Your ref: MR23/01376
Our ref: FOI23/463-IC
28 February 2025
Ms Claire Lynch
Office of the Australian Information Commissioner
By email:
xxxxx@xxxx.xxx.xx
Dear Ms Lynch
Information Commissioner review – MR23/01376 - Submissions
The purpose of this letter is to provide the Information Commissioner with the Attorney-
General’s Department’s (
the department) submissions in response to Information
Commissioner (IC) review MR23/01376. Thank you for granting the department an extension to
the 28 February to provide these submissions.
On 27 March 2024 and 18 April 2024, the department made a revised decision under
section 55G of the
Freedom of Information Act 1982 (the FOI Act) in response to Mr Waldek
Lupinski’s (
the applicant) access request.
On 15 May 2024, the Office of the Information Commissioner (OAIC) informed the department
that the applicant wished to proceed with his IC review application and sought submissions
from the department. This correspondence provides the Information Commissioner with the
requested submissions. It also makes submissions in response to other concerns raised by the
applicant regarding the processing of his request.
The department provides at
Attachment A a schedule listing documents that are relevant to
this access request together with a summary of the initial access decision and the exemptions
claimed by the department in these submissions.
Attachment B contains a summary of the
processing of the Freedom of Information (FOI) request and
Attachment C contains information
about the
Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 matter (the
Stradford proceedings) and the department's role in relation to this matter.
Information Commissioner review
On 14 November 2023, the applicant lodged an IC review application of a deemed decision by
the department. On 27 November 2023, the OAIC issued a
Notice of IC review application and a
Direction to produce documents.
On 18 April 2024, the department made a substantive decision under s 55G of the FOI Act.
link to page 2
On 3 May 2024, the applicant confirmed with the OAIC that he wished to proceed with his IC
review application and outlined his submissions under the headings ‘A’ to ‘J’.
A copy of the applicant’s concerns and the department's response are set out in further detail
under the heading titled
Submissions - Applicant's concerns below.
Engagement with the applicant to resolve or refine matters in
scope of IC review
On 4 November 2024, the department wrote to the applicant and invited him to take part in a
telephone or video conference to attempt to resolve or narrow the issues in dispute. The
department noted that this engagement process is in line with the OAIC’s
Direction as to certain
procedures to be fol owed by agencies and ministers in Information Commissioner reviews.
The department informed the applicant that this engagement could assist to clarify information
about the section 55G decision and address the concerns the applicant had raised in his IC
review application.
On 5 November 2024, the applicant responded to the department to decline the invitation to
speak over telephone or by video conference, stating that he wished to communicate only via
his Right to Know (RTK) email address.
1
On 12 November 2024, the department wrote to the applicant to acknowledge his preference
to engage via his RTK email address. In an attempt to narrow some of the issues in dispute, the
department provided further information to address the concerns the applicant had raised
under parts A and C of his IC review submissions.
On 14 November 2024, the applicant responded to the department’s correspondence and
stated that:
•
the ‘primary issue’ grounding his IC review application was that – to justify the
department’s delay – the department initial y told him that 176 documents, total ing
more than 3500 pages, had been identified with the scope of his request
•
the ‘major ancil ary issue’ is that he did not believe the department’s officials were
trustworthy and had failed to adhere to their statutory obligations
•
publicly available documents should not have been included in the documents for his
request, because the department should have been aware (from his previous
correspondence) that he had already accessed this material, and
1 The applicant has used a number of different RTK email addresses in relation to his
correspondence regarding request FOI23/463. As a consequence, correspondence relating to
this request appears across several RTK request pages.
Attorney-General's Department IC Submissions FOI23/463-IC
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•
documents of the Federal Court of Australia (Federal Court) are exempt from the FOI
Act under paragraph 12(1)(b) and should not have been identified as documents for
his request.
The applicant also reiterated his concerns about:
•
receiving incorrect advice about the Commonwealth’s involvement in the false
imprisonment of Mr Stradford in the
Stradford proceedings, and
•
the transfer of his request by the Attorney-General’s Office to the department.
The department’s submissions in response to the applicant's concerns are addressed under the
heading titled
Submissions – Applicant's concerns below and in
Attachment B.
Department’s submissions
The department provides a response to the applicant's submissions for IC review below. In
doing so, the department has responded to the applicant’s submissions by using the same titles
as provided by the applicant in his correspondence of 3 May 2024 - Parts A – J. These
submissions also respond to concerns raised by the applicant during the engagement process.
The department provides submissions below to maintain its decision under s 55G to refuse
access to documents 1, 5 and 7-27. While the access decision for each of the documents in
scope of the request remains unchanged, the department has made some minor amendments
to the exemptions claimed. As noted above,
Attachment A sets out the documents, the initial
access decision and the exemptions claimed by the department in these submissions.
Submissions – Applicant's concerns
The department is of the view that its engagement with the applicant from 4 to 14 November
2024 did not effectively resolve or narrow the issues in dispute. As a result, the department has:
• responded to each of the applicant’s concerns below using the headings A to J, which
correspond with the headings used by the applicant to organise his submissions of
3 May 2024, and
• provided submissions under an additional heading
Transfer of request from Attorney-
General’s Office to address the additional concern the applicant raised in his
correspondence of 14 November 2024, which is not captured under categories A to J.
Part A – Publicly available documents
In part A of his submissions, the applicant stated that he objects to the inclusion of documents
2, 3, 4 and 6 in response to his request. These documents are, respectively:
•
the Federal Court’s summary of the judgment in
Stradford (a pseudonym) v Judge
Vasta [2023] FCA 1020
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•
the Federal Court’s reasons for judgment in
Stradford (a pseudonym) v Judge Vasta
[2023] FCA 1020
•
an order made by the Federal Court on 31 October 2023, and
•
a version of the Federal Court’s reasons for judgment in
Stradford (a pseudonym) v
Judge Vasta [2023] FCA 1020 as published on Austli .
The applicant states that:
Not one of the documents is a document for the purposes of the FOI Act because all of those
documents are materials maintained for reference purposes that are otherwise publicly
available (be it on the websites of the Federal Court, on the Commonwealth Law Courts
portal, on Austli etc).
On 12 November 2024 the department attempted to resolve this issue in correspondence sent
to the applicant.
On 14 November 2024 the applicant stated in his response to this correspondence that the
department should have excluded these documents, as the department should have been
aware from his previous correspondence that he already had access to some of these
documents.
The department submits that the decision to include documents 2, 3, 4 and 6 in the request was
correct as explained below.
As outlined in the Freedom of Information Commissioner’s decision in
Mil s and Department of
Immigration and Border Protection [2014] AlCmr54 at paragraph [20], and reiterated in the
Freedom of Information Guidelines (FOI Guidelines) at paragraph 2.41, apart from the limited
circumstances provided for in subsection 12(1), there is no provision in the FOI Act to refuse
access to a document solely on the ground that it is publicly available.
The department is of the view that it was appropriate to release these documents to the
applicant, as they fel within the scope of the request. Further, the applicant did not state in his
initial request or subsequent correspondence that he was not seeking publicly available
documents. As a result, the department maintains it correctly included the documents in its
response to his request.
Part B – Inclusion of document 4
In part B of his submissions, the applicant stated that he objects to the inclusion of document 4
because the document was created after the lodgement date of his request.
Document 4 is an order made by the Federal Court in the
Stradford proceedings on 31 October
2023 regarding the respondents’ payment of damages to the applicant. The department
released this document in ful to the applicant.
