FOI23 417 Decision Letter with Attachment A C.pdf

Our ref:
FOI23/417; CM23/16592

11 September 2024

Thomas
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Thomas
Freedom of Information Request FOI23/417 – 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 9 August 2023, you requested access to:
Any email correspondence from January 2017 to July 2017 between the Attorney-General's
Department and the Indigenous Affairs Group within PM&C (or whatever the relevant predecessor
to the NIAA was called at that time), which attaches the Uluru Statement from the Heart (or draft
versions of it).

In particular I would like to request access to any versions of the Uluru Statement that are longer
than one page, or which contain the extracts of the Uluru Statement from the Heart set out in pages
16-32 of the Referendum Council Final Report, available online at the fol owing address:

https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Counc
il_Final_Report.pdf
On 4 September 2023, the department wrote to you seeking your agreement to a 14 day extension under
s 15AA of the FOI Act. You declined the extension request.
On 13 September 2023, the department wrote to the Office of the Australian Information Commissioner
(OAIC) seeking a 30 day extension under s 15AC of the FOI Act.
On 9 October 2023, the OAIC agreed to a 30 day extension.
On 1 December 2023, the department wrote to you seeking to clarify the scope of your request.
On 24 May 2024, you wrote to the department advising the fol owing:
‘The scope of the request is for email correspondence from January 2017 to July 2017 between the
Attorney-General's Department and the Indigenous Affairs Group within PM&C (or whatever the
relevant predecessor to the NIAA was called at that time), and which attached the Uluru Statement
from the Heart or draft versions of it.

I specified that as part of that request I would like to request access to any versions of the Uluru
Statement that are longer than one page, or which contained extracts of the Uluru Statement from
the Heart set out in pages 16-32 of the Referendum Council Final Report. This would mean that if an
email within scope attached a version of the Uluru Statement from the Heart, then that copy of the
Statement should be released (as wel  as the covering email).’
A decision in relation to your request was due on 11 October 2023.
My decision
I am an officer authorised under s 23(1) of the FOI Act to make decisions in relation to freedom of
information requests made to the department.
I have identified 26 documents that fal  within the scope of your request. I did this by making inquiries of
staff likely to be able to identify relevant documents and arranging for comprehensive searches of relevant
departmental electronic and hard copy holdings.
In making my decision regarding access to the relevant documents, I have taken the following material into
account:
•  the terms of your request,
•  the content of the documents identified as within scope of your request,
•  the provisions of the FOI Act, and
•  the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act (the
Guidelines).
I have decided to:
•  Grant access in full to 3 documents
•  Grant access to 14 documents in part with deletion of material which:
o  may be regarded as irrelevant to your request under s 22(1) of the FOI Act; or
o  is exempt pursuant to s 47C(1) of the FOI Act.
•  Refuse access in full to 9 documents on the basis that the material they contain is variously:
o  regarded as irrelevant to your request under s 22(1) of the FOI Act; or
o  exempt pursuant to ss 47C(1) and 34(1)(d) of the FOI Act.
Additional information
I note the Government’s position that the Uluru Statement from the Heart is one page, signed by the
delegates at the National Convention in 2017. The authors of the Uluru Statement from the Heart have
confirmed this. The additional material set out on pages 16-32 of the Referendum Council’s Final Report is
background and extracts drawn from the regional dialogues.
Your review rights under the FOI Act are set out at Attachment A to this letter.
The schedule of documents at Attachment B sets out brief information about each document within the
scope of your request and my decision in relation to access to each of those documents.
The statement of reasons at Attachment C sets out the reasons for my decision to refuse access to certain
material to which you have requested access.
The documents to which I have decided to grant full or partial access under the FOI Act are at
Attachment D.

