Freedom of Information - Whether documents are subject to legal professional privilege - Whether disclosure would have a substantial adverse effect on the management or assessment of personnel - Whether contrary to public interest to release conditionally exempt documents - (CTH) Freedom of Information Act 1982 ss 11A, 42 and 47E(c)

1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the internal review decision of the Department of Defence (the Department) of 23 March 2021.
2. I substitute my decision that:
   • the material the Department no longer maintains is exempt[1] is not exempt
   • the material the Department maintains is exempt under s 42 of the FOI Act is exempt under that provision
   • the material the Department maintains is conditionally exempt under s 47E(c) of the FOI Act is conditionally exempt under that provision and release would be contrary to the public interest at this time, and
   • the material the Department claims is exempt under s 38 and conditionally exempt under s 47F is outside the scope of this review and therefore exempt.[2]
3. Within 28 days of this decision:
   • The Department must provide the applicant with a copy of the documents, edited under s 22 of the FOI Act only to the extent necessary to delete exempt or irrelevant material, and
   • The Department must advise the Office of the Australian Information Commissioner (OAIC) whether it has fully implemented my decision or whether it will be seeking review of the decision by the Administrative Review Tribunal (ART).

1. This decision discusses the application of ss 42 and 47E(c) of the FOI Act to documents regarding a specified investigation concerning the Australian Defence Force (ADF). It is primarily of interest to the parties in relation to the specific documents sought but provides an example of when legal professional privilege applies to communications with internal legal advisers including where those legal advisers are ADF members.

1. On 12 December 2020, the applicant applied to the Department for access to documents in relation to the specified investigation.
2. On 11 January 2021, the Department identified 48 documents in response to the applicant's request and decided to:
   • release four documents in full
   • release 43 documents in part, on the basis of the exemptions in ss 38, 42, 47E(c) and 47F of the FOI Act, and
   • refuse access to one document in full, on the basis of the exemptions in ss 47E(c) and 47F of the FOI Act.
3. The applicant requested internal review of the Department's decision. On 23 March 2021, the Department varied its original decision by identifying an additional eight documents in the form of email correspondence. The Department refused access to these additional eight documents in full, on the basis of s 42 of the FOI Act. The Department upheld the remainder of the original decision.
4. On 26 February 2025, the OAIC sought further information from the Department, including submissions in response to the effect of the passage of time on the material at issue. In response, the Department withdrew its exemption contentions in relation to certain material.[3] The Department also altered its exemption contentions in relation to certain material.[4]
5. The applicant contends that the documents are not exempt under ss 42 or 47E(c) of the FOI Act.[5]
6. The issues to be decided in this Information Commissioner review (IC review) are therefore:
   • whether the material that the Department maintains is exempt under s 42 of the FOI Act is exempt under that provision, and
   • whether the material that the Department maintains is conditionally exempt under s 47E(c) of the FOI Act is conditionally exempt under that provision, and if so, whether giving the applicant access to the conditionally exempt material at this time would, on balance, be contrary to the public interest (s 11A(5)).
7. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified, or that I should give a decision adverse to the applicant.[6]
8. In making my decision, I have had regard to the following:
   • the Department's original decision and reasons for decision of 11 January 2021
   • the Department's internal review decision and reasons for decision of 23 March 2021
   • the documents at issue
   • the FOI Act[7]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[8] to which agencies must have regard in performing a function or exercising a power under the FOI Act (FOI Guidelines),[9] and
   • the parties' submissions.

Legal professional privilege exemption (s 42)

1. The Department maintains that certain communications contained in the documents at issue are exempt as they are subject to legal professional privilege (s 42).
2. A document will be exempt under s 42 if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege (s 42(1)) and privilege has not been waived (s 42(2)).
3. The term 'legal professional privilege' is not defined in the FOI Act, and as noted in the FOI Guidelines, common law concepts of legal professional privilege are to be applied in determining whether s 42 applies to a document, rather than the statutory test of client legal privilege under the Evidence Act 1995 (Cth).[10]
4. Legal professional privilege protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or in the provision of legal services, such as representation in legal proceedings.[11] The underlying policy basis for legal professional privilege is to promote full and frank disclosure between a lawyer and client to the benefit of the effective administration of justice.[12]
5. At common law, determining whether a communication is privileged requires a consideration of:
   • whether there is a legal adviser-client relationship
   • whether the communication was for the dominant purpose of giving or receiving legal advice, or for use in connection with actual or anticipated litigation
   • whether the advice given is independent, and
   • whether the advice given is confidential.[13]