The department acknowledges that this document was created after the date the FOI request
was received by the department.
Part C – Documents of the Federal Court
In part C of his submissions, the applicant stated that he objects to the department including
the Federal Court Notices of Filing (documents 16, 18 and 19) within the identified documents
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for his request. He stated that these documents are exempt from the FOI Act under paragraph
12(1)(b).
On 12 November 2024, the department attempted to resolve this issue in correspondence sent
to the applicant.
On 14 November 2024, the applicant responded to the department and maintained his view
that documents of the Federal Court were exempt from the FOI Act under paragraph 12(1)(b)
and should not have been included as documents for his request.
The department submits that it was correct to include documents 16, 18 and 19 in the response
to the request as explained below.
Paragraph 12(1)(b) of the FOI Act states that:
Part not to apply to certain documents
(1) A person is not entitled to obtain access under this Part to:
…
(b) a document that is open to public access, as part of a public register or
otherwise, in accordance with an enactment or a Norfolk Island law, where that
access is subject to a fee or other charge; or
…
For documents to be exempt from the FOI Act under paragraph 12(1)(b), al three of the
following criteria must be met:
• the documents must be open to public access
• the documents must be part of a public register or otherwise, and
• the documents must be able to be applied for, subject to a fee.
Documents 16, 18 and 19 are documents of the Federal Court. The department is satisfied that
the Federal Court meets the definition of ‘public register or otherwise’ as outlined in paragraph
12(1)(b) of the FOI Act.
The department is also satisfied that individuals are able to make an application to the Federal
Court to request access to the documents after paying the relevant fee. However, the
department is not satisfied that the documents are ‘open to public access’. This is because they
are not documents that a person (who is not a party to the proceeding) is entitled access to
under rule 2.32 of the
Federal Court Rules 2011 (the Rules). Providing access to the documents,
which refer to Mr Stradford’s real name, would be in breach of an order made by the Federal
Court on 30 August 2023 that the applicant be given the pseudonym ‘Mr Stradford’.
Documents 16, 18 and 19 are subject to non-publication and suppression orders and therefore
fal within the category of documents that are prohibited or restricted from publication under
Part VAA of the
Federal Court of Australia Act 1976.
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The department remains of the view that these documents do not fall within the scope of
paragraph 12(1)(b) as the documents are not ‘open to public access’. These documents are not
‘open to public access’ because the applicant is not entitled to inspect them and would have to,
pursuant to sub-rule 2.32(4) of the Rules, request the Federal Court’s leave to inspect the
documents. As such, the department considers that documents 16, 18 and 19 are within the
scope of the FOI Act, noting that they are subject to exemptions from disclosure to the
applicant as set out in
Attachment A.
Part D – Section 22 - irrelevant matter deleted
In part D of his submissions, the applicant objected to the application of section 22 of the
FOI Act and indicated that he had not received an explanation as to why section 22 had been
applied to the documents for his request.
On 18 April 2024, the department provided reasons for the application of section 22 in
Attachment C of its section 55G revised decision letter.
The department submits the application of section 22 was appropriate and provides further
explanation below.
The department holds a large number of documents relating to, or associated with, the
Stradford proceedings due to its roles and responsibilities as outlined at
Attachment C. However, the majority of the documents, and parts of documents processed for the request, do
not relate to:
• the Commonwealth’s role as one of the named respondents in the proceedings
• the Commonwealth’s role, as one of the named respondents in the proceedings, for
allegedly falsely imprisoning Mr Stradford, or
• the Commonwealth’s costs, as one of the named respondents in the proceedings, in
defending the proceedings.
Deleting irrelevant information from a document that is to be released can have benefits for
both agencies and applicants. An agency may not have to consider whether the deleted
information is otherwise exempt or if a third party should be consulted, and can more quickly
reach a decision to provide access to the non-exempt information (FOI Guidelines, paragraph
3.96). When processing documents for the request, the department removed material outside
the scope of the request in accordance with section 22. The decision on access was then made
on the remaining relevant material. Where section 22 is listed in the schedule, this indicates the
document (or part of a document) contained irrelevant material.
The department notes that in its section 55G decision, it claimed section 22 over the personal
information of its officers and of other agencies. This included the contact details of all
departmental officers and other Commonwealth public servants and the names of junior
departmental officers. The department now considers this information is exempt under section
47F (personal privacy). Information about the reasons for not disclosing this material is outlined
below under the heading
Submission –
Exemptions.
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Parts E to G – Application of sections 42, 46, 47C, 47E and 47F
In parts E to G of his submissions, the applicant stated that he objects to the application of
sections 42, 46, 47C, 47E and 47F to the documents for his request. The department maintains
that these exemptions have been appropriately applied to the documents identified as within
scope of the request and outlines the reasons for this below under the heading
Submission –
Exemptions.
Part H – Application of section 7
In part H of his submissions, the applicant objected to the application of section 7 to a number
of the documents for his request. Subsection 7(2) of the FOI Act provides that certain persons,
bodies and departments are exempt from the operation of the FOI Act, in relation to particular
types of documents. The relevant agencies and documents that are exempt are set out in
Schedule 2, Part II of the FOI Act. Relevantly, Schedule 2, Part II, Division 1, paragraph (b)
prescribes that certain documents in respect of activities undertaken by the Australian
Government Solicitor (AGS) are exempt from the operation of the FOI Act under section 7.
Accordingly, in the section 55G decision certain documents that relate to activities undertaken
by the AGS were refused in ful – or where that material is within a document – in part.
AGS represented the second respondent, the Commonwealth, in the
Stradford proceedings.
The department confirms that particular parts of the documents identified as being within
scope of this FOI request contain information in respect of the activities of AGS.
The department is of the view that the information relating to the activities of AGS is exempt
from disclosure under subsection 7(2) of the FOI Act. Following consultation with AGS in the
course of preparing these submissions, the department reconsidered the application of s7 to
parts of some documents. However, the relevant documents were otherwise exempt under
other exemptions.
Part I – Incorrect information
In part I of his submissions, and reiterated in the applicant’s correspondence of
14 November 2024, the applicant raised concerns about receiving incorrect information from
the department. The department regrets that the applicant was initial y provided incorrect
information about the Commonwealth’s involvement in the
Stradford proceedings and the date
on which his FOI request was considered validly received.
On 8 December 2023, in correspondence sent to the applicant, the department corrected the
date of receipt of the FOI request and advised that it considered his request to have been
validly made on 30 August 2023 and not 4 September 2023 as previously advised. On the same
day, the department apologised to the applicant for the delay in processing this request.
In the decision letter AGOFOI23/465 sent to the applicant on the 19 September 2024,
information was provided to the applicant about the Commonwealth’s involvement in the
Stradford proceedings. Further information is provided at
Attachment C.
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Part J – Identification of number of documents for request
In part J of his submissions, and reiterated in the applicant’s correspondence of
14 November 2024, the applicant took issue with the department advising him that 27
documents have been identified as being within the scope of his request, when he was
previously advised that 176 documents were captured within the terms of his request.
Between 31 August 2023 and 7 September 2023, the department engaged with the applicant to
clarify its understanding of the scope of the documents requested by the applicant. The result
of this engagement did not revise the scope of the request and no further substantive
information was received from the applicant to clarify his request.
The next engagement with the applicant occurred in December 2023.
Attachment B contains a
more detailed summary of the initial processing of the request.