Attorney-General's Department Freedom of Information Request FOI23/417 Decision letter
Page 2 of 10

Questions about this decision
If you wish to discuss this decision, the FOI case officer for this matter is Claire, who can be reached on
(02) 6141 6666 or by email to xxx@xx.xxx.xx.
Yours sincerely

David Lewis PSM
General Counsel (Constitutional)
Office of Constitutional Law

Attachments
Attachment A:
Review rights
Attachment B:    Schedule of documents
Attachment C:    Statement of reasons
Attachment D:    Documents

Attorney-General's Department Freedom of Information Request FOI23/417 Decision letter
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Attachment A – Your review rights
If you disagree with my decision, you may ask for an Information Commissioner review.
Information Commissioner review
Information Commissioner review requests must be submitted within 60 days of receiving this letter. Your
request should include your contact details, a copy of my decision, and the reasons why you disagree with
my decision. You can apply in one of the fol owing ways:
Online: OAIC Web Form
Email:   xxxxx@xxxx.xxx.xx
Mail:   Director of FOI Dispute Resolution, GPO Box 5288, Sydney NSW 2001.
More information about Information Commissioner review is available at:
https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-
information-reviews/information-commissioner-review.
FOI Complaints
If you are concerned about how we handled your FOI request, please let us know what we could have done
better, as we may be able to rectify the situation. If you are not satisfied with our response, you can make a
complaint to the Information Commissioner. Your complaint must be in writing, and can be lodged in one
of the following ways:

Online: OAIC Web Form
Email:   xxxxx@xxxx.xxx.xx
Mail:   Director of FOI Dispute Resolution, GPO Box 5288, Sydney NSW 2001.

More information about Freedom of information complaints is available at:
https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-
information-complaints.
Attorney-General's Department Freedom of Information Request FOI23/417 Decision letter
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Attachment B - Schedule of documents - Freedom of Information Request FOI23/417
Doc
Date
No.
Description
Access decision
Exemption/s applied
no.
pgs
1
29 May 2017
2
Email from the Department of the Prime
Grant access in part  Section 22(1): Irrelevant material
Minister and Cabinet (PMC) to the Attorney-
General’s Department (AGD)
2
29 May 2017
11
Draft Question Time Brief – Indigenous –
Grant access in part  Section 22(1): Irrelevant material
Constitutional Recognition
3
8 June 2017
4
Email from PMC to AGD
Grant access in part  Section 22(1): Irrelevant material
Section 47C(1): Public interest conditional exemption -
Deliberative processes
4
19 June 2017
5
Document
Refuse access
Section 34(1)(d): Cabinet documents
5
19 June 2017
1
Uluru statement from the heart
Grant access in full
N/A
6
19 June 2017
5
Document
Refuse access
Section 34(1)(d): Cabinet documents
7
9 June 2017
1
Email from PMC to AGD
Grant access in part  Section 22(1): Irrelevant material
Section 47C(1): Public interest conditional exemption -
Deliberative processes
8
19 June 2017
3
Document
Refuse access
Section 34(1)(d): Cabinet documents
9
9 June 2017
5
Document
Refuse access
Section 34(1)(d): Cabinet documents
10
9 June 2017
2
Talking Points
Grant access in part  Section 22(1): Irrelevant material
11
14 June 2017
1
Email from PMC to AGD
Grant access in part  Section 22(1): Irrelevant material
Section 47C(1): Public interest conditional exemption -
Deliberative processes
12
14 June 2017
6
Document
Refuse access
Section 34(1)(d): Cabinet documents
13
14 June 2017
2
Talking Points
Grant access in part  Section 22(1): Irrelevant material
14
19 June 2017
4
Document
Refuse access
Section 34(1)(d): Cabinet documents
15
14 June 2017
3
Email from PMC to AGD
Grant access in part  Section 22(1): Irrelevant material
Section 47C(1): Public interest conditional exemption -
Deliberative processes
16
14 June 2017
1
Uluru statement from the heart
Grant access in full
N/A
17
14 June 2017
6
Document
Refuse access
Section 34(1)(d): Cabinet documents
18
14 June 2017
3
Talking Points
Grant access in part  Section 22(1): Irrelevant material

