Australian Government
Attorney-General's Department
Our ref:
FOl23/372; CM23/15565
20 October 2023
To:CR
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Applicant
Freedom of Information Request FOl23/372 - Decision letter
The purpose of this letter is to give you a decision about your request for access to documents under the
Freedom of Information Act 1982 (the FOi Act) which you submitted to the Attorney-General's Department
(the department).
Your request
On 21 July 2023, you requested access to:
I refer to the previous FOi request made by Alex Pentland:
https://www.righttoknow.org.au/request/referendum_ on_ the_ voice_ to_parli
and request access to the following documents:
(a.) briefing notes, legal advice and file notes held by either the Attorney-General and/or his office
and/or the Attorney General's Department, as well as any correspondence between the Attorney
General and/or his office and the Attorney General's Department, in relation to the proposed
wording for the Voice referendum;
(b) briefing notes, legal advice and file notes held by either the Attorney-General and/or his office
and/or the Attorney General's Department, as well as any correspondence between the Attorney
General and/or his office and the Solicitor-General and/or any correspondence between the
Attorney-General's Department and the Solicitor-General in relation to the proposed wording for
the Voice referendum;
(c) briefing notes, legal advice and file notes held by either the Attorney-General and/or his office
and/or the Australian Government Solicitor, as well as any correspondence between the Attorney
General and/or his office and/or any correspondence between the Attorney-General's Department
and the Australian Government Solicitor in relation to the proposed wording for the Voice
referendum
I understand that a preliminary search of the documents relevant to the previous request resulted in
a large volume of 900 documents. As such, I am willing to enter into a consultation process to
reduce the scope of the request. If possible, I would appreciate it if you could identify which request
returned such a high result, and provide any insights or outliers that you may have identified.
On 18 August 2023, the department acknowledged your request.
On 18 August 2023, the department wrote to you, advising you that a practical refusal reason exists under
section 24AA of the FOi Act, and requesting that you reduce the scope of your FOi request.
3-5 National Circuit, Barton ACT 2600 Telephone (02) 6141 6666 www.ag.gov.au ABN 92 661 124 436

On 19 August 2023, you replied to the department, requesting a breakdown of the estimated time required
for each step in the process and an explanation of the challenges faced with handling the request. You also
asked what part of your request included a significant number of documents.
On 31 August 2023, the department wrote to you seeking your agreement to extend the consultation
period by 7 days. In response to your email of 19 August 2023, the department advised that a significant
proportion of the documents captured by the scope of your request were captured under the 'any
correspondence' category of your request. The department suggested revising the scope of your request
to:
Finalised submissions or briefs prepared for the Attorney-General in relation to the proposed
wording for the Voice referendum.
On 1 September 2023, you wrote to the department and agreed to the department's request to extend the
consultation period by 7 days but expressed dissatisfaction with the time taken to progress the FOi request
to date. You also asked the department to confirm whether the largest volume of documents within the
scope of your request related to internal documents of the Attorney-General's Office, correspondence
between the Attorney-General and Solicitor-General, or correspondence between the Attorney-General
and the Australian Government Solicitor.
On 1 September 2023, the department wrote to you and advised that the Attorney-General and his Office
are a separate entity to the Attorney-General's Department and the department will not hold documents
internal to the Office of the Attorney-General or correspondence between the Attorney-General and other
recipients, unless the department has been included in that correspondence.
On 1 September 2023, you wrote to the department and advised that while you were considering revising
the scope of your request you had not yet formally made a decision on your scope revision. You provided a
proposed scope revision and sought the department's feedback on whether this scope would remove the
reason to practically refuse your request.
On 7 September 2023, you wrote to the department expressing dissatisfaction at not receiving a response
to your correspondence of 1 September 2023. You also confirmed you were formally revising the scope of
your request to:
a) Finalised briefing notes, legal advice and file notes held by the Attorney General's Department, in
relation to the proposed wording for the Voice referendum.
b) Correspondence between the Attorney General's Department and the Attorney-General and/or
the Attorney-General's Office, in relation to the proposed wording for the Voice referendum.
c) Correspondence between the Attorney General's Department and the Australian Government
Solicitor, in relation to the proposed wording for the Voice referendum.
On 8 September 2023, the department acknowledged your revised scope of the above terms and sought
your agreement for a lSAA extension of time for 30 days.
On 9 September 2023 you declined the extension of time.
On 12 September the department advised you an application had been made to the Office of the Australian
Information Commissioner (OAIC) for an extension of time under lSAC.
Attorney-General's Department Freedom of Information Request FOI23/372 Decision letter
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On 16 October 2023, the OAIC granted the department an extension of time to the 20 October 2023 under
section lSAC of the FOi Act.
My decision
I am an officer authorised under section 23(1) of the FOi Act to make decisions in relation to freedom of
information requests made to the department.
As advised in the department's correspondence of 18 August 2023, it was previously decided that a
practical refusal reason exists in relation to your FOi request within the meaning in section 24AA of the FOi
Act (copy at
Attachment A).
I am writing now to advise that, despite the revision of the scope of your FOi request, a practical refusal
reason still exists.
In coming to this decision, I have taken into consideration the departmental resources that would be
required to identify, locate and collate all documents within the scope of your request, and decide whether
to grant, refuse or defer access to each of those documents would divert the resources of the department
from its other operations.
