FOI24 446 Letter and Attachments A C.pdf

Our ref:
FOI24/446; CM24/26826

17 November 2025

Tom Dang
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Dang
Freedom of Information Request FOI24/446 – Statement of reasons
The purpose of this letter is to give you a statement of reasons about your request for access to documents
under the Freedom of Information Act 1982 (the FOI Act) which you submitted to the Department of the
Prime Minister and Cabinet (PM&C) and which was subsequently transferred to the Attorney-General's
Department (the department) under section 16(1)(b) of the FOI Act.

Your request
On 5 September 2024, you requested access to:
Under the FOI law, I would like to know who arranged the compensation agreement for Brittany
Higgins and requested a full written agreement. If it is the confidentiality clause, please provide
detailed reasons.
On 13 September 2024, the department confirmed the transfer of your request, suggested a revised scope
and sought your agreement to a 30-day extension of time under section 15AA of the FOI Act. The same day,
you agreed to the following suggested revised scope:
1.  Documents detailing who arranged the compensation agreement for Brittany Higgins, and
2.  A copy of the written compensation agreement for Brittany Higgins.
On 19 September 2024, the department sent a follow-up email to seek your support for a 30-day extension
of time under s 15AA of the FOI Act. The same day, you agreed to the department’s extension of time
request.
Between 27 September 2024 and 17 October 2024, the department wrote to request withdrawal of your
request or further revise the scope your request on the basis that the documents you were seeking were
publicly available in the provided webpage links. The department did not receive a response to these
emails.

On 4 November 2024, the department submitted a request for a s 15AB extension of time to the Office of
the Australian Information Commissioner (OAIC). On 12 November 2024, the OAIC declined the extension
request.

On 5 December 2024, the department submitted a request for a s 15AC extension of time to the OAIC. On
12 December 2024, the OAIC declined the extension request.

A decision in relation to your request was due on 4 November 2024. The decision is deemed pursuant to
subsection 15AC(3).
Paragraph 3.161 of the FOI Guidelines issued by the Office of the Australian Information Commissioner
(OAIC) provides that where an access refusal decision is deemed to have been made before a substantive
decision is made, the agency or minister continues to have an obligation to provide a statement of reasons
on the FOI request. This obligation to provide a statement of reasons on the FOI request continues until any
IC review of the deemed decision is finalised.
My detailed statement of reasons in response to your FOI request is set out at Attachment C.
My statement of reasons
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. To identify documents for your request, inquiries were
made of staff likely to be able to identify relevant documents and comprehensive searches of relevant
departmental electronic and hard copy holdings were undertaken.
Four (4) documents have been identified that fall within the scope of your request.
I note that the Department of Finance (Comcover) was responsible for managing Ms Higgins' claims.
Consequently, searches for documents falling within the scope of your request were limited to such
holdings as they relate to the operations of this department and to the Attorney-General’s functions under
the Legal Services Directions 2017. In making my decision regarding access to the relevant documents, I
would 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
•  the views of another agency with an interest in the matter, and
•  the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act (the
Guidelines).
I have determined that, had it been made prior to the processing period expiring, my decision would have
been to:
•  Grant access to 2 documents in part with deletion of material which may be regarded as irrelevant
to your request under s 22(1) of the FOI Act; and is exempt pursuant to s 42(1), s 45(1), s 47C(1),
47E(d), s 47F(1) and s 47G(1)(a) of the FOI Act.
•  Refuse access in full to 2 documents on the basis that the material they contain is variously exempt
pursuant to s 42(1) and 47C(1) of the FOI Act.
As previously advised to you (see above), I note that Document 4 has been and continues to be available on
the Federal Court website. My decision would have been to grant access to Document 4 in like form.
Additional information

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 what my decision would have been in relation to access to each of those
documents.
The statement of reasons at Attachment C sets out the detailed reasons for why I would have refused
access to certain material to which you have requested access.
Attorney-General's Department Freedom of Information Request FOI24/446 Statement of reasons
Page 2 of 12

A copy of Document 1 is provided at Attachment D. As previously advised to you, a copy of Document 4
can be accessed via the following link: Exhibit-59-Deed-of-Settlement-and-Release_Redacted.pdf.
Questions
If you wish to discuss this statement of reasons, please contact the department’s FOI team who can be
reached by email to xxx@xx.xxx.xx.
Yours sincerely

Ishani Das
A/g Assistant Secretary
Office of Legal Services Coordination

Attachments
Attachment A:
Review rights
Attachment B:    Schedule of documents
Attachment C:    Detailed statement of reasons
Attachment D:    Document 1

