FOI Reference: LEX 11996
File Reference: 25/4437
March 2025
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 two documents relevant to your request. After careful consideration, I have
decided to refuse access to the documents because the documents are exempt in ful under the
FOI Act.
Request
On 23 January 2025, you sought access to:
- diplomatic notes exchanged between Australia and Tuvalu on their completion of
"respective requirements" and the entry into force of the treaty? (This is said in Article 8
paragraph 1, of the treaty)
- "ful powers" for both parties to sign the treaty. My question is whether there were any "full
powers" from Australia or Tuvalu for signature of this treaty, and if so, is it possible to
provide copy of these "full powers"?
On 17 February 2025, the department requested an additional 14-calendar day extension of time
under section 15AA of the FOI Act. On the same day, you agreed to the extension until
10 March 2025.
The department subsequently notified the Office of the Australian Information
Commissioner (OAIC) of the extension of time in accordance with our reporting obligations.
R G Casey Building John McEwen Cres Barton 0221 T
+61 2
DFAT.GOV.AU
6261 1111
@DFAT
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 to protect the flow
of confidential information between Australia and other governments (FOI Guidelines, paragraph
5.39).
Damage to international relations also occurs where the disclosure of documents 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 (FOI Guidelines, paragraph 5.42).
The documents in scope of your request include two third party notes i.e. formal diplomatic
communications between Australia and Tuvalu. I have had regard to the nature of the
information in the documents, the circumstances in which the information was communicated,
the nature and extent of the relationship between Australia and Tuvalu and the damage to
international relations which could reasonably occur from disclosure. Based on these
considerations, I am satisfied that the expectation of damage to international relations is
reasonable in this case (FOI Guidelines, paragraph 5.40).
The documents within the scope of your request are therefore exempt under section 33(a)(iii) of
the FOI Act.
Material obtained 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.
Information is communicated in confidence by or on behalf of another government if it was
communicated under an express or implied understanding that the communication would be kept
confidential (FOI Guidelines, paragraph 5.46).
Confidentiality need not be formal. A general understanding that communications of a particular
nature wil be treated in confidence wil suffice. The understanding of confidentiality may be
inferred from the circumstances in which the communications occurred, including the relationship
between the parties and the nature of the information communicated (FOI Guidelines, paragraph
5.48).
I consider that the information in the third-party note from Tuvalu was communicated in
confidence and disclosure of the document would disclose information provided in confidence by
the Tuvalu government.
I am therefore satisfied that the relevant document is exempt under section 33(b) 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 FOI and Privacy Law Section
by email xxx@xxxx.xxx.xx.
Yours sincerely
Clemency Oliphant
Assistant Secretary
Pacific Development Branch
REVIEW AND COMPLAINT OPTIONS
Further information on applying for an IC
review is available on Office of the
If you consider the department made the
Australian Information Commissioners
wrong decision, please request a review.
(OAIC) website.i
If you are dissatisfied with the way your
Third party review rights
request was processed, please make a
complaint.
Third parties who were consulted by the
department are entitled to seek an
REVIEW
internal review of the department’s
How to seek a review of this decision
decision to grant access to a document.
Internal review by the department
Further information about third party
review rights is available on OAICs
You may apply for internal review of the
website.ii
decision (section 54 of the FOI Act). The
internal review application must be made
You may also apply for an external review
within 30 calendar days from the day you
by the IC (section 54L of the FOI Act). To
receive this notice. Where possible, please
do this, you must make your application
attach reasons why you believe review of
within 30 calendar days from the day you
the decision is necessary.
receive this notice.
A new decision maker, who was not
COMPLAINT
involved in the initial decision, will review
How to make a complaint about process
your request, and make a new decision
within 30 calendar days.
Complaint to the department
Any request for internal review should be
If you wish to make a complaint about
directed via email to xxx@xxxx.xxx.xx or
how your FOI request was processed by
addressed to:
the department, we welcome you sending
an email with the details of your
Freedom of Information Section
complaint to the department in the first
Department of Foreign Affairs and
instance via xxx@xxxx.xxx.xx.
Trade
R G Casey Building
Complaint to the IC
John McEwen Crescent
Barton ACT 0221
You may also make a complaint to the IC
about the Departments actions in relation
External review by the Information
to this decision (section 70 of the FOI Act).
Commissioner (IC)
Further information about how to make a
You may apply to the Australian
complaint is available on OAICs website.iii
Information Commissioner to review this
decision (section 54L of the FOI Act). To
do this, you must contact the IC within 60
calendar days from the day you receive
this notice.