1. Generally, the Department submits:
   • the material at issue reveals communications between the relevant business area and qualified lawyers within the Department acting in their capacity as independent professional legal advisers, and
   • based on the contents of the documents and advice received from the Office of the Defence General Counsel, the material at issue was prepared for the dominant purpose of giving or receiving legal advice.
2. The Department also submits that there has been no express or implied waiver of the privilege. The correspondence and that the manner of communicating the privileged information does not reveal any inconsistency in maintaining that privilege. Despite material being available to more than one person in the Department, this is to be expected due to the nature of the work undertaken.[14]
3. The applicant, in summary:
   • contests the Department's assertions that the advice provided in the correspondence was provided by independent legal professionals, and
   • contends that the Department failed to adequately address the exceptions to legal professional privilege, specifically that the privilege should not protect the communication where it evidences maladministration.

Legal adviser-client relationship, independence, and confidentiality

1. As I noted in 'AQL',[15] the issue of whether legal professional privilege can apply to advice or communications to or from lawyers working within an agency has been examined in various IC reviews, AAT[16] and Federal Court decisions.[17] It is well established that an independent legal adviser-client relationship can exist between an agency's in-house lawyers and other staff of the agency.[18] Whether a true legal-adviser client relationship exists will be a question of fact, to be determined by reference to:
   • the nature of the lawyer's involvement and the content and circumstances of the communication,[19] and
   • the substance of the communications, subjective intentions of those making them, and objective conclusions that can be drawn from the evidence.[20]
2. The Department provided lengthy submissions in relation to the independence of its internal legal advisors. The Department submits the material at issue contains information provided by both in-house (departmental) lawyers, as well as external lawyers. In either case, it was provided independently. In summary:
   • Uniformed lawyers are an integral part of the ADF and subject to normal military hierarchy and the chain of command. However, this does not, of itself, negate the independence of the advice provided by those lawyers and does not mean that lawyers' advice will be dictated by superior military officers. [21]
   • Determining whether in-house lawyers, both uniformed and non-uniformed, are capable of providing independent legal advice giving rise to legal professional privilege requires an examination of more than just the employment relationship between lawyer and client.[22]
   • A departmental lawyer has the necessary degree of independence so long as their personal loyalties, duties or interests do not influence the professional legal advice they give.[23] This will be established where there is a clear lawyer-client relationship in which the legal officers could be said to bring a mind professionally detached from, or disinterested in, the subject matter of the advice. There is no evidence to suggest this was not the case.
   • The relevant lawyers held practising certificates. While having legal qualifications will not in itself establish that a privileged adviser-client relationship exists,[24] whether the adviser holds a practicing certificate is a relevant factor.[25] Defence legal practitioners must, as a consequence of holding a State or Territory practicing certificate, comply with that State or Territory solicitor or barrister conduct rules.
   • All Defence legal practitioners are subject to legal technical control, which includes the ability to provide binding directions to Defence legal practitioners. This ensures professional standards are met for the consistency of legal advice, and the effective, efficient and ethical provision of legal services.[26]
   • The Department referred to a number of internal policies and directives that apply to Defence legal practitioners, that protect the integrity and professional legal independence of these officers.[27]
3. The Department also submits that the authors marked documents containing redactions under s 42 as 'Sensitive: Legal', conveying the author's intention. The Department concedes that while this does not automatically attract legal professional privilege, the markings demonstrate the intention of the author to limit the distribution of the correspondence, ensure the material was handled appropriately to preserve privilege and limit unintentional waiver of privilege.
4. The applicant submits:
   • Whilst holding a practicing certificate will be a measure of independence, it is not determinative.
   • It should be known whether the legal officers who were involved in the investigation also had any involvement in the administrative action taken and prosecution, as this would constitute a conflict of interest.
5. Having had regard to the documents at issue and the parties' submissions, I find that the communications are between Departmental officers and ADF members employed in legal roles which were organisationally separate from the broader Department and ADF who were communicating with them or with whom they were communicating.
6. Based on the content and context of the documents at issue and the organisational structure above, I am also satisfied that the requisite degree of independence existed between these in-house lawyers and Departmental staff and other ADF members.
7. While the courts have indicated that an in-house lawyer will lack the necessary independence if their advice is at risk of being compromised by his or her personal loyalties, duties and interests,[28] there is nothing before me to suggest that these circumstances arose in the present case. In this regard, I note there has been some judicial consideration about whether a requirement of 'independence' must be separately evidenced.[29] It has been held that 'the better view is that there is no separate requirement to prove that the in-house lawyer was acting independently of any pressure from his or her employer, or had the requisite measure of independence, so long as the in-house lawyer was acting in his or her professional capacity as his or her employer's lawyer and the communication otherwise meets the dominant purpose test'.[30]
8. In light of these considerations, and the parties' submissions, I am satisfied that the documents to which the Department has applied the exemption in s 42 of the FOI Act, were created in the context of a legal adviser-client relationship, in which the advice given was both independent and confidential. I am further satisfied that that the in-house lawyers were qualified and competent to provide legal advice, and that their employment consisted of the provision of legal advice to officers in operational or other areas of the Department.