On 21 December 2023, the department wrote to the applicant to advise him that its initial
searches had identified 176 documents as being captured by the terms of his request. The
department’s initial searches were undertaken using search parameters based on the text in the
applicant’s request. It is not unusual for initial search results to capture material and documents
that are out of scope or irrelevant to the scope of the request particularly when the scope of
request is broad.
The department holds a large volume of material relating to the
Stradford proceedings
generally because of the department's roles and policy responsibilities. Please see
Attachment C for more detail on those roles and responsibilities.
After identifying that 176 documents had been initial y captured by these searches, the
department reasonably formed the view that practical refusal grounds may exist based on the
large volume of material identified. When the department wrote to the applicant on
21 December 2023, it advised that it wished to engage in an informal consultation with him
before undertaking any formal request consultation process under section 24AB of the FOI Act.
The correspondence also requested that the applicant engage with the department so the
department could better understand the documents that were of interest to him.
The department notes that paragraph 3.128 of the FOI Guidelines states:
Before commencing a formal request consultation process, agencies and ministers’ offices
are encouraged to discuss the request with the applicant. This is often a more efficient way
of obtaining further information from the applicant and helping them to refine a request
that is too large or vague. However, if the applicant cannot be contacted promptly, or the
discussion does not elicit information that allows relevant documents to be identified, the
request consultation process should be commenced.
When the department undertook a more detailed assessment of the material that had been
initially identified, the department identified that a significant number of the documents were
outside the scope of the applicant’s request. This is because these documents did not relate to
the specific matters referred to in the request. The department therefore determined that a
formal request consultation under section 24AB was no longer required.
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The department is of the view that it was reasonable to seek to informal y engage with the
applicant as set out in the correspondence dated 21 December 2023, noting the department’s
initial searches had captured a large volume of material. The department considers that
constructive informal engagement can assist with the efficient processing of requests and is
consistent with the OAIC’s guidance.
The department notes that paragraph 3.72 of the FOI Guidelines states that:
Various provisions of the FOI Act require contact with an applicant. However, agencies and
ministers’ offices are encouraged, as a matter of good administrative practice, to contact
an applicant to discuss their request as soon as practicable after receiving the request. This
contact provides an early opportunity to assist the applicant to address any formal
requirements that have not been met (see [3.47] of the FOI Guidelines). Early consultation
can also lead to greater efficiency in the process. The agency or minister can discuss with
the applicant the scope of their request, particularly if a preliminary assessment indicates
there may be a practical refusal reason or estimated charges may be high (see paragraphs
[3.108]–[3.135] and Part 4 of the FOI Guidelines). In many cases, an applicant may not be
aware of the nature and volume of the agency’s records, and, as a result, their request
might be expressed in wider terms than is necessary.
As noted above, in the context of this request, the department’s document holdings in relation
to the
Stradford proceedings were large and complex. The initial search results identified a large
number of documents and it was on this basis that the department sought to engage with the
applicant. Departmental staff undertook a comprehensive review of the documents produced
by the initial search results which then al owed the department to refine the scope of material
that fell within the scope of the request for the purposes of processing the request.
The department acknowledges that the request was not processed within the statutory
timeframe. The department continues to review its processes and procedures with a view to
improving management of requests and where possible reducing the incidence of overdue
requests.
Transfer of request from Attorney-General’s Office to the
department
In his correspondence of 14 November 2024, the applicant raised concerns about the transfer
of his request (AGOFOI23/465) from the Attorney-General’s Office (the Office) to the
department. On transfer of this request to the department it was al ocated a new reference
number, FOI23/500.
On 11 November 2023 the applicant applied for IC review of the deemed decisions of the
department in FOI23/463 and FOI23/500.
On 22 August 2024 the OAIC determined that the request AGOFOI23/465 was not validly
transferred to the department under section 16 of the FOI Act, as searches had not been
undertaken prior to the transfer of the request. Fol owing the OAIC’s decision, on 19 September
2024, the Office finalised FOI request AGOFOI23/465. On 28 October 2024 the OAIC advised the
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link to page 10
department that the IC review for AGOFOI23/465 (MR23/01375) had been withdrawn by the
applicant and the matter was finalised under section 54R of the FOI Act.
The department provides FOI support to the Office under an administrative arrangement and
has reviewed and adjusted processes in relation to the transfer of FOI requests from the Office
to the department to reflect the OAIC’s decision in this matter.
Submissions – Exemptions
Part IV Division 2
An agency or minister is not required to give access to a document or part of a document that is
exempt from disclosure under Division 2 of Part IV of the FOI Act. Exempt documents under
Division 2 of Part IV include documents which would be contempt of court (subsection 46(a)),
and documents subject to legal professional privilege (section 42).
These exemptions are not subject to an overriding public interest test. Accordingly, where a
document meets the criteria to establish a particular exemption, it is exempt and the decision-
maker is not required to weigh competing public interests to determine if the document should
be released.
Section 42 – Documents subject to Legal Professional Privilege
Subsection 42(1) of the FOI Act provides that:
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.
At common law
2 determining whether a communication is privileged requires a consideration
of the following four factors:
•
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.
The department is satisfied that where section 42 has been claimed in the documents for this
request, there was a legal adviser-client relationship, the communication was for the dominant
purpose of giving legal advice and the advice was confidential and independent.
2
Grant v Downs [1976] HCA 63
Waterford v Commonwealth of Australia [1987] HCA 25 and
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67.
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In the then Administrative Appeal Tribunal’s (AAT) decision of
Ransley and Commissioner of
Taxation (Freedom of information) [2015] AATA 728, the AAT confirmed that legal professional
privilege also extends to in-house lawyers.
Paragraph 5.156 of the Guidelines states:
In the AAT case of Ransley and Commissioner of Taxation (Freedom of information)
…
Tamberlin DP … discussed that ‘communications and information between an agency and
its qualified legal advisers for the purpose of giving or receiving advice will be privileged
whether the legal advisers are salaried officers [or not], provided they are consulted in a
professional capacity in relation to a professional matter and the communications arise
from the relationship of lawyer-client.
Paragraph 5.168 of the FOI Guidelines states:
Section 42(2) confirms that a document is not exempt if the person entitled to claim legal
professional privilege waives the privilege.
Paragraph 5.170 of the FOI Guidelines states that:
Waiver of privilege may be express or implied. For example, privilege may be waived in
circumstances where:
•
the communication in question has been widely distributed,
•
the content of the legal advice in question has been disclosed or
•
a person has publicly announced their reliance on the legal advice in question in a
manner that discloses the substance of the legal advice.
The department is satisfied that legal professional privilege has not been, and should not be
waived, in relation to the material in scope of this request. Accordingly, the department is
satisfied that the material marked section 42 in the schedule for this request at
Attachment A is
exempt from disclosure under subsection 42(1) of the FOI Act.
Section 46 – Documents disclosure of which would be contempt
of Parliament or contempt of court
Section 46 of the FOI Act provides that a document is exempt if public disclosure of the
document would, apart from the FOI Act and any immunity of the Crown:
(a) be in contempt of court
(b) be contrary to an order made or direction given by a Royal Commission or by a tribunal
or other person or body having power to take evidence on oath, or
(c) infringe the privileges of the Parliament of the Commonwealth or of a State or of a
House of such a Parliament or of the Legislative Assembly of the Northern Territory.
In the department’s section 55G decision, it applied subsection 46(b) to material subject to this
request. However, in these submissions, the department submits the material previously
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exempt under subsection 46(b) is exempt under subsection 46(a), as the real name of
‘Mr Stradford’ is protected by orders made by the Federal Court on 30 August 2023. If this
information is released, the department is at risk of being held in contempt of court for
releasing information that the Federal Court has ordered be prohibited or restricted from
publication.