Attorney-General's Department Freedom of Information Request FOI24/446 Statement of reasons
Page 3 of 12

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 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 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 FOI24/446 Statement of reasons
Page 4 of 12

Attachment B - Schedule of documents - Freedom of Information Request FOI24/446
Doc
Date
No.
Description
Access decision
Exemption/s applied
no.
pgs
1
7 December 2022
3
Email from the Attorney-General’s
Grant access in part
Section 22(1): Irrelevant material
Department to the Attorney-General’s
Section 42(1): Documents subject to legal professional privilege
Office
Section 47C(1): Public interest conditional exemption -
Deliberative processes
Section 47E(d): Public interest conditional exemption - Certain
operations of agencies
Section 45(1): Documents containing material obtained in
confidence

2
7 December 2022
7
Attachment to Document 1
Refuse access
Section 42(1): Documents subject to legal professional privilege
Section 47C(1): Public interest conditional exemption -
Deliberative processes

3
12 December 2022  6
Ministerial Submission
Refuse access
Section 42(1): Documents subject to legal professional privilege
Section 47C(1): Public interest conditional exemption
Deliberative processes

4
13 December 2022  62
Deed of settlement and release
Grant access in part  Section 45(1): Documents containing material obtained in

confidence
Section 47F(1): Public interest conditional exemption - Personal
Privacy
Section 47G(1)(a): Public interest conditional exemption -
Business information

Attorney-General's Department Freedom of Information Request FOI24/446 Statement of reasons
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Attachment C – Detailed statement of reasons – FOI24/446
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.
In deciding to delete material which would reasonably be regarded as irrelevant to a request, the
FOI Guidelines issued by the Office of the Australian Information Commissioner (OAIC) (the
Guidelines) provide at paragraph 3.95 that:
It is important for agencies to keep in mind that the implicit purpose of s 22 is to facilitate
access to information promptly and at the lowest reasonable cost through the deletion of
material that can readily be deleted, and that an applicant has either agreed or is likely to
agree that the material is irrelevant
I note that when the department confirmed the transfer of your request by email on 13 September
2024 you were advised that the following information would be regarded as irrelevant to your
request:
•  personal information employees of the department or other government authorities
•  duplicate documents, and
•  incomplete email chains within the scope of the FOI request.
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 section 22 of the FOI Act. I have also decided to delete other material
that clearly does not fall within the scope of your request under section 22 of the FOI Act as well.
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. The relevant exemptions in
Division 2 of Part IV which apply to documents for your request are:
•  documents subject to legal professional privilege (section 42)
•  documents containing material obtained in confidence (section 45)
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.
Attorney-General's Department Freedom of Information Request FOI24/446 Statement of reasons
Page 6 of 12

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
about each of these exemptions can be obtained from the OAIC FOI Guidelines available at:
https://www.oaic.gov.au/freedom-of-information/foi-guidelines/part-5-exemptions.
Section 42: Documents subject to Legal Professional Privilege
Section 42(1) of the FOI Act provides that a document is an exempt document if it is of such a nature
that it would be privileged from production in legal proceedings on the ground of legal professional
privilege.
I am satisfied that, with respect to the relevant material:
•  a legal adviser-client relationship exists,
•  the advice was provided independently,
•  the communication was for the purpose of giving or receiving legal advice or for use in
connection with actual or anticipated litigation, and
•  the advice was provided on a confidential basis.
I am also satisfied that the legal professional privilege in relation to the material has not been, and
should not be waived. Accordingly, I am satisfied that the relevant material is exempt from
disclosure under section 42(1) of the FOI Act.
Section 45: Documents containing material obtained in confidence