The dominant purpose of the documents and waiver of the privilege

1. To be exempt under s 42 of the FOI Act, a document must constitute a communication for the dominant purpose of giving or receiving legal advice or use in actual or anticipated litigation. The High Court has confirmed that the common law requires a dominant purpose test rather than a sole purpose test. The communication may have been brought into existence for more than one purpose but will be privileged if the main purpose of its creation was for giving or receiving legal advice or for use in actual or anticipated litigation.[31]
2. In AWB Ltd v Cole [No 5],[32] Young J noted that 'in the ordinary case of a client consulting a lawyer about a legal problem in uncontroversial circumstances, proof of those facts alone will provide a sufficient basis for a conclusion that legitimate legal advice is being sought or given'.[33] Further, a broad approach is to be taken as to what is included in the scope of the privilege.[34]
3. As above, the Department submits the documents were prepared for the dominant purpose of giving or receiving legal advice. The applicant does not make specific submissions on the issue.
4. I have reviewed the material at issue, and considered its context, substance and nature. It is clear that the communications arose in the course of, and for the purpose of, obtaining or receiving 'professional advice as to what a party should prudently or sensibly do in the relevant legal context.'[35] I do not consider that the material can be characterised as internal communications that are a routine part of an agency's administrative functions. Accordingly, I am satisfied these documents were brought into existence for the dominant purpose of giving or receiving legal advice.
5. Also, there is no evidence before me to indicate that the material in the documents to which the Department contends s 42 applies has been disclosed or widely distributed. There is therefore nothing to suggest that privilege has, or may have, been waived. I am satisfied that privilege has not been waived.

Does an exception to legal professional privilege apply?

