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Our reference: FOI 25-176
Ash Roth
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ash Roth
Decision on your Freedom of Information Request
On 8 November 2024, you submitted a request to the Department of Infrastructure, Transport, Regional
Development, Communications and the Arts (the Department), seeking access to documents under the
Freedom of Information Act 1982 (FOI Act).
1
Your request
You requested access to:
Briefing notes and other briefing materials (such as emails or presentations prepared by the
Department) to the Secretary, eSafety Commissioner, or to the Minister/Minister's office on the
proposed age restrictions or under-age access ban to be imposed on social media platforms.
I am seeking the materials that were sent/received between 1 September 2024 and 7 November 2024.
Please exclude personal information of individual staff, documents that are explicitly prepared for
submission to Cabinet or National Cabinet, and drafting instructions for legislation. For clarity, I am
also not seeking correspondence received or sent to stakeholders external to government, or
briefings prepared by external parties to government.
2
Authority to make decision
I am authorised by the Secretary to make decisions in relation to Freedom of Information requests under
section 23(1) of the FOI Act.
GPO Box 594, Canberra ACT 2601, Australia
(02) 6274 7111
infrastructure.gov.au
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link to page 12 link to page 12
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3
Decision
I have identified 11 documents that I consider contain information that is relevant to your request. These
documents were in the possession of the Department when your request was received.
I have decided to:
• grant access in full to relevant information in 3 documents
• grant partial access to 6 documents, and
• refuse access to 2 documents
A schedule setting out the documents relevant to your request, with my decision in relation to these
documents, is
at ATTACHMENT A.
3.1 Publicly available documents
A ‘document’ that may be requested under the FOI Act does not include material maintained for reference
purposes that is otherwise publicly available. (section 4 of the FOI Act refers).
I have decided that Document 7 Attachment C falls outside the scope of the FOI Act as it consists of material
maintained for reference purposes that is otherwise publicly available. This attachment consists of
documents already published at the links included in the schedule a
t ATTACHMENT A.
4
Finding of facts and reasons for decision
My findings of fact and reasons for deciding that exemptions apply to parts of the documents relevant to
your request are set out below.
4.1 Section 34 - Cabinet documents
Section 34(1)(a) of the FOI Act provides that a document is an exempt document if both of the following are
satisfied:
(i)
it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister
to be so submitted and
(ii)
it was brought into existence for the dominant purpose of submission for consideration by the
Cabinet
Section 34(1)(c) of the FOI Act provides that a document is an exempt document if it was brought into
existence for the dominant purpose of briefing a Minister on a document to which subsection (a) above
applies.
Section 34(3) of the FOI Act provides that a document is an exempt document to the extent that it contains
information the disclosure of which would reveal a Cabinet deliberation or decision, unless the existence of
the deliberation or decision has been officially disclosed.
Paragraph 5.63 of the FOI Guidelines states that the Cabinet exemption is designed to protect the
confidentiality of the Cabinet process and to ensure that the principle of collective ministerial responsibility
(fundamental to the Cabinet system) is not undermined.
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Paragraphs 21, 23 105 and 106 of the Cabinet Handbook1 respectively state:
21.
The principle of collective responsibility requires that ministers should be able to express
their views frankly in Cabinet meetings in the expectation that they can argue freely in
private while maintaining a united front in public when decisions have been reached. This in
turn requires that opinions expressed in the Cabinet and Cabinet Committees, including in
documents and any correspondence, are treated as confidential.
23.
The vital importance of confidentiality in relation to the deliberations of Cabinet is
recognised in legislation and under the common law. The Freedom of Information Act 1982
(the Act), for example, recognises the special nature of Cabinet deliberations in the
exemption it provides for certain Cabinet documents from disclosure under the Act (subject
to limited exceptions). Cabinet confidentiality is also a well-established ground for not
producing documents or information on a public interest immunity basis to courts, royal
commissions or legislatures.
105.