Paragraph 5.215 of the Guidelines states:
A contempt of court is an action which interferes with the due administration of justice. It
includes, but is not limited to, a deliberate breach of a court order.
In addition, paragraph 5.216 of the Guidelines states:
Documents protected under [section] 46(a) include documents that are protected by the courts
as part of their power to regulate their own proceedings. For example, a court may prohibit or
limit publication of the names of parties or witnesses in litigation, or statements and evidence
presented to the court. Because public disclosure of such documents would be a contempt of
court, the documents wil be exempt.
The department is satisfied that there are real and substantive grounds for expecting that
disclosure of the relevant material would amount to contempt of court (subsection 46(a)).
Further, the department has consulted with the Federal Court who has objected to the
disclosure of this material.
Part IV Division 3 – Public interest conditional exemptions
The bases for the conditional exemption claims made are explained below.
A document which is conditional y exempt must stil be disclosed unless disclosure at that time
would, on balance, be contrary to the public interest: subsection 11A(5) of the FOI Act.
Subsection 11B(3) of the FOI Act lists factors favouring access to a document in the public
interest, where disclosure would do any of the fol owing:
(a) promote the objects of the FOI Act
(b) inform debate on a matter of public importance
(c) promote effective oversight of public expenditure, and
(d) al ow a person to access his or her own personal information.
Under subsection 11B(4) of the FOI Act, certain public interest factors against disclosure are
identified as irrelevant and must not be taken into account:
(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
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link to page 13
(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, and
(d) access to the document could result in confusion or unnecessary debate.
Section 47C – Deliberative processes
Subsection 47C(1) of the FOI Act conditional y exempts a document to the extent that it
contains ‘deliberative matter’.
‘Deliberative matter’ is described in s 47C as matter:
… in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or
recorded, or consultation or deliberation that has taken place, in the course of, or for the
purposes of, the deliberative processes involved, relevantly, in the functions of an agency...
The FOI Guidelines state at paragraph 6.54:
A deliberative process involves the exercise of judgement in developing and making a
selection from different options: The action of deliberating, in common understanding,
involves the weighing up or evaluation of the competing arguments or considerations that
may have a bearing upon one's course of action. In short, the deliberative processes
involved in the functions of an agency are its thinking processes – the processes of
reflection, for example, upon the wisdom and expediency of a proposal, a particular
decision or a course of action.3
DP Forgie considered the meaning of ‘deliberation’ in the context of the predecessor to section
47C (paragraph 36(1)(a) of an earlier iteration of the FOI Act) in
Smith and Aboriginal and Torres
Strait Islander Commission [2000] AATA 512
, observing at paragraph [54]:
… the word ‘deliberation’ encompasses the notion of consideration. That consideration may
involve consultation or discussion amongst more than one persons. Equally, a person who
considers a matter on his or her own can be said to have deliberated upon it. Whether or
not the deliberation leads in either case to the formation of an opinion, advice or
recommendation is another matter.
While the department is not responsible for the conduct of the
Stradford proceedings, the
department maintains a significant policy interest in the issues the proceedings raise. The
material identified as subject to section 47C in this request contain deliberations and advice to
the Attorney-General regarding appropriate policy responses to the issues raised in the
proceedings.
Exceptions do not apply
Deliberative matter wil not be conditional y exempt under s 47C if it includes matters, or is in
the form specified, in subsections 47C(2) and 47C(3).
3
Re JE Waterford and Department of Treasury (No 2) [1984] AATA 67 [58].
Attorney-General's Department IC Submissions FOI23/463-IC
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Relevant material in documents for this request that has been withheld under section 47C do
not contain operational material (as defined in section 8A of the FOI Act) or purely factual
material. These documents are not reports of the kind referenced in subsection 47C(3), nor a
record of a final decision given in the exercise of a power or an adjudicative function.
Accordingly, the department submits that the relevant material is conditional y exempt under
subsection 47C(1) of the FOI Act.
The public interest test
Having found the relevant material to be conditional y exempt under section 47C, the
department has considered the public interest factors weighing in favour of, and against,
disclosure.
In the case of these documents, the factors in favour of disclosure include:
• informing the community of the Government’s operations, deliberations and activities
• revealing the reasons or considerations for significant government decisions, and
• enhancing the scrutiny of government decision making.
By comparison, the public interest factors weighing against disclosure include:
• prejudicing the department’s ability to provide frank and confidential advice to
government
• prejudicing the department’s ability to maintain trust with its critical stakeholders,
including courts and other government departments and agencies by revealing
material that was provided in confidence, and
• prejudicing the department’s ability to obtain similar information in the future.
Disclosure of the deliberative material associated with the
Stradford proceedings is reasonably
likely to undermine the department’s ability to:
• engage in frank and open discussions internal y and with external stakeholders about
the development of responses to emerging issues, particularly where those issues are
sensitive or are of great policy significance, or
• provide advice to government about such issues.
Disclosure of the deliberative material is also reasonably likely to adversely impact the
deliberative process itself and the ability of the department to respond to policy issues in
circumstances where the deliberative process is stil underway. Although the High Court of
Australia (High Court) delivered its judgment in the
Stradford proceedings on 12 February 2025,
the department is continuing to consider the implications of that judgment.
On balance, the department considers the factors against disclosure outweigh the factors
favouring access and that providing access to the conditional y exempt material identified for
this request would be contrary to the public interest.
Attorney-General's Department IC Submissions FOI23/463-IC
Page 14 of 32
Section 47E – Certain operations of agencies
Subsection 47E(d) of the FOI Act conditional y exempts a document to the extent that its
disclosure would, or could reasonably be, expected to have a substantial adverse effect on the
proper and efficient conduct of the operations of an agency.
Paragraphs 6.15 – 6.16 of the FOI Guidelines states that
the predicted effect must be
reasonably expected to occur. There must be more than merely an assumption or al egation
that damage may occur if the document were to be released.
The Federal Court considered the meaning of ‘would or could reasonably be expected to’ in the
context of a predecessor business affairs exemption (subsection 43(1) of an earlier iteration of
the FOI Act) in
Attorney-General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft
[1986] FCA 35
:
… the words ‘could reasonably be expected to…’ were intended to receive their ordinary
meaning. That is to say, they require a judgment to be made by the decision-maker as to
whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to
expect that those who would otherwise supply information of the prescribed kind to the
Commonwealth or any agency would decline to do so if the document in question were disclosed
under the Act… it is undesirable to consider the operation of the provision in terms of
probabilities or possibilities or the like. To construe [sub-paragraph] 43(1)(c)(i ) as depending in
its application upon the occurrence of certain events in terms of any specific degree of likelihood
or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of
the Act. It is preferable to confine the inquiry to whether the expectation claimed was
reasonably based (see Kioa v West [1985] HCA 81; (1985) 60 ALJR 113 per Mason J and Gibbs
CJ).
. . stringent though that test may be, it does not go so far as to require the decision-maker to be
satisfied upon a balance of probabilities that the production of the document wil in fact
prejudice the future supply of information.
Substantial adverse effect to the proper and efficient conduct of the operations of an agency
The FOI Guidelines explain at paragraph 6.18 that the predicted effect needs to be both
‘substantial’ and ‘adverse’. The FOI Guidelines further explain:
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’.