1. At common law, no privilege arises in respect of a communication made for a purpose that is contrary to the public interest. That is, where the communication is made in furtherance of an illegal or improper purpose, whether or not the legal adviser knows of that purpose.[36]
2. The relevant distinction is between a communication made for the purpose of being guided or helped in achieving an illegal or improper purpose, which is a non-privileged communication, as compared with a communication made for the purpose of seeking advice in relation to past conduct, which may be privileged.[37]
3. However, a communication in relation to past conduct will not be privileged if the communication is for the purpose of covering up a crime or fraud, or for the purpose of defeating or delaying recovery by the victims of a crime or fraud.[38] The illegal or improper purpose principle covers all forms of fraud and dishonesty, including fraudulent breach of trust, fraudulent conspiracy, trickery and 'sham' contrivances.[39]
4. The applicant contends that the Department failed to adequately address the exceptions to legal professional privilege, specifically that the privilege should not protect the communication where it evidences maladministration. The applicant cites the matter of Attorney-General (NT) v Kearney,[40] in which the High Court considered whether privilege attaches to communications made to further an abuse of statutory power that would prevent others from exercising their rights under the law. The High Court found the greater public interest was the better administration of justice and the need for the community to retain faith in the administration of justice. The applicant submits:
   • The overriding public interest factor in this matter is also the proper administration of justice within the ADF.
   • The proper administration of justice requires disclosure of legal advice given to those decision-makers in the Department who, against the weight of evidence and in contradiction of the position adopted by the ADF at three judicial inquiries, made the decision to take administrative action against certain ADF members.
5. In response, the Department disputes any assertion that the legal advice provided was subject to any form of maladministration and submits that the purpose of the FOI Act is not to assess whether maladministration occurred during an investigation. Rather, the purpose of the FOI review process is to assess whether the exemptions have been correctly applied to the documents at issue. Further, the Department submits there is nothing to suggest that an 'illegal or improper purpose' extends to maladministration.
6. As above, the illegal or improper purpose principle covers all forms of fraud and dishonesty. I am therefore inclined to consider that the principle is broad enough to extend to instances of maladministration. However, from my review of the unedited material at issue, I agree with the Department that the documents fail to evidence maladministration or an abuse of statutory power such that would enliven the exception to the operation of the privilege.
7. Further, in relation to the applicant's submissions regarding the overriding public interest, the FOI Guidelines note that a 'real harm' criterion is not an element of the common law doctrine of legal professional privilege. Likewise, the test is not a feature of the FOI Act. While government has historically, through convention, referenced the test as a relevant discretionary factor in determining FOI requests, [41] an agency's or minister's decision on the 'real harm' criterion is not an issue that can be addressed in an IC review for the reason that the Information Commissioner cannot decide that access is to be given to a document, so far as it contains exempt matter.[42]

1. For the reasons set out above, I am satisfied the material at issue attracts legal professional privilege and is exempt under s 42 of the FOI Act.

1. The Department maintains that the conditional exemption in s 47E(c) of the FOI Act applies to certain parts of the documents which discuss and consider management and assessment matters regarding personnel other than the applicant in relation to a serious workplace incident.
2. Subsection 47E(c) of the FOI Act provides that a document is exempt if its disclosure would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency.
3. For this conditional exemption to apply, the document must relate to either:
   • the management of personnel - including broader human resources policies and activities, recruitment, promotion, compensation, discipline, harassment and work health and safety, or
   • the assessment of personnel - including the broader performance management policies and activities concerning competency, in-house training requirements, appraisals and underperformance, counselling, feedback, assessment for bonus or eligibility for progression.[43]

1. The Department submits that the disclosure of information which discusses and considers management and assessment matters regarding personnel other than the applicant, could reasonably be expected to have a substantial and adverse effect on the management or assessment of personnel by Defence:
   • Disclosure of information in the documents would reveal sensitive material associated with the management of Defence personnel. If the details, suggestions and opinions of individuals other than the applicant were released, it would reasonably be expected to have a substantial adverse effect on future requests for information to manage personnel, as there would be a lack of willingness and cooperation of people to provide such information.
   • It is of fundamental importance to operational requirements that Defence is able to manage its personnel and take appropriate steps to ensure corrective actions are taken to efficiently manage the current and future safety of personnel in the workplace. Failure to do so would have a flow-on effect on fairly assessing and managing those personnel involved in allegations, and subsequent investigations. Any loss of trust or reluctance in employees providing honest feedback could reasonably be expected to have a substantial adverse effect on the overall management of personnel.
   • Disclosure could reasonably give rise to unacceptable work health and safety risks, including the potential exposure of these personnel to psychosocial hazards such as stress and other workplace stressors. This would impact the Department's ability to comply with its health and safety obligations under the Work Health and Safety Act 2011 (Cth), as it would expose these personnel to the risk of inappropriate unsolicited approaches, personal attacks and harassment.
2. The applicant does not make specific submissions in relation to s 47E(c) of the FOI Act.