Cabinet documents are considered to be the property of the Government of the day. They
are not departmental records. As such they must be held separately from other working
documents of government administration.
106.
The unauthorised and premature disclosure of Cabinet documents, including draft Cabinet
documents (such as draft Cabinet minutes), undermines collective ministerial responsibility.
It also undermines the convention of Cabinet confidentiality. It is essential that the
confidentiality of Cabinet documents, including draft Cabinet documents, is maintained to
enable full and frank discussions to be had prior to the Cabinet making its decision.
I have had regard to the circumstances in which the documents marked ‘s34(1)(c)’ in the schedule were
brought into existence, and I am satisfied that they were created for the dominant purpose of briefing a
Minister on a document to which subsection (a) applies.
I have had regard to the content of the documents marked ‘s34(3)’ in the schedule and am satisfied that they
contain information the disclosure of which would reveal a Cabinet deliberation or decision which has not
been officially disclosed.
In considering the application of this exemption, I undertook consultation with the Department of the Prime
Minister and Cabinet, and confirmed that the relevant information remains subject to Cabinet confidentiality.
For the reasons set out above, I decided that the parts of the documents marked ‘s34’ are exempt under
section 34 of the FOI Act.
4.2 Section 42 - Documents subject to legal professional privilege
Section 42 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.
The FOI Guidelines state:
5.149
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 purpose of giving or receiving legal advice, or
use in connection with actual or anticipated litigation
1
www.pmc.gov.au/government/administration/cabinet-handbook-15th-edition
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• whether the advice given is independent
• whether the advice given is confidential
I am satisfied that parts of the documents marked ‘s42’ consist of information that is subject to legal
professional privilege. I am satisfied that :
• the necessary legal adviser-client relationship exists; the legal adviser was acting in their capacity
as a professional legal adviser and the giving of the advice was attended by the necessary degree
of independence
• the communication was brought into existence for the dominant purpose of giving or receiving legal
advice
• the advice was provided independently, and
• the advice provided was confidential.
For the reasons outlined above, I decided that parts of the documents marked ‘s42’ are exempt from
disclosure under section 42 of the FOI Act.
4.3 Section 47C – Deliberative processes
Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure would disclose
matter (
deliberative 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 in the functions of an agency; or a Minister; or the
Government of the Commonwealth.
Deliberative process
Paragraph 6.54 of the FOI Guidelines states that 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.
Deliberative matter
Paragraph 6.59 of the FOI Guidelines states that ‘
deliberative matter’ is a shorthand term for ‘opinion, advice
and recommendation’ and ‘consultation and deliberation’ that is recorded or reflected in a document. There
is no reason generally to limit the ordinary meanings given to the words ‘opinion, advice or recommendation,
consultation or deliberation’.
I am satisfied that parts of the documents marked ‘s47C’ contain material that meets the criteria of
deliberative matter, and that this material forms part of a deliberative process. The documents set out the
weighing up and evaluation of competing arguments, and can be characterised as the thinking process of the
Department or the process of reflection upon the wisdom and expediency of a particular proposal.
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Interaction with Cabinet documents exemption
Paragraph 6.76 of the FOI Guidelines states:
6.76
In some cases, a document may contain deliberative matter that relates to Cabinet in some way but
is not exempt under the Cabinet documents exemption in s 34. An example would be a document
containing deliberative matter that is marked ‘Cabinet-in-Confidence’ but nonetheless does not
satisfy any of the exemption criteria in s 34. Disclosing a document of this kind will not necessarily be
contrary to the public interest only because of the connection to Cabinet deliberations. For example,
disclosure is less likely to be contrary to the public interest if:
• the document contains deliberative but otherwise non-sensitive matter about a policy
development process that has been finalised and
• the Government has announced its decision on the issue.
I am satisfied that the deliberative matter marked 47C in the documents relates to matters which are subject
to ongoing Cabinet deliberation, but that it does not meet the limited application of section 34 of the FOI
Act. The material is marked ‘Cabinet-in-Confidence’ but nonetheless does not satisfy any of the exemption
criteria in section 34.