DP Hall explains in
Re James and Australian National University [1984] AATA 501
at [340] that
the expression ‘conduct of the operations of an agency’ extends ‘to the way in which an agency
discharges or performs any of its functions’.
Accordingly, the department submits that the relevant material is conditional y exempt under
subsection 47E(d) of the FOI Act.
Attorney-General's Department IC Submissions FOI23/463-IC
Page 15 of 32
The public interest test
Having found the relevant material to be conditional y exempt under subsection 47E(d), the
department has considered the public interest factors weighing in favour of, and against,
disclosure.
In the case of these documents, the factors in favour of disclosure include:
• informing the community of the Government’s operations, deliberations and activities
• revealing the reasons or considerations for significant government decisions, and
• enhancing the scrutiny of government decision making.
By comparison, the public interest factors weighing against disclosure include:
• prejudicing the department’s ability to obtain confidential information, and
• prejudicing the department’s ability to obtain similar information in the future, and
negatively impacting on the department’s relationship with internal and external
stakeholders.
Disclosure of this material could reasonably be expected to prejudice the department’s ability
to:
• effectively and efficiently develop strategy on, and policy responses to, current and
emerging issues
• provide, or obtain, information communicated in confidence and information that
continues not to be in the public domain
• engage in frank and open discussions internal y and with external stakeholders in the
course of developing strategy on, and policy responses to, current and emerging
issues.
Although the High Court has delivered its judgment in the
Stradford proceedings, the
department is continuing to consider the implications of that judgment.
On balance, the department considers the factors against disclosure outweigh the factors
favouring access and that providing access to the conditional y exempt material identified for
this request would be contrary to the public interest.
Section 47F – Personal privacy
Subsection 47F(1) of the FOI Act conditional y exempts a document to the extent that its
disclosure would involve the unreasonable disclosure of personal information about any person
(other than the applicant). Personal information includes information or an opinion about an
identified or reasonably identifiable individual, whether true or not, and regardless of whether
it is recorded in material form.
Attorney-General's Department IC Submissions FOI23/463-IC
Page 16 of 32
Unreasonable disclosure
In considering whether disclosure of this personal information is unreasonable, subsection
47F(2) of the FOI Act requires consideration of:
(a) the extent to which the information is well known
(b) whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the document
(c) the availability of the information from publicly accessible sources, and
(d) any other matter the department considers relevant.
The department has had regard to the mandatory considerations in subsection 47F(2),
alongside the relevant factors identified in
‘FG’ and National Archives of Australia [2015] AICmr
26 at paragraphs [47]-[48], which have been included in the FOI Guidelines (at [6.138]). The
following matters are relevant to the conditional y exempt material:
•
the nature, age and current relevance of the information
•
any detriment that disclosure may cause to the person to whom the information relates
•
any opposition to disclosure expressed or likely to be held by that person
•
the circumstances of an agency’s collection and use of the information
•
the fact that the FOI Act does not control or restrict any subsequent use or dissemination
of information released under the FOI Act
•
any submission an FOI applicant chooses to make in support of their application as to their
reasons for seeking access and their intended or likely use or dissemination of the
information, and
•
whether disclosure of the information might advance the public interest in government
transparency and integrity.
The content in the documents exempted under subsection 47F(2) relate to personal
information either about third parties or personal information of employees of the department
and other agencies. The department is limited in what it can disclose in these submissions as
doing so would disclose identifying information about the exempt material. The department
acknowledges it is somewhat limited in the submissions it is able to make openly, in respect of
section 47F claims about third parties and the weighing of the public interest in relation to that
material. If it would assist the Information Commissioner, the department would be pleased to
provide further submissions in a confidential manner.
The names and contact details of departmental and agency staff and senior Commonwealth
public servants who have been involved in communications relating to the
Stradford proceedings are captured in the documents for the request. The department submits that the
applicant did not explicitly agree that names and contact details were irrelevant to the request
as was original y marked in the section 55G decision. The department submits that the names
and contact details of junior departmental officers and contact details for senior
Attorney-General's Department IC Submissions FOI23/463-IC
Page 17 of 32
Commonwealth public servants are exempt under subsection 47F(2). The department has not
applied the subsection 47F(2) exemption over the names of senior Commonwealth public
servants.
The personal information which the department has redacted under subsection 47F(2) is
neither wel known nor publicly available in a way that connects them to this department or the
material. Similarly, the relevant individuals are not known to have associated with the
department and relevant agencies in respect of the matters addressed in the documents. In all
the documents identified as being within the scope of the request, the department submits the
disclosure of the personal information would be unreasonable.
Public interest test
The department submits that the public interest in disclosing the information has not been
established. Further, the public interest factor weighing against the release of this information
is that it could reasonably be expected to prejudice the protection of an individual’s right to
privacy, including where it contains the personal information of third parties and current or
former departmental employees, and would reveal their name, previous or current employer or
contact details.
For these reasons, the department submits that it would be contrary to the public interest to
give access to this material and that it is exempt under section 47F of the FOI Act.
If you have any questions about these submissions please contact the FOI and Privacy Team on
02 6141 6666 or by emailing
xxx@xx.xxx.xx.
Yours sincerely
Kenneth Eagle
Assistant Secretary
Office of Corporate Counsel
Attachment A - Schedule of documents
Attachment B - Summary of processing of FOI Request
Attachment C - Summary of the Stratford matter and the department's role
Attorney-General's Department IC Submissions FOI23/463-IC
Page 18 of 32
Attachment A – Schedule of documents
Document Date
No. Description
Access
Exemption/s applied (original decision)
Exemption/s applied (submissions stage)
no
pgs
decision
1
30 August
3
Order made by the Refuse
Section 46(b):Documents disclosure of
Section 46(a): Documents disclosure of which
2023
Federal Court of
access
which would be contrary to a direction
would be in contempt of court
Australia
given by a tribunal or other body having
power to take evidence on oath
2
30 August
5
Summary of
Grant
2023
Federal Court of
access
Australia’s
judgment in
Stradford (a
pseudonym) v
Judge Vasta [2023]
FCA 1020
3
30 August
225 Federal Court of
Grant
2023
Australia’s reasons access
for judgment in
Stradford (a
pseudonym) v
Judge Vasta [2023]
FCA 1020
4
31 October 2
Order made by the Grant
2023
Federal Court of
access
Australia
5
30 August
5
Internal document Refuse
Section 7(2): Exemption of certain persons Section 7(2): Exemption of certain persons
2022
– handover notes
access
and bodies
and bodies
Section 22(1): Irrelevant material
Section 22(1): Irrelevant material
Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of which
which would be contrary to a direction
would be in contempt of court
Attorney-General's Department IC Submissions FOI23/463-IC
Page 19 of 32
Document Date
No. Description
Access
Exemption/s applied (original decision)
Exemption/s applied (submissions stage)
no
pgs
decision given by a tribunal or other body having Section 47C(1): Public interest conditional
power to take evidence on oath
exemption - Deliberative processes
Section 47C(1): Public interest conditional
Section 47E(d): Public interest conditional
exemption - Deliberative processes
exemption - Certain operations of agencies
Section 47E(d): Public interest conditional
Section 47F(1): Public interest conditional
exemption - Certain operations of agencies exemption - Personal Privacy
6
15 February 28 Full Court of then
Grant
2019
Family Court of
access
Australia decision
in
Stradford &
Stradford [2019]
FamCAFC 25.