1. Recent IC review and AAT decisions have canvassed the issue of whether disclosure of documents pertaining to a workplace investigation could reasonably be expected to affect the willingness of people to provide evidence for future workplace investigations which, in turn, would have a substantial adverse effect on the management or assessment of the agency's personnel.[44]
2. Similarly in this case, I accept the Department's contentions that the disclosure of the information in relation to individuals other than the applicant, would likely undermine faith in the Department's ability to manage sensitive matters and in turn, discourage ADF members from fully participating in investigations of a similar nature. I agree that outcome would have a substantial adverse effect on the Department's ability to manage and assess its staff and to effectively prevent the reoccurrence of serious work, health and safety issues.

1. I am satisfied that the material at issue is conditionally exempt under s 47E(c) of the FOI Act.

Whether access would be contrary to the public interest (s 11A(5))

1. As I have found the material at issue to be conditionally exempt under ss 47E(c), I must proceed to consider whether it would be contrary to the public interest to give the applicant access to those parts at this time (s 11A(5) of the FOI Act).
2. The requirements of the public interest test are set out at Annexure A. I have considered the relevant mandatory factors listed in s 11B(3) of the FOI Act. I have not considered the irrelevant factors as set out in s 11B(4) of the FOI Act. In considering the public interest, I have had regard to the parties' submissions.
3. I find that a number of factors favouring disclosure of the s 47E(c) material can be identified, including that disclosure would:
   • promote the objects of the FOI Act
   • inform debate on a matter of public importance
   • promote effective oversight of public expenditure, and
   • reveal the reason for a government decision and any background or contextual information that informed the decision.
4. The Department submits that the following factors against disclosure apply to a greater degree as release of the material at issue would:
   • breach the confidentiality of those involved in the investigation process
   • prejudice the protection of the rights to privacy of the affected third parties
   • cause a detriment to the flow of information in the future, as individuals may not provide candid information if they were aware that it could subsequently be released under FOI and there is an expectation that Defence manages personal information in a sensitive way, and
   • prejudice the management and personnel management functions of the Department.
5. The Department also submits that release of the material at issue would not help to promote better informed decision making by the Department, nor would it further increase scrutiny or discussion of its activities. This is because the Department's actions with respect to this matter have already been scrutinised[45] and the material at issue rather concerns the actions of individual personnel.
6. Having regard to the nature of the information before me and the parties' submissions, I have given significant weight to the factors favouring disclosure, particularly the public interest in the transparency and integrity of the ADF.
7. Nevertheless, I consider that the public interest in maintaining the privacy of third-party individuals involved in such workplace investigations to be a strong factor against disclosure. This is because disclosure of the information could reasonably be expected to harm the interests of those individuals.
8. Further, having regard to the nature of the material at issue, I accept that the relevant individuals would likely hold an expectation that the information would be treated in a confidential manner. Disclosure of the material at issue would undermine that expectation of confidentiality and would likely have an adverse effect on the willingness of other individuals to participate in future investigations.
9. When considering whether disclosure of a document would, on balance, be contrary to the public interest, it is important to contemplate the effects that disclosure would have, taking into account the nature and purpose of the relevant information. I have considered the context of the material at issue and I agree that the impact on the Department's ability to properly manage its staff, preserve reasonably held expectations of confidentiality and ultimately fulfil its functions to the community at large weighs heavily against disclosure of the material at issue.

1. Consistent with previous IC review decisions discussed above, I find that giving the applicant access to the conditionally exempt material at issue would, on balance, be contrary to the public interest. The documents are therefore exempt in part under s 47E(c) of the FOI Act.

Relevant provisions of the FOI Act, FOI Guidelines, and decisions

Section 11A(4) of the FOI Act states the agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.

(3) A document is not an exempt document under subsection (1) by reason only that:

(a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and

(b) the information is operational information of an agency.

Relevant parts of the FOI Guidelines and case law

As discussed in the FOI Guidelines and in IC review cases,[46] a document will be exempt under s 42 if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege (s 42(1)) and privilege has not been waived (s 42(2)).