For the reasons outlined above, I decided parts of the documents marked ‘s47C’ are conditionally exempt
from disclosure under section 47C of the FOI Act.
Where information is found to be conditionally exempt, I must give access to that information unless access
at this time would, on balance, be contrary to the public interest. I have addressed the public interest
considerations below.
4.4 Section 47F – Documents affecting personal privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure would involve
the unreasonable disclosure of personal information about any person (including a deceased person).
Personal Information
Personal information has the same meaning as in the Privacy Act. Specifically, section 6 of the Privacy Act
provides that
personal information means information or an opinion about an identified individual, or an
individual who is reasonably identifiable whether the information or opinion is true or not; and whether the
information or opinion is recorded in a material form or not.
Paragraph 6.126 of the FOI Guidelines states that for particular information to be personal information, an
individual must be identified or reasonably identifiable.
Paragraph 6.125 of the FOI Guidelines states that personal information can include a person’s name, address,
telephone number, date of birth, medical records, bank account details, taxation information and signature.
An individual is a natural person rather than a corporation, trust, body politic or incorporated association.
I am satisfied that parts of the documents marked ‘s47F’ include personal information about a number of
individuals.
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Unreasonable Disclosure of Personal Information
Section 47F(2) of the FOI Act provides that, in determining whether the disclosure would involve the
unreasonable disclosure of personal information, I must have regard to the following matters:
(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
(d)
any other matters that the agency or Minister considers relevant.
Paragraph 6.133 of the FOI Guidelines states that:
The personal privacy conditional exemption is designed to prevent the unreasonable invasion of third
parties’ privacy. The test of ‘unreasonableness’ implies a need to balance the public interest in
disclosure of government-held information and the private interest in the privacy of individuals. The
test does not, however, amount to the public interest test of s 11A(5), which follows later in the
decision making process. It is possible that the decision maker may need to consider one or more
factors twice, once to determine if a projected effect is unreasonable and again when assessing the
public interest balance.
I note that the AAT, in
Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437 at
paragraph 259, stated that:
... whether a disclosure is ‘unreasonable’ requires … a consideration of all the circumstances, including
the nature of the information that would be disclosed, the circumstances in which the information was
obtained, the likelihood of the information being information that the person concerned would not
wish to have disclosed without consent, and whether the information has any current relevance … it
is also necessary in my view to take into consideration the public interest recognised by the Act in the
disclosure of information … and to weigh that interest in the balance against the public interest in
protecting the personal privacy of a third party ...
Paragraphs 6.137-6.139 of the FOI Guidelines state:
6.137
Key factors for determining whether disclosure is unreasonable include:
• the author of the document is identifiable
• the documents contain third party personal information
• release of the documents would cause stress on the third party
• no public purpose would be achieved through release
6.138
As discussed in the IC review decision of
‘FG’ and National Archives of Australia [2015] AICmr 26, other factors considered to be relevant include:
• 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
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• 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
6.139
The leading IC review decision on s 47F is ‘BA’ and Merit Protection Commissioner in which
the Information Commissioner explained that the object of the FOI Act to promote
transparency in government processes and activities needs to be balanced with the purpose
of s 47F to protect personal privacy.
I am satisfied that the disclosure of personal information contained within the documents would, in the
circumstances, constitute an unreasonable disclosure of personal information for the following reasons:
• the conditionally exempt personal information is not well known
• the person to whom the personal information relates is not known to be (or to have been)
associated with the matters dealt with in the document
• the conditionally exempt personal information is not available from publicly accessible sources
• the individuals whose personal information is contained in the documents are identifiable
• release of this information would cause stress to the individuals concerned
• no further public purpose would be achieved through the release of the personal information
• the information is current and has not lost its sensitivity through the passage of time
• the individuals would not expect the information to be placed in the public domain, and detriment
may be caused to the individuals to whom the information relates, and
• the FOI Act does not control or restrict any subsequent use or dissemination of information
released under the FOI Act.