7
9 April
4
Report
Refuse Section 7(2): Exemption of certain
Section 7(2): Exemption of certain persons
2021
access
persons and bodies
and bodies
Section 22(1): Irrelevant material
Section 22(1): Irrelevant material
Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of
which would be contrary to a direction
which would be in contempt of court
given by a tribunal or other body having
Section 47C(1): Public interest conditional
power to take evidence on oath
exemption - Deliberative processes
Section 47C(1): Public interest
Section 47E(d): Public interest conditional
conditional exemption - Deliberative
exemption - Certain operations of
processes
agencies
Section 47E(d): Public interest conditional Section 47F(1): Public interest conditional
exemption - Certain operations of agencies exemption - Personal Privacy
Section 47F(1): Public interest conditional
exemption - Personal Privacy
Attorney-General's Department IC Submissions FOI23/463-IC
Page 20 of 32
Document Date
No. Description
Access
Exemption/s applied (original decision)
Exemption/s applied (submissions stage)
no
pgs
decision
8
26 May
6
Email
Refuse Section 7(2): Exemption of certain
Section 22(1): Irrelevant material
2021
access
persons and bodies
Section 42(1): Documents subject to legal
Section 22(1): Irrelevant material
professional privilege
Section 42(1): Documents subject to
Section 46(a): Documents disclosure of
legal professional privilege
which would be in contempt of court
Section 46(b): Documents disclosure of
Section 47C(1): Public interest conditional
which would be contrary to a direction
exemption - Deliberative processes
given by a tribunal or other body having
power to take evidence on oath
Section 47C(1): Public interest
conditional exemption - Deliberative
processes
9
15 June
3
Email
Refuse Section 22(1): Irrelevant material
Section 22(1): Irrelevant material
2021
access
Section 42(1): Documents subject to
Section 42(1): Documents subject to legal
legal professional privilege
professional privilege
Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of
which would be contrary to a direction
which would be in contempt of court
given by a tribunal or other body having
Section 47C(1): Public interest conditional
power to take evidence on oath
exemption - Deliberative processes
Section 47C(1): Public interest
Section 47E(d): Public interest conditional
conditional exemption - Deliberative
exemption - Certain operations of
processes
agencies
Section 47F(1): Public interest conditional
exemption - Personal Privacy
10
25 June
6
Report
Refuse Section 7(2): Exemption of certain
Section 7(2): Exemption of certain persons
2021
access
persons and bodies Section 22(1):
and bodies
Irrelevant material
Section 22(1): Irrelevant material
Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of
which would be contrary to a direction
which would be in contempt of court
given by a tribunal or other body having
Section 47C(1): Public interest conditional
power to take evidence on oath
exemption - Deliberative processes
Attorney-General's Department IC Submissions FOI23/463-IC
Page 21 of 32
Document Date
No. Description
Access
Exemption/s applied (original decision)
Exemption/s applied (submissions stage)
no
pgs
decision Section 47C(1): Public interest
Section 47E(d): Public interest conditional
conditional exemption - Deliberative
exemption - Certain operations of
processes
agencies
Section 47E(d): Public interest
Section 47F(1): Public interest conditional
conditional exemption - Certain
exemption - Personal Privacy
operations of agencies
Section 47F(1): Public interest
conditional exemption - Personal
Privacy
11
30
6
Report
Refuse Section 7(2): Exemption of certain
Section 7(2): Exemption of certain persons
September
access
persons and bodies Section 22(1):
and bodies Section 22(1): Irrelevant
2021
Irrelevant material
material
Section 46(b): Documents disclosure of
Section 22(1): Irrelevant material
which would be contrary to a direction
Section 46(a): Documents disclosure of
given by a tribunal or other body having
which would be in contempt of court
power to take evidence on oath
Section 47C(1): Public interest conditional
Section 47C(1): Public interest
exemption - Deliberative processes
conditional exemption - Deliberative
Section 47E(d): Public interest conditional
processes
exemption - Certain operations of agencies
Section 47E(d): Public interest conditional
Section 47F(1): Public interest conditional
exemption - Certain operations of agencies exemption - Personal Privacy
Section 47F(1): Public interest conditional
exemption - Personal Privacy
12
18
2
Federal Court of
Refuse Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of which
February
Australia order
access
which would be contrary to a direction
would be in contempt of court
2022
given by a tribunal or other body having
power to take evidence on oath
Attorney-General's Department IC Submissions FOI23/463-IC
Page 22 of 32
Document Date
No. Description
Access
Exemption/s applied (original decision)
Exemption/s applied (submissions stage)
no
pgs
decision
13
22 June
3
Emails
Refuse Section 7(2): Exemption of certain persons Section 7(2): Exemption of certain persons
2021
access
and bodies Section 22(1): Irrelevant
and bodies Section 22(1): Irrelevant material
material
Section 42(1): Documents subject to legal
Section 42(1): Documents subject to
professional privilege
legal professional privilege
Section 46(a): Documents disclosure of
Section 46(b): Documents disclosure of
which would be in contempt of court
which would be contrary to a direction
Section 47C(1): Public interest conditional
given by a tribunal or other body having
exemption - Deliberative processes
power to take evidence on oath
Section 47F(1): Public interest conditional
Section 47C(1): Public interest conditional
exemption - Personal Privacy
exemption - Deliberative processes
14
Undated
1
Internal summary
Refuse Section 22(1): Irrelevant material
Section 22(1): Irrelevant material
document
access
Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of
which would be contrary to a direction
which would be in contempt of court
given by a tribunal or other body having
Section 47C(1): Public interest conditional
power to take evidence on oath
exemption - Deliberative processes
Section 47C(1): Public interest
Section 47E(d): Public interest conditional
conditional exemption - Deliberative
exemption - Certain operations of agencies
processes
Section 47E(d): Public interest conditional
exemption - Certain operations of agencies
15
22
7
Email
Refuse Section 7(2): Exemption of certain
Section 7(2): Exemption of certain persons
November
access
persons and bodies Section 22(1):
and bodies Section 22(1): Irrelevant
2023
Irrelevant material
material
Section 46(b): Documents disclosure of
Section 22(1): Irrelevant material
which would be contrary to a direction
Section 42(1): Documents subject to legal
given by a tribunal or other body having
professional privilege
power to take evidence on oath
Section 46(a): Documents disclosure of
Section 47C(1): Public interest
which would be in contempt of court
conditional exemption - Deliberative
Section 47C(1): Public interest conditional
processes
exemption - Deliberative processes
Attorney-General's Department IC Submissions FOI23/463-IC
Page 23 of 32
Document Date
No. Description
Access
Exemption/s applied (original decision)
Exemption/s applied (submissions stage)
no
pgs
decision Section 47E(d): Public interest
Section 47E(d): Public interest conditional
conditional exemption – Certain
exemption – Certain operations of
operations of agencies
agencies
Section 47F(1): Public interest conditional
exemption - Personal Privacy
16
14
22
Federal Court of
Refuse Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of
December
Australia Notice
access
which would be contrary to a direction
which would be in contempt of court
2020
of Filing
given by a tribunal or other body having
power to take evidence on oath
17
17
4
Report
Refuse Section 7(2): Exemption of certain
Section 7(2): Exemption of certain persons
February
access
persons and bodies Section 22(1):
and bodies Section 22(1): Irrelevant
2021
Irrelevant material
material
Section 46(b): Documents disclosure of
Section 22(1): Irrelevant material
which would be contrary to a direction
Section 46(a): Documents disclosure of
given by a tribunal or other body having
which would be in contempt of court
