FOI Reference: LEX 11661
File Reference: 24/38067
November 2024
Tyler (Right to Know)
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 grant you access to an edited copy of the documents, with irrelevant and exempt
material removed.
Your request
On 18 October 2024 you sought access to:
- documents that were submitted to the Governor-General, or other relevant officers
(e.g. Prime Minister??), for approval of appointment of Hon. George Brandis KC to the
post of High Commissioner to the United Kingdom;
- letters of credence, or similar written correspondences (between governments
within the Commonwealth of Nations), from Australia to the UK, and from the UK to
the Australia, conveying and accepting (or otherwise confirming) the above
appointment.
(I understand that the above appointment took place in 2018.)
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)(ii ) 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 wil ing 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.
For these reasons, I have decided that the information marked up in the documents is
exempt under section 33(a)(ii ) of the FOI Act.
Material communicated in confidence (section 33(b) of the FOI Act)
Under section 33(b) of the FOI Act, a document is exempt if disclosure would divulge any
matter communicated in confidence to the Australian Government by or on behalf of a
foreign government, an authority of a foreign government or an international organisation.
Information is communicated in confidence by or on behalf of another government or
international organisation if it was communicated under an express or implied
understanding that the communication would be kept confidential (FOI Guidelines,
paragraph 5.46). Paragraph 5.44 of the FOI Guidelines also provides that an understanding
of confidentiality need not be formal and may be inferred from the circumstances in which
the communications occurred.
For these reasons, I have decided that the information marked up in the documents is
exempt under section 33(b) of the FOI Act.
Irrelevant and excluded material (section 22(1)(a)(i ) of the FOI Act)
Some of the material excluded from the documents released to you is outside the scope or
could reasonably be regarded as irrelevant to your request (section 22(1)(a)(ii) of the
FOI Act).
In determining what is relevant to your request, I have also taken into account the terms of
your request and the email which you received from the department on 18 October 2024, in
which you were invited to respond if you required the personal information of junior staff
from ministerial offices and government officials not in the Senior Executive Service (SES) or
equivalent, including their email addresses and contact numbers, together with al
signatures, mobile phone numbers, departmental inboxes and technical transmission details
including reference numbers. As you have not stated that you require this information, I
have decided to remove it from the documents being released to you.
Declassifying documents
The department wil declassify a document before it is released to you. This process involves
redacting the original security classification on a document. If applicable, the redaction wil
appear as a black rectangle at the top of the document. For further information regarding
sensitive and classified information please see the Protective Security Policy Framework.
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
Elizabeth McGregor
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 wil 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.