I have consulted with affected third parties regarding the disclosure of their personal information, and I have
considered any concerns raised by those individuals during the course of making my decision.
For the reasons outlined above, I decided parts of the documents marked ‘s47F’ are conditionally exempt
from disclosure under section 47F of the FOI Act.
Where information is found to be conditionally exempt, I must give access to that information unless access
at this time would, on balance, be contrary to the public interest. I have addressed the public interest
considerations below.
4.5 Public interest considerations
Pursuant to section 11A(5) of the FOI Act, I must give access to conditionally exempt information unless
access to that information at that time would, on balance, be contrary to the public interest. I have therefore
considered whether disclosure of the conditionally exempt information would be contrary to the public
interest.
I note that paragraph 6.224 of the FOI Guidelines states that the public interest test is considered to be:
• something that is of serious concern or benefit to the public, not merely of individual interest
• not something of interest to the public, but in the interest of the public
• not a static concept, where it lies in a particular matter will often depend on a balancing of interests
• necessarily broad and non-specific and
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• relates to matters of common concern or relevance to all members of the public, or a substantial
section of the public.
Factors favouring disclosure
Having regard to section 11B of the FOI Act, which provides the factors favouring access to conditionally
exempt information in the public interest, I consider that disclosure of the conditionally exempt information
at this time:
1)
would provide access to documents held by an agency of the Commonwealth, which would
promote the objects of the FOI Act by providing the Australian community with access to
information held by the Australian Government
o I note that paragraph 6.230 of the FOI Guidelines suggests it would be a rare case in which
disclosure would not promote the objects of the FOI Act, including by increasing scrutiny,
discussion, comment and review of the government’s activities.
2)
would to a limited degree inform debate on a matter of public importance
3)
would not promote effective oversight of public expenditure
4)
would not allow you access to your own personal information.
o I note you are not seeking access to your own personal information and this factor is mute in
my considerations.
Factors weighing against disclosure
I consider that the following factors weigh against disclosure of the conditionally exempt information at this
time, on the basis that disclosure:
1)
could reasonably be expected to prejudice the early developmental stages of forming opinion,
advice and recommendations during deliberative processes by creating an environment in which
there is a chilling effect on the open consideration of all options that have potential to be put
forward
2)
could reasonably be expected to prejudice the protection a number of individuals’ right to
personal privacy
o The Department is committed to complying with its obligations under
the Privacy Act 1988
(the Privacy Act), which sets out standards and obligations that regulate how we must handle
and manage personal information. I consider it is firmly in the public interest that we uphold
the rights of individuals to their own privacy and meet our statutory obligations under the
Privacy Act.
o I note that the substance of the information that is relevant to your request has been
released to you and disclosure of the conditionally exempt personal information would not
provide you with any further insight into the workings of government beyond that
substantive information.
In making my decision, I have not taken into account any of the irrelevant factors set out in section 11B(4) of
the FOI Act.
Conclusion – disclosure is not in the public interest
For the reasons set out above, after weighing all public interest factors for and against disclosure, I decided
that, on balance, disclosure of the conditionally exempt information would be contrary to the public interest.
I am satisfied that the benefit to the public resulting from disclosure of the conditionally exempt information
is outweighed by the benefit to the public of withholding that information.
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4.6 Section 22 – deletion of material from documents released to you
Section 22 of the FOI Act applies to documents containing irrelevant and/or exempt material and allows an
agency to delete such material from a document.
Exempt material
As I decided that some information you have requested is exempt from disclosure, I have prepared an edited
copy of the documents released to you by deleting the exempt information under section 22(1)(a)(i) of the
FOI Act.