Legal professional privilege protects confidential communications between a lawyer and a client from compulsory production. The FOI Guidelines relevantly explain that, at common law, determining whether a communication is privileged requires consideration of the following:

1. whether there is a legal adviser-client relationship
2. whether the communication was for the purpose of giving or receiving legal advice, or use in connection with actual or anticipated litigation
3. whether the advice given is independent, and
4. whether the advice given is confidential.[47]

The FOI Guidelines explain that a communication may have been brought into existence for more than one purpose but will be privileged if the main purpose of its creation was for giving or receiving legal advice (legal advice privilege), or for use in connection with actual or anticipated litigation (litigation privilege).[48]

In relation to whether a legal adviser client relationship exists, the FOI Guidelines relevantly explain:

A legal adviser-client relationship exists where a client retains the services of a lawyer for the purposes of obtaining professional advice. The existence of the relationship is usually straightforward to establish where advice is received from an independent external legal adviser.[49]

The FOI Guidelines further explain that the following factors are relevant to establishing whether a legal adviser-client relationship exists:

• the legal adviser must be acting in his/her capacity as a professional legal adviser
• the giving of the advice must be attended by the necessary degree of independence
• the dominant purpose test must be satisfied
• the advice must be confidential
• the fact that the advice arose out of a statutory duty does not preclude the privilege from applying
• whether the lawyer is subject to professional standards can be relevant.[50]

If the communications were confidential communications between a professional legal adviser and client for the dominant purpose of giving or receiving legal advice, they will attract the privilege.[51]

Certain operations of agencies exemption (s 47E(c))

Section 47E(c) of the FOI Act states a document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency.

the predicted effect needs to be reasonably expected to occur... There must be more than merely an assumption or allegation that damage may occur if the document is released.

...

An agency cannot merely assert that an effect will occur following disclosure. The particulars of the predicted effect should be identified during the decision-making process, including whether the effect could reasonably be expected to occur. Where the conditional exemption is relied on, the relevant particulars and reasons should form part of the decision maker's statement of reasons, if they can be included without disclosing exempt matter (s 26, see Part 3).[52]

For this conditional exemption to apply, the document must relate to either:

• the management of personnel - including broader human resources policies and activities, recruitment, promotion, compensation, discipline, harassment and work health and safety

• the assessment of personnel - including the broader performance management policies and activities concerning competency, in-house training requirements, appraisals and underperformance, counselling, feedback, assessment for bonus or eligibility for progression.[53]

Section 11A(5)of the FOI Act states the agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

Section 11B(3) of the FOI Act sets out a non-exhaustive list of public interest factors favouring disclosure for consideration, those factors being where disclosure of the document would do any of the following:

(c) promote effective oversight of public expenditure

(d) allow a person access to their personal information.

Section 11B(4) of the FOI Act also lists the following irrelevant factors that must not be taken into consideration when 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.

In addition to the factors set out at s 11B(3) of the FOI Act, the FOI Guidelines set out a further non-exhaustive list of public interest factors in favour of disclosure, as well as public interest factors against disclosure.[54]

To conclude that, on balance, disclosure of a document would be contrary to the public interest is to conclude that the benefit to the public resulting from disclosure is outweighed by the benefit to the public of withholding the information. The decision maker must analyse, in each case, where on balance the public interest lies based on the particular facts at the time the decision is made.[55]

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

[1] During the IC review, the Department withdrew its claims that certain material is exempt under ss 42 and 47E(c) of the FOI Act.

[2] The applicant does not seek review of the Department's exemption contentions under ss 38 and 47F of the FOI Act.

[3] Due to the effect of the passage of time, the Department no longer maintains the material on page 26 is exempt under s 42 of the FOI Act. The Department also no longer maintains that certain material on the following pages is exempt under s 47E(c) of the FOI Act: 1, 34-42, 78-86, 120, 126, 129, 135, 138, 140-141, 143-151, 165, 181-182, 187-189, 207, 240-248, 250-255.