Section 45(1) of the FOI Act provides that a document is an exempt document if its disclosure under
this Act would found an action by a person (other than an agency or the Commonwealth) for breach
of confidence.
The Guidelines provide at paragraph 5.155 that this exemption:
… is available where the person who provided the confidential information would be able to
bring an action under the general law for breach of confidence to prevent disclosure, or to
seek compensation for loss or damage arising from disclosure.
I note that paragraph 5.159 of the Guidelines further provides that:
To found an action for breach of confidence (which means s 45 would apply), the following five
criteria must be satisfied in relation to the information:
•  it must be specifically identified
•  it must have the necessary quality of confidentiality
•  it must have been communicated and received on the basis of a mutual understanding
of confidence
•  it must have been disclosed or threatened to be disclosed, without authority
•  unauthorised disclosure of the information has or will cause detriment.
The relevant information (as identified in the Schedule) relates to material that has been provided to
the Commonwealth on a confidential basis in relation to a particular claim. This information has also,
on information available to me, not otherwise been revealed publicly. I consider that disclosure of
the relevant information would found an action for breach of confidence. This is because the
information:
Attorney-General's Department Freedom of Information Request FOI24/446 Statement of reasons
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•  has been specifically identified as being confidential by the third party to whom it
relates/officers with expertise for matters to which the documents relate,
•  has the necessary quality of confidentiality as it contains information that is not common
knowledge nor is it in the public domain,
•  was provided to the Attorney General’s Department on the basis of a mutual understanding
of confidence,
•  if it were to be disclosed by the department, it would be without authority.
For the reasons set out above, I am satisfied that each of the five criteria above has been satisfied
and that the relevant information is exempt from disclosure pursuant to section 45(1) 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. Certain documents captured
within the scope of your request are conditionally exempt under Division 3 of Part IV of the FOI Act
as they relate to the following categories:
•  deliberative processes (section 47C)
•  certain operations of agencies (section 47E)
•  personal privacy (section 47F)
•  business (section 47G)
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 OAIC FOI
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.
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 below.
Section 47C: Public interest conditional exemption—deliberative processes

Section 47C of the FOI Act provides that 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
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.
Attorney-General's Department Freedom of Information Request FOI24/446 Statement of reasons
Page 8 of 12

As discussed in the FOI Guidelines the main requirements of his public interest conditional
exemption are that a document:
•  contains or relates to ‘deliberative matter’
•  was prepared for a ‘deliberative purpose’ (s 47C(1))
•  material is not ‘purely factual’ or non-deliberative (s 47C(2)), and
•  it would be ‘contrary to the public interest’ to release the material at the time of the
decision (s 11A(5)).
Material within the documents prepared by the department is not purely factual and is deliberative
matter within the meaning of section 47C(1), being the recommendations and deliberations on
those recommendations in relation to significant legal issues as described under paragraph 3.2 and
4.5 of the Legal Services Directions 2017.
The deliberative documents described above were created for the purpose of supporting the
exercise of the Attorney-General’s power regarding the settlement of a significant Commonwealth
legal claim.
Accordingly, I have decided that the relevant material is conditionally exempt under section 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 header ‘Section
11A(5): Public interest test’.
Section 47E: Public interest conditional exemption—certain operations of agencies

Section 47E of the FOI Act provides that a document is conditionally exempt if its disclosure would,
or could reasonably be expected to, do any of the following:
(a)  prejudice the effectiveness of procedures or methods for the conduct of tests, examinations
or audits by an agency;
(b)  prejudice the attainment of the objects of particular tests, examinations or audits conducted
or to be conducted by an agency;
(c)  have a substantial adverse effect on the management or assessment of personnel by the
Commonwealth or by an agency;
(d)  have a substantial adverse effect on the proper and efficient conduct of the operations of an
agency.
I have decided to apply section 47E(d) to parts of certain documents for your request (as identified
in the Schedule). My reasons for applying this exemption has been set out below.
Section 47E(d)
Material within the documents consists of email addresses and telephone numbers which are used
by the department and another entity for internal and operational reasons. I consider that disclosure
of this information would be likely to result in various (including unreasonable and vexatious)
communications and inquiries being received into the relevant areas of the department and the
other entity, although they are not resourced to manage that work. This could reasonably be
expected to impede the flow of information to the department and another entity.
In addition, material within the documents consists of operational information that could if disclosed
reasonably be expected to prejudice the department’s ability to obtain and deliberate regarding
Attorney-General's Department Freedom of Information Request FOI24/446 Statement of reasons
Page 9 of 12