power to take evidence on oath
Section 47C(1): Public interest conditional
Section 47C(1): Public interest
exemption - Deliberative processes
conditional exemption - Deliberative
Section 47E(d): Public interest conditional
processes
exemption - Certain operations of agencies
Section 47E(d): Public interest conditional
Section 47F(1): Public interest conditional
exemption - Certain operations of agencies exemption - Personal Privacy
Section 47F(1): Public interest
conditional exemption - Personal
Privacy
18
7
5
Federal Court of
Refuse Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of
December
Australia Notice
access
which would be contrary to a direction
which would be in contempt of court
2020
of Filing
given by a tribunal or other body having
power to take evidence on oath
19
14
4
Federal Court of
Refuse Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of
December
Australia Notice
access
which would be contrary to a direction
which would be in contempt of court
2020
of Filing
given by a tribunal or other body having
Attorney-General's Department IC Submissions FOI23/463-IC
Page 24 of 32
Document Date
No. Description
Access
Exemption/s applied (original decision)
Exemption/s applied (submissions stage)
no
pgs
decision power to take evidence on oath
20
17
1
Email
Refuse Section 7(2): Exemption of certain
Section 7(2): Exemption of certain persons
February
access
persons and bodies Section 22(1):
and bodies Section 22(1): Irrelevant
2021
Irrelevant material
material
Section 42(1): Documents subject to
Section 42(1): Documents subject to legal
legal professional privilege
professional privilege
Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of
which would be contrary to a direction
which would be in contempt of court
given by a tribunal or other body having
Section 47E(d): Public interest conditional
power to take evidence on oath
exemption - Certain operations of agencies
Section 47F(1): Public interest conditional
exemption - Personal Privacy
21
18
3
Email
Refuse Section 7(2): Exemption of certain
Section 7(2): Exemption of certain persons
February
access
persons and bodies Section 22(1):
and bodies Section 22(1): Irrelevant
2021
Irrelevant material
material
Section 42(1): Documents subject to
Section 22(1): Irrelevant material
legal professional privilege
Section 42(1): Documents subject to legal
Section 46(b): Documents disclosure of
professional privilege
which would be contrary to a direction
Section 46(a): Documents disclosure of
given by a tribunal or other body having
which would be in contempt of court
power to take evidence on oath
Section 47C(1): Public interest conditional
Section 47C(1): Public interest
exemption - Deliberative processes
conditional exemption - Deliberative
Section 47F(1): Public interest conditional
processes
exemption - Personal Privacy
22
23
3
Email
Refuse Section 7(2): Exemption of certain
Section 7(2): Exemption of certain persons
February
access
persons and bodies
and bodies
2021
Section 22(1): Irrelevant material
Section 22(1): Irrelevant material
Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of
which would be contrary to a direction
which would be contempt of court
given by a tribunal or other body having
Section 42(1): Documents subject to legal
Attorney-General's Department IC Submissions FOI23/463-IC
Page 25 of 32
Document Date
No. Description
Access
Exemption/s applied (original decision)
Exemption/s applied (submissions stage)
no
pgs
decision power to take evidence on oath
professional privilege
Section 42(1): Documents subject to
Section 47C(1): Public interest conditional
legal professional privilege
exemption - Deliberative processes
Section 47C(1): Public interest
Section 47E(d): Public interest conditional
conditional exemption - Deliberative
exemption – Certain operations of
processes
agencies
Section 47E(d): Public interest
Section 47F(1): Public interest conditional
conditional exemption – Certain
exemption - Personal Privacy
operations of agencies
23
19 May
2
Email
Refuse Section 7(2): Exemption of certain
Section 7(2): Exemption of certain persons
2021
access
persons and bodies Section 22(1):
and bodies Section 22(1): Irrelevant
Irrelevant material
material
Section 46(b): Documents disclosure of
Section 22(1): Irrelevant material
which would be contrary to a direction
Section 46(a): Documents disclosure of
given by a tribunal or other body having
which would be contempt of court
power to take evidence on oath
Section 47C(1): Public interest conditional
Section 47C(1): Public interest
exemption - Deliberative processes
conditional exemption - Deliberative
Section 47E(d): Public interest conditional
processes
exemption - Certain operations of
Section 47E(d): Public interest conditional
agencies
exemption - Certain operations of agencies Section 47F(1): Public interest conditional
exemption - Personal Privacy
24
23 March
3
Email
Refuse Section 7(2): Exemption of certain
Section 7(2): Exemption of certain persons
2021
access
persons and bodies Section 22(1):
and bodies
Irrelevant material
Section 22(1): Irrelevant material
Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of
which would be contrary to a direction
which would be contempt of court
given by a tribunal or other body having
Section 47C(1): Public interest conditional
power to take evidence on oath
exemption - Deliberative processes
Section 47C(1): Public interest
Section 47E(d): Public interest conditional
conditional exemption - Deliberative
exemption - Certain operations of
Attorney-General's Department IC Submissions FOI23/463-IC
Page 26 of 32
Document Date
No. Description
Access
Exemption/s applied (original decision)
Exemption/s applied (submissions stage)
no
pgs
decision processes
agencies
Section 47E(d): Public interest conditional
Section 47F(1): Public interest conditional
exemption - Certain operations of agencies exemption - Personal Privacy
25
24
3
Email
Refuse Section 22(1): Irrelevant material
Section 42(1): Documents subject to legal
November
access
Section 42(1): Documents subject to
professional privilege
2021
legal professional privilege
Section 46(a): Documents disclosure of
Section 46(b): Documents disclosure of
which would be contempt of court
which would be contrary to a direction
Section 47F(1): Public interest conditional
given by a tribunal or other body having
exemption - Personal Privacy
power to take evidence on oath
26
8 June
4
Email
Refuse Section 22(1): Irrelevant material
Section 7(2): Exemption of certain persons
2021
access
Section 46(b): Documents disclosure of
and bodies
which would be contrary to a direction
Section 22(1): Irrelevant material
given by a tribunal or other body having
Section 46(a): Documents disclosure of
power to take evidence on oath
which would be in contempt of court
Section 47C(1): Public interest
Section 47C(1): Public interest conditional
conditional exemption - Deliberative
exemption - Deliberative processes
processes
Section 47E(d): Public interest conditional
Section 47E(d): Public interest
exemption – Certain operations of
conditional exemption – Certain
agencies
operations of agencies
Section 47F(1): Public interest conditional
exemption - Personal Privacy
Attorney-General's Department IC Submissions FOI23/463-IC
Page 27 of 32
Document Date
No. Description
Access
Exemption/s applied (original decision)
Exemption/s applied (submissions stage)
no
pgs
decision
27
24 May
2
Correspondence
Refuse Section 22(1): Irrelevant material
Section 22(1): Irrelevant material
2021
access
Section 46(b): Documents disclosure of
Section 46(a): Documents disclosure of
which would be contrary to a direction
which would be in contempt of court
given by a tribunal or other body having
Section 47E(d): Public interest conditional
power to take evidence on oath
exemption – Certain operations of
Section 47E(d): Public interest
agencies
conditional exemption – Certain
operations of agencies
Attorney-General's Department IC Submissions FOI23/463-IC
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Attachment B - Processing request On 30 August 2023 at 2pm, the applicant made a Freedom of Information (FOI) request to the
Attorney-General’s Department (the department) via the Right to Know platform for:
Under the FOI Act 1982 I request any and all documents relating to the Commonwealth's
involvement in the false imprisonment of the applicant in Stradford (a pseudonym) v Judge
Vasta [2023] FCA 1020.
