DEFENCE FOI 695/24/25
STATEMENT OF REASONS UNDER THE FREEDOM OF INFORMATION ACT 1982
1.
I refer to the request by J Paul (the applicant), dated and received on 27 February 2025
by the Department of Defence (Defence), for access to the following documents under
the
Freedom of Information Act 1982 (Cth) (FOI Act):
“I request under FOI copies of advice to government on the disposal of MRH-90
Helicopters, including considerations:
-for offering these, or nor offering these airframes, to Ukraine (as aid or sale), -
offering these airframes in whole or as parts to New Zealand or one of the other ten
operators of the similar NH-90 airframes, either by sale or gifting, -the rationale for
burying these airframes.
By advice to government, I seek copies of briefs, ministerial submission, emails, files
note of phone calls, to any of the Ministers in the defence portfolio and their offices.
The search for records can be limited to the calendar year 2023.
I also seek a copy of any correspondence from the Ukrainian government and
Ambassador to the Australian government regarding the MRH-90 Helicopters.”
Background
2.
On 13 March 2025, with the applicant’s written agreement Defence extended the
period for dealing with the request from 29 March 2025 until 28 April 2025 in
accordance with section 15AA [extension of time with agreement] of the FOI Act.
FOI decision maker
3.
I am the authorised officer pursuant to section 23 of the FOI Act to make a decision on
this FOI request.
Documents identified
4.
I have identified four documents as falling within the scope of the request.
Decision
5.
I have decided to refuse access to four documents on the grounds that the documents
are considered exempt under section 33 [documents affecting national security,
defence or international relations] of the FOI Act.
Material taken into account
6.
In making my decision, I have had regard to:
a. the terms of the request;
b. the content of the identified documents in issue;
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c. relevant provisions of the FOI Act;
d. the Guidelines published by the Office of the Australian Information
Commissioner under section 93A of the FOI Act (the Guidelines); and
e. advice from Army Aviation Command and Capability Acquisition and
Sustainment Group.
REASONS FOR DECISION
Section 22 – Access to edited copies with exempt or irrelevant matter deleted
7.
Where a decision maker denies access to a document, section 22(1) of the FOI Act
requires that they consider releasing the document with exempt matter deleted, if
possible.
8.
Paragraph 3.98 of the Guidelines provides that:
…an agency or minister should take a common sense approach in considering
whether the number of deletions would be so many that the remaining document
would be of little or no value to the applicant.
9.
In the case of documents being refused in full, I have decided to refuse access as they
would be meaningless and of little or no value once the exempt material is removed.
Section 33(a) – Documents affecting national security, defence or international relations
10.
Section 33(a) of the FOI Act states:
A document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to:
…
(ii) the defence of the Commonwealth
(iii) the international relations of the Commonwealth
11.
In regard to the terms ‘would, or could reasonably be expected to’ and ‘damage’, the
Guidelines provide:
5.16 The test requires the decision maker to assess the likelihood of the predicted
or forecast event, effect or damage occurring after disclosure of a document.
5.17 The use of the word ‘could’ in this qualification is less stringent than
‘would’, and requires analysis of the reasonable expectation rather than certainty
of an event, effect or damage occurring. It may be a reasonable expectation that
an effect has occurred, is presently occurring, or could occur in the future.
…
5.32 The meaning of ‘damage’ has three aspects:
i. that of safety, protection or defence from something that is regarded as a
danger. The AAT has given financial difficulty, attack, theft and political or
military takeover as examples.
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ii. the means that may be employed either to bring about or to protect against
danger of that sort. Examples of those means are espionage, theft,
infiltration and sabotage.
iii. the organisations or personnel providing safety or protection from the
relevant danger are the focus of the third aspect.
12.
In regard to ‘defence of the Commonwealth’, the Guidelines, at paragraph 5.36, refer
to previous Administrative Appeals Tribunal (AAT) decisions which provide that the
term includes:
a. meeting Australia’s international obligations;
b. ensuring the proper conduct of international defence relations;
c. deterring and preventing foreign incursions into Australian territory; and
d. protecting the Defence Force from hindrance or activities which would
prejudice its effectiveness.
13.
I have identified material in the documents which, upon release, would cause, or could
reasonably be expected to cause, damage to the defence of the Commonwealth. The
documents detail disposal processes for a Defence capability. Making that information
publically known, could assist non-aligned allied states to take steps, or devote
resources, to countering the capability. This could lead to the exploit of potential
weaknesses and cause damage to the defence of the Commonwealth.
14.
Additionally, I have determined that disclosure is likely to damage the ability of the
Commonwealth to meet its objectives, with regards to the 2024 National Defence
Strategy, thereby causing damage to the Defence of the Commonwealth.
15.
In regard to ‘international relations’, the Guidelines provide at paragraph 5.39:
The phrase ‘international relations’ has been interpreted as meaning 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. The exemption is not confined to relations
at the formal diplomatic or ministerial level. It also covers relations between
Australian Government agencies and agencies of other countries.
16.
I find that disclosure of the documents exempted under section 33(a)(iii) of the FOI
Act would cause, or could reasonably be expected to cause, damage to the
international relations of the Commonwealth. The documents could reasonably be
expected to adversely impede working relations between Australia and the
governments of other nations, or international organisations, and the flow of
confidential information between them. I consider that disclosure would, or could
reasonably be expected to impact the Commonwealth’s broader military diplomacy
efforts; hindering its ability to engage meaningfully with other governments, or
international organisations, on a variety of issues, including but not limited to, the
disposal of an Australian capability.
17.
Further, I have considered Defence’s mission, being to secure and defend Australia
and its national interests, promote security and stability, and support the Australian
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community as directed by the government. I consider that releasing the documents
would, or could be expected to, cause harm through the use of disclosed information
by hostile actors to reduce community cohesion, or disrupt international ties.
18.
Accordingly, I am satisfied that the documents are exempt under sections 33(a)(ii) and
33(a)(iii) of the FOI Act.
Joanne
Digitally signed by
Joanne GROVES
GROVES
Date: 2025.03.26 09:12:50
+11'00'
Mrs Joanne Groves
Accredited Decision Maker
Army Headquarters
Department of Defence