Irrelevant material
I decided that the documents captured by your request contain material which can reasonably be regarded
as irrelevant to your request. Some of the briefing material relevant to your request covers multiple topics,
only one of which is relevant to your request. Your request specifically relates to proposed age restrictions
on social media, and as such I have decided that any information contained within the Ministerial Brief which
does not relates to proposed age restrictions can reasonably be regarded as irrelevant to your request.
The documents also contain personal identifiers of public servants. When your request was acknowledged,
we notified you that personal information of public servants below the SES level and all email addresses,
signatures and direct telephone numbers would be considered irrelevant to the scope of your request unless
you told us that you were expressly seeking access to that information. On the basis that you did not notify
us otherwise, I decided this information is irrelevant to your request.
As such, an edited copy of the documents has been prepared in accordance with section 22(1)(a)(ii) of the
FOI Act. This information is marked ‘s22’ in the documents released to you.
5
Material taken into consideration
In making my decision, I had regard to the following:
• the terms of your request
• the content of the documents captured by your request
• the provisions of the FOI Act
• the guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act
(the FOI Guidelines)
• advice from departmental officers with responsibility for the subject matter contained in the
documents captured by your request
• submissions from third parties consulted about documents which contain information concerning
them.
6
Legislative provisions
The FOI Act, including the provisions referred to in my decision, are available on the Federal Register of
Legislation website:
www.legislation.gov.au/Series/C2004A02562.
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7
Your review rights
If you are dissatisfied with my decision, you may apply for a review of it.
7.1 Internal review
You can request an internal review within 30 days of receiving this decision. An internal review will be
conducted by a different departmental officer from the original decision-maker.
No particular form is required to apply for review although it will assist the Department if you are able to set
out the grounds on which you believe that the original decision should be changed.
Applications for internal review can be sent to
xxx@xxxxxxxxxxxxxx.xxx.xx.
If you choose to seek an internal review, you will also have a right to apply for Information Commissioner
review (IC review) of the internal review decision once it has been provided to you if you remain dissatisfied
with the decision.
7.2 Information Commissioner review or complaint
An application for IC review must be made in writing to the Office of the Australian Information Commissioner
(OAIC) within 60 days of the decision.
If you are not satisfied with the way we have handled your FOI request, you can lodge a complaint with the
OAIC. However, the OAIC suggests that complaints are made to the agency in the first instance.
More information about the Information Commissioner reviews and complaints is available on the OAIC
website here:
www.oaic.gov.au/freedom-of-information/foi-review-process.
8
Publication of material released under the FOI Act
Where I have decided to release documents to you, we may also publish the released material on our
Disclosure Log. We will not publish personal or business affairs information where it would be unreasonable
to do so.
For your reference our Disclosure Log can be found here
: www.infrastructure.gov.au/about-us/freedom-
information/freedom-information-disclosure-log.
Further information
If you require further information regarding this decision, please contact the Department’s FOI Section
at
xxx@xxxxxxxxxxxxxx.xxx.xx.
Yours sincerely
Andrew Irwin
Assistant Secretary
Online Safety Branch
Digital Platforms, Safety and Classification Division
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Date: 30 January 2025
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link to page 1
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ATTACHMENT A.
SCHEDULE OF DOCUMENTS FOI 25-176
Doc Date of
Description of document
Num
Decision on
Provision
No. document
of
access
of FOI Act
Pages
1.
1 1/09/2024
Ministerial Submission - MS24-001726: 2024
2
Partial access
s22
Spring variation bid – Social media Age Limit2
granted
s34(3)
s47C
Attachment B: Letter to the Prime Minister
1
2.
2 3/09/2024
Ministerial Submission - MS24-001787:
3
Partial access
s22
Social Media Age Limits Legislation – Seeking
granted
s34(3)
Prime Ministerial Exemption for Impact
s47C
Analysis
Attachment A: Letter to the Prime Minister
2
seeking Impact Analysis Exemption
3.