Attorney-General's Department Freedom of Information Request FOI23/417 Decision letter
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Doc
Date
No.
Description
Access decision
Exemption/s applied
no.
pgs
19
15 June 2017
1
Email from PMC to AGD
Grant access in part  Section 22(1): Irrelevant material
Section 47C(1): Public interest conditional exemption -
Deliberative processes
20
19 June 2017
4
Document
Refuse access
Section 34(1)(d): Cabinet documents
21
15 June 2017
5
Document
Refuse access
Section 34(1)(d): Cabinet documents
22
15 June 2017
2
Talking Points
Grant access in part  Section 22(1): Irrelevant material
23
17 July 2017
2
Email from PMC to AGD
Grant access in part  Section 22(1): Irrelevant material
24
17 July 2017
9
Indigenous Constitutional Recognition
Grant access in part  Section 22(1): Irrelevant material
Whole-of-Government Talking Points
25
18 July 2017
2
Email from PMC to AGD
Grant access in part  Section 22(1): Irrelevant material
26
30 June 2017
183
Final Report of the Referendum Council
Grant access in full
N/A

Attorney-General's Department Freedom of Information Request FOI23/417 Decision letter
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Attachment C - Statement of reasons - FOI23/417
This document, when read in conjunction with the schedule of documents at Attachment B,
provides information about the reasons I have decided not to disclose certain material to you in
response to your request for documents under the Freedom of Information Act 1982 (FOI Act).
Section 22: Access to edited copies with exempt or irrelevant matter deleted
Section 22 of the FOI Act provides that if an agency decides to give access to a document that would
disclose information that would reasonably be regarded as irrelevant to the request, and it is
possible for the agency to prepare a copy (an edited copy) of the document, modified by deletions,
the agency must prepare the edited copy and give the applicant access to it.
The department has considered that some of the material is regarded as irrelevant to your request
under s 22 of the FOI Act, as the material doesn’t relate to the Uluru Statement from the Heart. In
addition, I note that:
‘The department's practice is to not disclose personal information of staff of the department and
other government authorities, where that information is not publicly known or routinely
disclosed (e.g. names of junior officers and contact information). The names of senior officers wil
generally be disclosed. In addition, duplicates and incomplete email chains, internal
administrative email addresses and metadata within the scope of the FOI request wil be
excluded.’
As there is no record available to me to suggest that you disagreed with this approach, I have
decided to regard the above categories of information as irrelevant to your request and have
deleted this material under s 22 of the FOI Act. I have also deleted other material in the documents
that is irrelevant to the terms of your request.
Having regard to the particular content of the documents for your request, I decided that material
within departmental briefs and talking points relating to the Voice referendum and not the Uluru
Statement from the Heart, are also irrelevant to your request. Given this, I considered it likely that
you would also agree that this information is irrelevant to your request and have omitted this
material under s 22 of the FOI Act.
Exemptions
An agency or minister is not required to give access to a document or part of a document that is
exempt from disclosure under Division 2 of Part IV of the FOI Act. Documents for your request which
are exempt under Division 2 of Part IV relate to Cabinet documents (s 34).
These exemptions are not subject to an overriding public interest test. Accordingly, where a
document meets the criteria to establish a particular exemption, it is exempt and the decision-maker
is not required to weigh competing public interests to determine if the document should be
released.
Brief information about each of the exemptions applied when making a decision about disclosure of
each of the documents to which you have requested access is set out below. Additional information
Attorney-General's Department Freedom of Information Request FOI23/417 Decision letter
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about each of these exemptions can be obtained from the Guidelines available at:
https://www.oaic.gov.au/freedom-of-information/foi-guidelines/part-5-exemptions.
Section 34: Cabinet documents
I have decided to apply s 34(1)(d) to the documents for your request. My reasons for applying this
exemption is set out below.
Section 34(1)(d)
Section 34(1) of the FOI Act states that a document is an exempt document if:
(a)  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
(ii)
it was brought into existence for the dominant purpose of submission for
consideration by the Cabinet, or
(b)  it is an official record of the Cabinet, or
(c)  it was brought into existence for the dominant purpose of briefing a Minister on a
document to which paragraph (a) applies, or
(d)  it is a draft of a document to which paragraph (a), (b) or (c) applies.
I have had regard to the particular contents of the documents for your request. I have also received
advice from officers with responsibility for matters to which the documents relate. Based on these
enquiries, I am satisfied the material in the relevant documents for your request, as set out at
Attachment B, were proposed to be submitted to, or brought into existence for the dominant
purpose of being considered by the Cabinet.
I have formed this view based on advice from the Department of the Prime Minister and Cabinet. I
am also satisfied that the existence of the deliberation or decision has not subsequently been
disclosed by the department or the ministers in attendance since the matters were discussed.
Accordingly, I am satisfied that this material is exempt from disclosure under s 34(1)(d) of the
FOI Act.
Public interest conditional exemptions
An agency or minister can refuse access to a document or part of a document that is conditionally
exempt from disclosure under Division 3 of Part IV of the FOI Act. Documents for your request which
are conditionally exempt under Division 3 relate to deliberative processes (s 47C).
Brief information about each of the conditional exemptions applied when making a decision about
disclosure of each of the documents to which you have requested access is set out below. Additional
information about each of these conditional exemptions can be obtained from the Guidelines
available at: https://www.oaic.gov.au/freedom-of-information/foi-guidelines/part-6-conditional-
exemptions.
Where a document is assessed as conditionally exempt, it is only exempt from disclosure if
disclosure would, on balance, be contrary to the public interest. The public interest test is weighted
in favour of giving access to documents so that the public interest in disclosure remains at the
forefront of decision making.
Attorney-General's Department Freedom of Information Request FOI23/417 Decision letter
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A single public interest test applies to each of the conditional exemptions. This public interest test
includes certain factors that must be taken into account where relevant, and other factors which
must not be taken into account. My reasoning in regard to the public interest are set out under the
heading ‘Section 11A(5): Public interest test’ below.
Section 47C: Public interest conditional exemption - deliberative processes