The department has identified over 1750 documents potentially within the scope of your request. The
actual number of documents identified will be substantially higher as a large proportion of these
documents were emails containing multiple attachments. The work of processing each of these documents
includes:
• the identification and removal of duplicates,
• the identification and removal of irrelevant material,
• copying and converting documents to the PDF format for assessment and processing,
• consultations with relevant third parties and other agencies,
• the redaction of exempt material as determined by internal and external consultations, and
• preparation of a decision package for consideration including a schedule of documents and
statement of reasons.
This work would take in excess of 86 hours by departmental officers. This is a conservative estimate based
on a sample of 100 documents.
I have also had regard to the staffing resources within the Office of Constitutional Law to assess the
material to determine the application of the relevant exemptions and consider a decision on whether to
grant, refuse or defer access, and the impact this work will have on the other work of the team.
The Office of Constitutional Law is a small specialist team. The assessment of the number of documents
identified would amount to a substantial and unreasonable diversion of the resources of this team.
Accordingly, I have decided to refuse access to the documents you requested pursuant to section 24(1)(b)
of the FOi Act (copy at
Attachment A).
Review rights and questions
Your review rights under the FOi Act are set out at
Attachment B to this letter.
Attorney-General's Department Freedom of Information Request FOI23/372 Decision letter
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If you wish to discuss this decision, the FOi case officer for this matter is Joanna, who can be reached on
(02) 6141 6666 or by email to xxx@xx.xxx.xx.
Yours sincerely
David Lewis
General Counsel (Constitutional)
Office of Constitutional Law
Attachments
Attachment A:
Sections 24AA and 24 of the FOi Act
Attachment B:
Review rights
Attorney-General's Department Freedom of Information Request FOI23/372 Decision letter
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Attachment A
Section 24AA of the FOi Act: When does a practical refusal reason exist?
(1)
For the purposes of section 24,
a practical refusal reason exists in relation to
a request for
a document if either (or both) of the following applies:
(a) the work involved in processing
the request:
(i) in the case of
an agency--would substantially and unreasonably divert the resources of
the agency from its other operations; or
(ii) in the case of a Minister--would substantially and unreasonably interfere with the
performance of the Minister's functions;
(b)
the request does not satisfy the requirement
in paragraph 15(2)(b) (identification
of documents).
(2)
Subject
to subsection (3), but without limiting the matters to which
the agency or Minister may
have regard, in deciding whether
a practical refusal reason exists,
the agency or Minister must
have regard to the resources that would have to be used for the following:
(a) identifying, locating or collating
the documents within the filing system of
the agency, or the
office of the Minister;
(b) deciding whether to grant, refuse or defer access to
a document to which
the request relates, or to grant access to
an edited copy of such
a document, including
resources that would have to be used for:
(i) examining
the document; or
(ii) consulting with any person or body in relation to
the request;
(c) making a copy, or
an edited copy, of
the document;
(d) notifying any interim or final decision on
the request.
(3)
In deciding whether
a practical refusal reason exists,
an agency or Minister must not have regard
to:
(a) any reasons that
the applicant gives
for requesting access; or
(b)
the agency's or Minister's belief as to what
the applicant's reasons are
for requesting access;
or
(c) any maximum amount, specified in the regulations, payable as a charge for processing
a request of that kind.
Section 24 of the FOi Act: Power to refuse request--diversion of resources etc.
(1)
If
an agency or Minister is satisfied, when dealing with
a request for
a document, that
a practical
refusal reason exists in relation to
the request (see section 24AA),
the agency or Minister:
(a) must undertake
a request consultation process (see section 24AB); and
(b) if, after
the request consultation process, the agency or Minister is satisfied that
the practical
refusal reason still
exists--the agency or Minister may refuse to give access to
the document in accordance with
the request.
(2)
For the purposes of this section,
the agency or Minister may treat 2 or
more requests as a
single request if
the agency or Minister is satisfied that:
(a)
the requests relate to the
same document or documents; or
(b)
the requests relate
to documents, the subject matter of which is substantially the same.
Attorney-General's Department Freedom of Information Request FOI23/372 Decision letter
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Australian Government
Attorney-General's Department
Attachment B - FOi Review rights
If you are dissatisfied with the decision of the Attorney-General's Department (the department), you may
apply for internal review or Information Commissioner review of the decision.
The department encourages applicants to consider seeking internal review as a first step as it may provide
a more rapid resolution of your concerns.
Internal review
Under section 54 of the
Freedom of Information Act 1982 (FOi Act), applications for internal review must be
made in writing within 30 days of the date of the decision letter, and be lodged in one of the following
ways:
email:
xxx@xx.xxx.xx
post: Freedom of Information and Privacy Section
Strategy and Governance Branch
Attorney-General's Department
3-5 National Circuit BARTON ACT 2600
An officer of the department other than the officer who made the original decision will complete the
internal review within 30 days of receipt of your request.
Providing reasons you believe internal review of the decision is necessary will facilitate the completion of
the internal review.
Information Commissioner review
Under section 54L of the FOi Act, you may apply to the Australian Information Commissioner to review my
decision. An application for review by the Information Commissioner must be made in writing within 60
days of the date of the decision letter, and be lodged in one of the following ways:
online:
https://forms.business.gov.au/smartforms/servlet/SmartForm.html?formCode=ICR_lO
email:
xxxxx@xxxx.xxx.xx
post: GPO Box 5218 Sydney NSW 2001
More information about Information Commissioner review is available on the Office of the Australian
Information Commissioner website. Go
to https://www.oaic.gov.au/freedom-of-information/your
freedom-of-information-rights/freedom-of-information-reviews/information-commissioner-review
Attorney-General's Department Freedom of Information Request FOI23/372 Decision letter
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