sensitive information in relation to the management of matters captured under the significant issues
regime of the Legal Services Directions 2017.
Accordingly, I am satisfied that the relevant material is conditionally exempt under section 47E(d) 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 header ‘Section
11A(5): Public interest test’.
Section 47F: Public interest conditional exemption-personal privacy
Section 47F(1) of the FOI Act provides that a document is conditionally exempt if its disclosure would
involve the unreasonable disclosure of personal information about any person (including a deceased
person). For the purposes of the FOI Act, personal information is defined as: information or an
opinion about an identified individual, or an individual who is reasonably identifiable whether the
information or opinion is true or not; and whether the information or opinion is recorded in a
material form or not.
I have identified personal information relating to a private individual in the relevant documents for
your request.
In deciding whether to conditionally exempt the personal information described above, I have had
regard to the following factors set out in section 47F(2) of the FOI Act:
(a)  the extent to which the information is well known;
(b)  whether the people to whom the information relates are known to be (or to have been)
associated with the matters dealt with in the document;
(c)  the availability of the information from publicly accessible sources;
(d)  any other matters that the agency considers relevant.
In my view the relevant personal information is known only to the persons whose information
appears in the documents and departmental officers with responsibility for the matters concerned.
For the reason set out above, I have decided to exempt the personal information of the individual
pursuant to section 47F(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
under the header ‘Section 11A(5): Public interest test’.
Section 47G: Public interest conditional exemption - business
Section 47G(1) of the FOI Act provides that a document is conditionally exempt if its disclosure
would disclose information concerning a person in respect of his or her business or professional
affairs or concerning the business, commercial or financial affairs of an organisation or undertaking,
in a case in which the disclosure of the information:
(a)  would, or could reasonably be expected to, unreasonably affect that person adversely in
respect of his or her lawful business or professional affairs or that organisation or
undertaking in respect of its lawful business, commercial or financial affairs; or
(b)  could reasonably be expected to prejudice the future supply of information to the
Commonwealth or an agency for the purpose of the administration of a law of the
Commonwealth or of a Territory or the administration of matters administered by an agency.

Attorney-General's Department Freedom of Information Request FOI24/446 Statement of reasons
Page 10 of 12

I have decided to apply ss 47G(1)(a) to the documents for your request. My reasons for applying this
exemption has been set out below.
Section 47G(1)(a)
In applying this exemption, the Guidelines provide at paragraph 6.181 that:
The operation of the business information conditional exemption depends on the effect of
disclosure rather than the precise nature of the information itself. Nevertheless, the
information in question must have some relevance to a person in respect of his or her
business or professional affairs or to the business, commercial or financial affairs of an
organisation or undertaking (s 47G(1)(a)).
I am satisfied that the relevant information in document 4 contains information regarding the
financial affairs of an organisation. The information includes the bank details of the organisation.
In determining whether disclosure of this information would or could reasonably be expected to
adversely affect the lawful business, commercial or financial affairs of the organisations concerned, I
have had regard to the following:
(a)  the extent to which the information is well known,
(b)  whether the organisation or undertaking is known to be associated with the matters dealt
with in the documents,
(c)  the availability of the information from publicly accessible sources, and
(d)  any other matters that the agency considers relevant.

In my view, the relevant business information is not well known and I am therefore satisfied that the
disclosure of the information would, or could reasonably be expected to, unreasonably affect the
organisation concerned in respect of their lawful business, commercial or financial affairs.
Accordingly, I am satisfied that this material is conditionally exempt under s 47G(1)(a) 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 conditionally exempt document must generally be given unless doing so would be
contrary to the public interest. The Guidelines issued by the OAIC provide at paragraph 6.5 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 will 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.
Attorney-General's Department Freedom of Information Request FOI24/446 Statement of reasons
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In deciding whether to disclose conditionally exempt material, I have considered the factors
favouring access set out in section 11B(3) of the FOI Act. I have not taken into account the irrelevant
factors listed under section 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, including by revealing the
reason for a government decision.
It is in the public interest for the department to maintain a relationship of mutual trust and
confidence with the Attorney-General. The matters canvassed in submissions in relation to
significant legal claims are necessarily sensitive and pose challenging legal questions. The Minister
would reasonably expect such advice to be provided on a confidential basis. A relationship of trust
and confidence is crucial between the Minister and his or her department. Both parties must be able
to directly and freely engage in a confidential manner when it is appropriate to the subject matter of
the advice. The public interest requires that confidentiality be maintained in order to preserve the
proper administration of the Legal Services Directions 2017 and the workings of government.
It is also in the public interest for Commonwealth agencies and the department to be able to
communicate about sensitive legal matters to ensure they can carry out the functions and
responsibilities imposed upon them by the Parliament through the Attorney-General, particularly in
the context of legal claims where particular rights and interests may be contested.
Additionally, there is a public interest in ensuring that those who pursue legal action against the
Commonwealth have their legal matters kept private, and do not have their lawful business,
commercial or financial affairs subjected to unreasonable public.
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 protection of an individual’s right to privacy,
•  the Attorney-General’s Department’s ability to obtain confidential information,
•  the Attorney-General’s Department’s ability to obtain similar information in the future,
•  the department’s ability to obtain and deliberate regarding sensitive information,
•  the proper and efficient conduct of the operations of the department, and
•  the flow of information to 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 FOI24/446 Statement of reasons
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