Section 47C of the FOI Act provides that a document is conditional y exempt if its disclosure under
this Act 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.
In applying this exemption, paragraph 6.55 of the Guidelines provide that:
The deliberative processes exemption differs from other conditional exemptions in that no
type of harm is required to result from disclosure. The only consideration is whether the
document includes content of a specific type, namely deliberative matter.
I am satisfied that the relevant material is not purely factual and is deliberative matter within the
meaning of s 47C(1), being in the nature of and relating to an opinion, advice or recommendations.
The deliberative matter described above was created for the purpose of, and in connection with,
advice between the department and the Department of the Prime Minister and Cabinet on the
Cabinet process.
Accordingly, I am satisfied that this material is conditionally exempt under s 47C(1) of the FOI Act. I
have turned my mind to whether disclosure of the information would be contrary to the public
interest and have included my reasoning in this regard below under the heading ‘Section 11A(5):
Public interest test’.
Section 11A(5): Public interest test
Access to a conditional y exempt document must general y be given unless doing so would be
contrary to the public interest. The Guidelines issued by the OAIC provide at paragraph 6.224 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 wil  often depend on a balancing of
interests,
•  necessarily broad and non-specific, and
•  related to matters of common concern or relevance to all members of the public, or a
substantial section of the public.
In deciding whether to disclose conditionally exempt material, I have considered the factors
favouring access set out in s 11B(3) of the FOI Act. I have not taken into account the irrelevant
factors listed under s 11B(4) of the FOI Act.
Of the factors favouring disclosure, I consider that release of the conditionally exempt material
identified for your request would promote the objects of the FOI Act, by:
•  informing the community of the government’s operations,
Attorney-General's Department Freedom of Information Request FOI23/417 Decision letter
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•  revealing the reason for a government decision, and
•  enhancing the scrutiny of government decision making.
The FOI Act does not list any specific factors weighing against disclosure. However, I have considered
the non-exhaustive list of factors against disclosure in the Guidelines as well as the particular
circumstances relevant to the conditionally exempt material.
I consider the release of the conditionally exempt material could, as the case may be, reasonably be
expected to prejudice:
•  the department’s ability to obtain similar information in the future, and
•  the management functions of the department.
On balance, I consider the factors against disclosure outweigh the factors favouring access and that
providing access to the conditionally exempt material identified for your request would be contrary
to the public interest.
Attorney-General's Department Freedom of Information Request FOI23/417 Decision letter
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