[4] The Department submits that the material on pages 36 and 80 is exempt under s 42 of the FOI Act, rather than under s 47E(c) of the FOI Act. The Department also submits that the handwritten signatures, names and PMKeyS numbers on pages 34, 38-40, 78, 82-84 and 148 are exempt under s 47F of the FOI Act, rather than under s 47E(c) of the FOI Act.

[5] The applicant restricted their submissions throughout the IC review to the information the Department refused on the basis of s 42 of the FOI Act. However, in response to the OAIC's request for further information of 26 February 2025, the Department consulted with the applicant on the scope of the IC review. The applicant clarified they also sought IC review of the material the Department had refused on the basis of s 47E(c) of the FOI Act. The applicant has consistently indicated they did not seek review of the material the Department refused on the basis of ss 38 and 47F of the FOI Act.

[7] Ss 11A, 42 and 47E(c) as set out in Annexure A.

[8] See, Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

[11] Australian Government Solicitor (AGS) Legal Briefing No. 117, citing Esso Australia Resources Ltd v Commissioner for Taxation [1999] HCA 67; (1999) 201 CLR 49, 64-65 [35].

[12] FOI Guidelines at [5.148], citing Comcare v Foster [2006] FCA 6 [22]-[40]; [2006] FCA 6; (2006) 42 AAR 434.

[13] FOI Guidelines at [5.149], citing Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; Waterford v Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54; and Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49. For examples of the application of these considerations see 'VO' and Northern Australia Infrastructure Facility (Freedom of information) [2020] AICmr 47 [24]-[39]; 'VH' and Australian Taxation Office (Freedom of information) [2020] AICmr 43 [22]-[36]; and Clifford Chance Lawyers and National Competition Council (Freedom of information) [2020] AICmr 26 [49]-[76].

[14] FOI Guidelines at [5.148], noting that the Legal Services Directions 2005 issued by the Attorney-General require legal advices obtained by Australian Government agencies to be shared in particular circumstances, and complying with this requirement does not waive privilege.

[15] 'AQL' and Department of Climate Change, Energy, the Environment and Water (Freedom of information) [2024] AICmr 244 (19 November 2024).

[16] The former Administrative Appeals Tribunal, now the ART.

[17] See Ransley and Commissioner of Taxation (Freedom of information) [2015] AATA 728; 'AEE' and Department of Defence (Freedom of information) [2023] AICmr 69; 'ADM' and Services Australia (No. 7) (Freedom of information) [2023] AICmr 66 and 'ACV' and Tertiary Education Quality and Standards Agency (Freedom of information) [2023] AICmr 3 (1 February 2023).

[18] See Waterford. See also Ransley and Commissioner of Taxation (Freedom of information) [2015] AATA 728; 'AEE' and Department of Defence (Freedom of information) [2023] AICmr 69; 'ADM' and Services Australia (No. 7) (Freedom of information) [2023] AICmr 66; and 'ACV' and Tertiary Education Quality and Standards Authority (Freedom of information) [2023] AICmr 3.

[19] Rudd and Civil Aviation Safety Authority [2013] AICmr 56.

[20] Philip Morris Ltd and Prime Minister [2011] AATA 556.

[21] The Department cites the reasoning of Tamberlin DP in Ransley and Commissioner of Taxation (Freedom of information) [2015] AATA 728.

[22] The Department cites Commonwealth & Air Marshal McCormack in his capacity as Chief of Air Force v Vance [2005] ACTCA 35.

[23] Citing Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 [10], referring to Telstra Corporation Ltd v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1441 [35].

[25] The Department cites Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82 [23].

[26] The Department submits it does so by ensuring suitably qualified and experienced Defence legal practitioners provide legal services and supervise less experienced Defence legal practitioners providing legal services. Non-lawyers do not exercise legal technical control.

[27] The Department refers to s 122B of the Defence Act 1903 (Cth), Defence Instruction Administrative Policy (DI ADMINPOL), Directive 12/2019 of 13 August 2019, Chief Counsel Directive 3/2020 of 24 July 2020 and Chief Counsel Directive 03/2021 of 17 December 2021.

[28] S_even Network News v News Ltd_ (2005) FCA 1551. See also FOI Guidelines, [5.132].

