charge)
- Email: ombudsman@ombudsman.gov.au
Your complaint should be in writing and should set out the grounds on which it is considered that the actions taken in relation to the request should be investigated Division.