On 30 August 2023 at 2:14pm, the applicant wrote to the department to expand on the scope
of his request. He stated:
Also, to the extent that it is not covered by my original FOI request, under the FOI Act
I request any and all documents setting out the cost to the Commonwealth of defending the
matter in Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020.
This request was al ocated the reference FOI23/463.
On 30 August 2023 the applicant made the same request to the Office of the Attorney-General
(the Office) via the Right to Know platform, which was al ocated reference AGOFOI23/465.
The Office transferred that request to the department for processing – the request was
al ocated reference FOI23/500 on transfer. That request was then processed concurrently with
FOI23/463. Therefore, both references FOI23/500 and FOI23/463 are listed on the substantive
decision letter made on 18 April 2024.
Between 31 August 2023 and 7 September 2023, the department engaged with the applicant to
clarify its understanding of the scope of the documents requested by the applicant. This was
because the scope of the request was broad and initial searches indicated a large number of
documents were potential y covered by the request. The department sought to clarify the
scope of the request and the particular documents in which the applicant had an interest. This
engagement did not revise the scope of the request and no further substantive information was
received from the applicant to clarify his request.
On 29 September 2023, as the department had not made a decision in relation to the request
for information in FOI23/463 within the statutory timeframe, it was deemed that the
department had refused to give access to the requested documents – pursuant to section 15AC
of the FOI Act. An IC Review commenced on 27 November 2023.
The department continued to process its decision in relation to the request and this decision
was finalised under section 55G in two tranches. The first tranche of the decision was made on
27 March 2024 and the second and final tranche of the decision was made on 18 April 2024.
The department identified 27 documents within the scope of the request, with 4 documents
being released in ful and access refused to 23 documents, under the following sections of the
FOI Act:
• section 7 (exemption of certain persons and bodies)
• section 22 (irrelevant material)
Attorney-General's Department IC Submissions FOI23/463-IC
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• section 42 (legal professional privilege)
• section 46 (documents disclosure of which would be in contempt of Parliament or
court)
• section 47C (deliberative processes)
• section 47E (certain operations of agencies), and
• section 47F (personal privacy).
On 22 August 2024 the OAIC determined the duplicate request FOI23/500, which was made to
the Office and transferred to the department for processing was not correctly transferred. The
office then processed a section 55G decision for that request with reference AGOFOI23/465. On
28 October 2024, the OAIC advised the department that the IC review for AGOFOI23/465
(MR23/01375) had been withdrawn by the applicant and the matter was finalised under section
54R of the FOI Act.
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Attachment C - Stradford proceedings and the
Attorney-General’s Department's role
The Attorney-General’s Department (the department) notes that the title of the proceeding
that was before the Federal Court of Australia (Federal Court) is
Stradford (a pseudonym) v His
Honour Judge Salvatore Paul Vasta & Ors (Federal Court proceeding ACD57/2020). The medium
neutral citation for the Federal Court’s judgment which was delivered on 30 August 2023 is
Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020. For the purposes of these submissions,
the department wil refer to the proceedings as the
Stradford proceedings or
Stradford.
The
Stradford proceedings
Mr Stradford was a party to a family law property proceeding before Judge Vasta in the then
Federal Circuit Court of Australia. Judge Salvatore Vasta ordered that Mr Stradford be
imprisoned for 12 months, purportedly for contempt of court. Mr Stradford spent 7 days in
police custody and prison before the order which resulted in his imprisonment was stayed
pending an appeal. On appeal, the Ful Court of the then Family Court of Australia overturned
Judge Vasta’s orders. Mr Stradford then initiated proceedings in the Federal Court against Judge
Vasta, the Commonwealth and the State of Queensland, seeking damages for false
imprisonment.
In the Federal Court proceedings, Mr Stradford claimed that by ordering him to imprisonment,
Judge Vasta committed the torts of false imprisonment and collateral abuse of process.
Mr Stradford also claimed that the Commonwealth and the State of Queensland were
vicariously liable for the actions of their security, police and correctional services officers, who
caused him to be falsely imprisoned.
On 30 August 2023, the Federal Court delivered its judgment. The Federal Court held that the
respondents – Judge Vasta, the Commonwealth and the State of Queensland – were liable for
the false imprisonment of Mr Stradford and that Mr Stradford is entitled to damages from the
respondents.
On 28 September 2023, al three respondents filed notices of appeal to the Ful Court of the
Federal Court. On 8 February 2024, the respondents’ appeals were removed into the High Court
of Australia (High Court). On 14 and 15 August 2024, the Ful Bench of the High Court heard the
appeals.
On 12 February 2025, the High Court delivered its judgment. The High Court al owed Judge
Vasta’s, the Commonwealth’s and Queensland’s appeals and substituted orders made by the
Federal Court on 30 August 2023, with an order that Mr Stradford’s proceedings be dismissed.
The issues that arose in the
Stradford proceedings are of significant policy interest to the
department. The first issue is the scope of judicial immunity for federal inferior court judges.
The second issue is the existence of a common law defence for persons executing court orders
that are apparently valid on their face but which later turn out to be invalid.
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The department's records
The areas of the department that held documents relevant to the
Stradford proceedings are the
Office of Legal Services Coordination (OLSC) and the Federal Courts Branch (FCB).
OLSC works to ensure that Australian Government agencies receive consistent and
well-coordinated legal service and it also administers the
Legal Services Directions 2017 (the
Directions).
Paragraph 3 of the Directions requires non-corporate Commonwealth entities and a corporate
Commonwealth entity (that was an Agency within the meaning of the
Financial Management
and Accountability Act 1997 on 30 June 2014), to report to OLSC on significant issues that arise
in the provision of legal services, including in relation to handling of claims, litigation and
involvement in dispute management.
Certain documents initial y identified by OLSC as being in scope of the applicant’s request were
later considered to be outside of scope because they did not relate to specific matters raised in
the request, being the Commonwealth’s involvement in the false imprisonment of Mr Stradford
or the costs to the Commonwealth of defending the proceedings. Rather, they related to the
general management of the proceeding as reported to OLSC, or to information such as ordinary
processing instructions or references to published media articles.
FCB provides policy advice to government about matters relating to the federal courts: the High
Court, the Federal Court and the Federal Circuit and Family Court of Australia (FCFCOA).
FCB provides advice in relation to the following matters:
• the conferral of federal jurisdiction on courts and related issues
• the role, structure and administration of the federal courts
• federal court operations and resources
• matters arising under legislation relating to federal courts and the judiciary, and
• terms and conditions applying to federal judicial officers.
As part of its key responsibilities, FCB maintains a strong policy interest in relation to the
development of the common law doctrine of judicial immunity and its application to judges of
the federal courts. For this reason, FCB had a keen interest in the progress of the
Stradford
proceedings.
FCB also has a policy interest in the implications of the
Stradford proceedings for the liability of
Commonwealth, state and territory police, correctional and security officers who execute court
orders which are apparently valid on their face but are later found to be invalid.
Because of OLSC’s and FCB’s key roles and responsibilities, the department held a large number
of documents relating to, or associated with, the
Stradford proceedings. However, the majority
of the documents the department held did not relate to:
• the Commonwealth’s role as one of the named respondents in the proceedings,
• the Commonwealth’s involvement in the alleged false imprisonment of Mr Stradford, or
• the costs to the Commonwealth of defending the proceedings.
Neither OLSC nor FCB are responsible for the Commonwealth’s conduct of the proceedings as a
party to the proceedings.
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