[29] Archer Capital 4A Pty Ltd as trustee for Archer Capital Trust 4A v Sage Group plc (No 2) (2013) FCA 1098 [59]-[73].

[30] Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (2020) FCA 1232 [48]; Martin v Norton Rose Fulbright Australia (No 2) (2019) FCA 96, [187].

[31] Esso Australia Resources Ltd v Commissioner for Taxation [1999] HCA 67; (1999) 201 CLR 49.

[32] AWB v Cole No 5 [2006] FCA 1234; (2006) 155 FCR 30 (AWB).

[34] Ransley and Commissioner of Taxation (Freedom of Information) [2015] AATA 728 [14].

[35] Ransley and Commissioner of Taxation (Freedom of Information) [2015] AATA 728, [56].

[36] The general principles are discussed in detail in AWB v Cole (No. 5), [210]-[233].

[37] P & V Industries Pty Ltd v Porto [2007] VSC 113, [27].

[38] Refer AGS Legal Briefing No. 117 , citing Finers v Miro [1991] 1 WLR 35, 40; Derby & Co Ltd v Weldon [1990] 1 WLR 1156, 1174; Hodgson v Amcor Ltd; Amcor Ltd v Barnes (No 2) [2011] VSC 204, [68].

[39] Refer AGS Legal Briefing No. 117 , citing Baker v Campbell (1983) 153 CLR 52, 409-10; R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141, 147, 156, 159, 161; Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500, 514-5.

[40] [1985] HCA 60; (1985) 158 CLR 500.

[41] FOI Guidelines at [5.177], noting that this view is in line with the advisory notice issued by the then Secretary of the Attorney-General's Department dated 2 March 1986 (the 'Brazil Direction'), following a Cabinet decision in June 1985. The phrase 'real harm' distinguishes between substantial prejudice to the agency's affairs and mere irritation, embarrassment or inconvenience to the agency.

[42] FOI Guidelines at [5.178], noting s 55L(2) of the FOI Act. The FOI Guidelines also note at [5.179] the IC review decision of 'ACV' and Tertiary Education Quality and Standards Agency (Freedom of information) [2023] AICmr 3 [89]-[90], in which the FOI Commissioner observed that agencies are not legally bound to refuse access to documents if they are exempt under the FOI Act (see s 3A).

[43] FOI Guidelines at [6.103] (footnote omitted).

[44] See, for example, 'AKM' and Department of Defence (Freedom of information) [2024] AICmr 107 (27 May 2024), Paul Farrell and the Australian Federal Police (No.2) (Freedom of information) [2024] AICmr 71 at [12] and 'AIT' and Department of Defence (Freedom of information) [2024] AICmr 65 at [17], referencing Carver and Fair Work Ombudsman [2011] AICmr 5 at [22].

[45] The Department refers to Comcare v Commonwealth of Australia (Department of Defence) [2021] NTLC 023.

[46] Generally, see FOI Guidelines at [5.126] - [5.154]; 'VO' and Northern Australia Infrastructure Facility (Freedom of information) [2020] AICmr 47; 'VH' and Australian Taxation Office (Freedom of information) [2020] AICmr 43; 'PQ' and Australian Taxation Office (Freedom of information) [2019] AICmr 1; 'PO' and Australian Federal Police (Freedom of information) [2018] AICmr 72; C_hris Lewis and Australian National University (Freedom of information_) [2018] AICmr 63; Rex Bashford and Department of Jobs and Small Business (Freedom of information) [2018] AICmr 55 and 'OL' and Department of Home Affairs (Freedom of information) [2018] AICmr 36.

[50] FOI Guidelines [5.131], footnotes omitted.

[51] AWB v Cole (No. 5) [2006] FCA 1234; (2006) 155 FCR 30 at 44; Waterford v Commonwealth [1987] HCA 25; (1986) 163 CLR 54 at 95.

[53] FOI Guidelines at [6.103] (footnote omitted).

[54] FOI Guidelines at [6.229] - [6.233].

[55] FOI Guidelines at [6.238] (footnote omitted).