FOI Reference: LEX 11554
File Reference: 24/34550
4 November 2024
Tyler
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Tyler
Re: Freedom of Information Request
I refer to your request received by the Department of Foreign Affairs and Trade (the
department) for access to documents under the
Freedom of Information Act 1982 (the
FOI Act).
I am writing to provide you with a decision about your request.
I have identified documents relevant to your request. After careful consideration, I have
decided to refuse access to the documents because they are exempt in full under the FOI
Act.
Your request
On 3 September 2024, you sought access to:
copy of formal correspondence between the governments of Australia and Papua
New Guinea on the matter, and copy of any written document stating the formal
legal or diplomatic position of the Australian government on the matter? (if possible,
covering the period from 2005 to 2006 inclusive)
On 2 October 2024, the department requested a 16-calendar day extension of time to
process your request (section 15AA of the FOI Act).
On 2 October 2024, you consented to the extension of time. The department subsequently
notified the Office of the Australian Information Commissioner (OAIC) of the extension of
time in accordance with our reporting obligations.
On 18 October 2024, the department requested a further 14-calendar day extension of time
to process your request (section 15AA of the FOI Act).
On 18 October 2024, you consented to the extension of time. The department subsequently
notified the Office of the Australian Information Commissioner (OAIC) of the further
extension of time in accordance with our reporting obligations.
Authority
I am an officer authorised under section 23 of the FOI Act to make decisions in relation to
FOI requests.
Reasons
In making my decision I have taken into account:
• the terms of your request;
• the documents within the scope of your request;
• the FOI Act; and
• the guidelines issued by the Australian Information Commissioner under section 93A
of the FOI Act (FOI Guidelines).
The reasons for my decision and for the application of exemptions under the FOI Act to the
document are set out below. Where I refer to sections of the FOI Act, these are available at
www.legislation.gov.au. Where I refer to parts of the FOI Guidelines, these are available at
www.oaic.gov.au/freedom-of-information/freedom-of-information-guidance-for-
government-agencies/foi-guidelines.
Damage to international relations (section 33(a)(i i) of the FOI Act)
Under section 33(a)(iii) of the FOI Act, a document is exempt if its disclosure would, or could
reasonably be expected to, cause damage to the international relations of the
Commonwealth.
The phrase ‘international relations’ has been interpreted to mean the ability of the
Australian Government to maintain good working relations with other governments and
international organisations and to protect the flow of confidential information between
them (FOI Guidelines, paragraph 5.39). This applies to documents, the disclosure of which
could diminish the confidence which another country has in Australia as a reliable recipient
of confidential information, making that country or its agencies less willing to cooperate
with Australian agencies in future (paragraph 5.42 of the FOI Guidelines).
Furthermore, the expression ‘damage’ could include intangible damage, including inhibiting
future negotiations between the Australian Government and a foreign government, or the
future flow of confidential information from a foreign government (paragraph 5.25 of the
FOI Guidelines).
I have had regard to the nature of the information, the circumstances in which it was
communicated, and the nature of Australia’s international relationship with the foreign
country (FOI Guidelines, paragraph 5.40). Based on these considerations, I consider that the
disclosure of the relevant material to which you seek access, would be reasonably likely to
cause damage to Australia’s foreign relationships, particularly with, but not limited to,
Papua New Guinea.
For these reasons, I have decided that the information marked up in the documents is
exempt under section 33(a)(iii) of the FOI Act.
As the documents in question are exempt from release in full by virtue of section 33(a)(iii), I
have not considered in detail whether any other exemptions apply to this material. I am,
however, of the view that some or al of the documents you requested may also be exempt
from release in full or in part under other sections of the FOI Act.
Review rights
Information about your review rights is set out in the
Attachment for your reference.
Contact
Should you have any queries regarding this matter please contact the Freedom of
Information Section by email (xxx@xxxx.xxx.xx).
Yours sincerely
Alison Carrington
Assistant Secretary
Department of Foreign Affairs and Trade
Attachment
Your review rights
Internal review
You may apply for internal review of the decision (section 54 of the FOI Act). The internal
review application must be made within 30 calendar days from the day you receive this
notice.
Where possible, please attach reasons why you believe review of the decision is necessary.
The internal review will be carried out by another officer within 30 days.
Any request for internal review should be directed via email to xxx@xxxx.xxx.xx or
addressed to:
Freedom of Information Section
Department of Foreign Affairs and Trade
R G Casey Building
John McEwen Crescent
Barton ACT 0221
Australia
Australian Information Commissioner
You may apply to the Australian Information Commissioner to review my decision
(section 54L of the FOI Act). To do this, you must contact the Australian Information
Commissioner within 60 calendar days from the day you receive this notice.
You may also make a complaint to the Australian Information Commissioner about the
Department’s actions in relation to this decision (section 70 of the FOI Act). Making such a
complaint about the way the Department has handled your FOI request is a separate
process to seeking review of my decision.
Further information on applying for an Australian Information Commissioner review is
available at: www.oaic.gov.au/freedom-of-information/your-freedom-of-information-
rights/freedom-of-information-reviews.
Further information about how to make a complaint is available at:
www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-
information-complaints.
Third party review rights
Further information about third party review rights are available on the Office of the
Australian Information Commissioner’s (OAIC) website at www.oaic.gov.au/freedom-of-
information/freedom-of-information-guidance-for-government-agencies/freedom-of-
information-reviews/personal-and-business-information-third-party-review-rights.
