Ref: LEX-76741
Oliver Smith
Via emai
l: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Oliver Smith
Decision on your Freedom of Information request
I refer to your request, dated 28 March 2024 and received by the Department of Climate Change,
Energy, the Environment and Water (
department) on the same date, for access under the
Freedom of Information Act 1982 (Cth) (
FOI Act) to the following documents:
‘Under the FOI Act, I seek all documents prepared between 1 June, 2023 and 31
December, 2023, by the Migratory Species Section of the International Environment Reef
and Oceans Division, and the Biodiversity Conservation Division, that were provided to
the Nature Positive Regulation Division or the Offshore Energy portfolio in relation to
the PORTLAND DECLARATION AREA AND SOUTHERN OCEAN DECLARATION AREA.’
My decision
The department holds two documents (totalling 14 pages) that relate to your request.
I have decided to grant you
part access to two documents with some of the content removed.
Certain parts of the documents that you have requested are exempt under the FOI Act as they
contain deliberative matter relating to advice, recommendations and consultations that have
taken place for the purposes of the deliberative processes involved in the functions of the
department, the disclosure of which would be contrary to the public interest (section 47C
conditional exemption).
On 4 April 2024, the department acknowledged your request and advised you that we would not
include personal details about our junior staff. You did not contact the department again about
this. Any junior staff details have therefore been deleted in accordance with section 22(1) of the
FOI Act. Please note that information not relevant to your request has also been deleted in
accordance with section 22(1).
On this occasion, I have decided to not impose a charge for processing this FOI request.
Please see the schedule at
Attachment A to this letter for a detailed list of the documents and
the reasons for my decision.
How we will send your documents to you
The documents are
attached.
T +61 2 6274 1111
John Gorton Building
GPO Box 3090
dcceew.gov.au
F +61 2 9094 2221
King Edward Terrace
Canberra ACT 2601
ABN 63 573 932 849
Parkes ACT 2600
You can ask for a review of my decision
If you wish to seek an internal review, you must apply to the department within
30 days after
the day you are notified of this decision. An application for internal review must be made in
writing by post to the FOI Officer or emai
l to xxx@xxxxxx.xxx.xx.
Alternatively, you may apply directly to the Office of the Australian Information Commissioner
(
OAIC) to review my decision. An application for review by the Information Commissioner must
be made in writing within
60 days after the day you are notified of this decision. You can also
make a complaint to the Information Commissioner if you have concerns about how the
department handled your request.
You can find information about requesting a review, making a complaint, and other information
about FOI on the OAIC websi
te www.oaic.gov.au or phone the OAIC on 1300 363 992.
Further assistance
If you have any questions, please emai
l xxx@xxxxxx.xxx.xx.
Yours sincerely
Allison Kenna
Principal Legal Officer
Information Law Team
Legal Division
26 April 2024
2
Attachment A
LIST OF DOCUMENTS FOR RELEASE
LEX-76741
Doc
Date
Description
Decision
Exemption
Comments
No.
1. 23
Email re Southern Offshore Declaration Area
Release in part
s 47C
Deliberative information
November
2023
s 22(1)(a) - Junior staff details deleted (out of
scope)
2.
Advice: Southern Ocean Region Preliminary
Release in part
S 47C
Deliberative information
Declaration Area for Offshore Renewables
Attachment to document 1
T +61 2 6274 1111
John Gorton Building
GPO Box 3090
dcceew.gov.au
F +61 2 9094 2221
King Edward Terrace
Canberra ACT 2601
ABN 63 573 932 849
Parkes ACT 2600
REASONS FOR DECISION
What you requested
‘Under the FOI Act, I seek all documents prepared between 1 June, 2023 and 31
December, 2023, by the Migratory Species Section of the International Environment Reef
and Oceans Division, and the Biodiversity Conservation Division, that were provided to
the Nature Positive Regulation Division or the Offshore Energy portfolio in relation to
the PORTLAND DECLARATION AREA AND SOUTHERN OCEAN DECLARATION AREA.’
What I took into account
In reaching my decision, I took into account:
• your original request dated 28 March 2024;
• the documents that fall within the scope of your request;
• information about:
o the nature of the documents; and
o the department’s operating environment and functions;
• guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (
Guidelines);
• the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that certain parts of documents that you requested are exempt under the FOI Act.
My findings of fact and reasons for deciding that an exemption applies to those documents are
discussed below.
Section 47C of the FOI Act – Deliberative processes
I have applied the conditional exemption in section 47C to the documents.
Section 47C of the FOI Act provides:
‘A document is conditionally 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:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.’
Paragraph 6.58 of the Guidelines relevantly provides:
A 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 bearing
upon one’s course of action. In short, deliberative processes involved in the
functions of an agency are thinking processes – the processes of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a
course of action.
Parts of the document contain 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 the department.
I am satisfied that the relevant material is not ‘operational information’ or ‘purely factual
material’, which are excluded from the definition of ‘deliberative matter’ under section 47C(2) of
the FOI Act.
On this basis, I am satisfied that the above mentioned document contains deliberative matter for
the purposes of section 47C(1) of the FOI Act. I am further satisfied that the document is
conditionally exempt under section 47C(1) of the FOI Act.
Public interest considerations
Section 11A(5) of the FOI Act provides:
'The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.'
When weighing up the public interest for and against disclosure under section 11A(5) of the FOI
Act, I have taken into account relevant factors in favour of disclosure. In particular, I have
considered the extent to which disclosure would:
• promote the objects of the FOI Act;
• inform debate on a matter of public importance, being the Government’s decision-
making process in relation to the declaration of an area in the Southern Ocean off
Victoria for offshore renewable energy.
I have also considered the relevant factors weighing against disclosure, indicating that access
would be contrary to the public interest. In particular, I have considered the extent to which
disclosure could reasonably be expected to undermine the department’s ability to administer
the
Environment Protection and Biodiversity Conservation Act 1999 (Cth) (
EPBC Act). In my view,
disclosure of the deliberative matter in the document would have this effect, and therefore
prejudice the attainment of the objects of the EPBC Act.
Based on the above factors, I have decided that in this instance, the disclosure of the documents
would, on balance, be contrary to the public interest.
I have not taken into account any of the irrelevant factors set out in section 11B(4) of the FOI Act
in making this decision.
Conclusion
In summary, I am satisfied that the parts of the document, as set out in the Schedule, are
conditionally exempt under section 47C(1) of the FOI Act. Furthermore, I have decided that on
balance it would be contrary to the public interest to release this information. Accordingly, I
have decided not to release the documents in full to you.
As identified in the Schedule, I have deleted the exempt information in the document/s and
released the remaining material in accordance with section 22(1) of the FOI Act. Information not
relevant to your request, including junior staff details, has also been deleted under section 22(1)
of the FOI Act.