2 6/09/2024
Meeting Brief – MB24-000682: Online Harms
2
Access granted
s22
Ministers Meeting3
to relevant
information
Attachment A: October OHMM Agenda and list
2
of attendees
Attachment B: Annotated agenda
10
Attachment E: Paper on social media age limits
1
Attachment F: Summary: Potential portfolio
2
discussion points
4.
0 2/10/2024
Ministerial Submission MS24-001884: Release
3
Access refused
34(1)(c)
of Exposure Draft – Social Media Age Limits
in full
Legislation – Design Principles Cabinet
Submission4
5.
0 4/10/2024
Ministerial Submission – MS24-001906: Release 3
Access refused
34(1)(c)
of Coordination Final – Social Media Age Limits
in full
Legislation – Design Principles Cabinet
Submission5
6.
0 9/10/2024
Meeting Brief – MB24-000669: New South
2
Partial access
s22
Wales (NSW) and South Australia (SA) Social
granted
Media Summit – 10 & 11 October 2024
Attachment A: Biographical Details
5
Attachment B: Talking Points
5
Attachment C: Programs for NSW and South
4
s47F
Australia Summits
7.
0 8/10/2024
Senate Estimates Brief SB24-000236: Age
8
Partial access
s22
Assurance and Social Media Age Limits
granted
Attachment A: Q&As
2
Attachment B: Summary of Meta’s
2
announcement of Instagram Teen Accounts
2 Attachment A to Document 1 is a document submitted to Cabinet and has been explicitly excluded by the applicant from the
scope of the request.
3 Attachments C and D to Document 3 are outside the scope of the request as they do not relate to Social Media age limitations.
4 Attachment to Document 4 is a document submitted to Cabinet and has been explicitly excluded by the applicant from the scope
of the request.
5 Attachments to Document 5 are outside the scope of the request as they either do not relate to Social Media age limitations or
are documents submitted to Cabinet and have been explicitly excluded by the applicant from the scope of the request.
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Doc Date of
Description of document
Num
Decision on
Provision
No. document
of
access
of FOI Act
Pages
Attachment C: Prime Minister’s Media Release
8
s4
and Op-Eds
Available at the following links:
https://www.pm.gov.au/media/albanese-
government-set-introduce-minimum-age-
social-media-access
https://www.pm.gov.au/media/social-media-
platforms-have-social-responsibility-courier-
mail
https://www.pm.gov.au/media/we-want-
children-have-their-childhood-herald-sun
8.
2 9/10/2024
Ministerial Submission MS24-002038: Release
2
Partial access
s22
of Exposure Draft – Social Media Minimum Age
granted
Bill
Attachment A: Exposure Draft of the Online
22
s42 in full
Safety Amendment (Social Media Minimum
Age) Bill 2024
Attachment B: Draft Online Safety (Age-
6
s42 in full
Restricted Social Media Platforms) Rules 2024
9.
3 1/10/2024
Meeting/Event Brief MB24-000758: Social
4
Partial access
s22
media minimum age legislation – targeted
granted
s47F
consultation6
Attachment A: Biographical Details (A1) and
8
Talking Points (A2) – Hon Robert French AC
Attachment B: Talking Points – eSafety
5
Commissioner
Attachment C: Biographical Details (C1) and
10
Talking Points (C2) – Mental health
organisations
Attachment F: Legislative design principles
1
Attachment G: Summary of state and territory
1
responses to PM letter
Attachment H: Open letter from academics,
2
experts and civil society organisations
10.
0 6/11/2024
Question Time Brief QB24-000078: Social
16
Access granted
Media Age Limited
in full
11.
0 7/11/2024
Email: RE Briefing note - Social Media Minimum 1
Access granted
s22
Age Law - Design Principles7
to relevant
information
6 Attachments D and E to Document 9 excluded from the scope of the request on the basis that they are duplicates of Attachments
A and B to Document 8
7 Attachment to Document 11 excluded from the scope of the request on the basis that it is a duplicate of Attachment F to
Document 9
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