DEFENCE FOI 695/24/25 STATEMENT OF REASONS UNDER THE FREEDOM OF
INFORMATION ACT 1982 – INTERNAL REVIEW DECISION
1.
I refer to the email of 1 April 2025 in which J
Paul (the applicant) sought an internal
review, under section 54 of the
Freedom of Information Act 1982 (Cth) (FOI Act), of the
decision dated 26 March 2025 on their request for access to documents under the FOI Act.
Background
2.
On 27 February 2025, the applicant submitted a request to the Department of Defence
(Defence) for access to the following documents under the 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.
3.
On 13 March 2025, with the applicant’s written agreement, Defence extended the
period for dealing with the request to 28 April 2025 in accordance with section 15AA
[extension of time with agreement] of the FOI Act.
4.
On 26 March 2025, the original decision was provided to the applicant.
Original decision
5.
The original decision identified four documents falling within the scope of the request.
The decision refused access to the documents in full on the grounds that they were considered
exempt under section 33 [documents affecting national security, defence or international
relations] of the FOI Act.
Contentions
6.
In their application for internal review, the applicant wrote:
I note the decision maker’s use of section 33 exemption, which I suggest does not
apply in this instance as the subject pertains to retired equipment and hence no longer
Defending Australia and its National Interests
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pertaining to defence or security. This could not be construed as causing damage to
security or defence. In terms of possible damage to international relations, it is
unlikely that any further damage could arise from release of these documents (i.e. the
damage was done in the decision to bury the helicopters).
If the material does include information pertaining to current or future capability
(such as the replacement Blackhawk helicopters), it would be more appropriate to
redact those parts of the documents rather than refuse release.
Reviewing officer
7.
I am authorised to make this internal review decision under arrangements approved by
the Secretary of Defence under section 23 of the FOI Act.
Scope of internal review
8.
Taking into account the applicant’s contentions, the exemption of the documents under
section 33 of the FOI Act forms the subject of this internal review.
Internal review decision
9.
After careful consideration, I have decided to vary the original decision. I have
decided to exempt four documents in full under section 33(a)(ii) and (iii) [documents
affecting national security, defence or international relations] and in part under section 42
[documents subject to legal professional privilege] of the FOI Act.
Material taken into account
10.
In arriving at my decision, I had regard to:
a.
the scope of the applicant’s request and subsequent internal review
application;
b.
the original decision;
c.
the content of the documents subject to internal review;
d.
relevant provisions in the FOI Act;
e.
the Guidelines issued by the Australian Information Commissioner under
section 93A of the FOI Act (the Guidelines); and
f.
advice from Army Aviation Command and Capability Acquisition and
Sustainment Group.
Findings and reasons
Section 33(a) – Documents affecting national security, defence or international relations
11.
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
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12.
In regard to the interpretation of the terms ‘would, or could reasonably be expected to’
and ‘damage’, the Guidelines commencing at paragraph 5.16 provide:
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.
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.
13.
The phrase ‘defence of the Commonwealth’ has been accepted in previous
Administrative Appeals Tribunal (AAT) decisions to include:
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.
14.
The documents consist of briefs that consider the implications of ceasing the use of the
MRH 90 fleet, including cessation options and potential responses from an operational,
commercial and workforce perspective.
15.
Upon review of the documents, I have identified that they contain material which if
released would, or could reasonably be expected to, cause damage to the defence of the
Commonwealth.
16.
The documents detail Defence’s disposal process. Releasing this information could
hinder current and future disposal activities, damaging relationships with Defence Industry
partners as these processes would need to be changed if adversaries of Defence became aware
how they operate.
17.
Further, release of these processes could impact Defence’s ability to meet the
commitment’s outlined in the 2024 National Defence Strategy to reform processes to plan,
acquire , deliver, sustain and dispose of capabilities faster to be more responsive to changing
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priorities, if the disposal processes needed to be changed as a result of the release of these
documents.
18.
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.
19.
The documents contain material relating to Defence’s international partners, including
discussions with international partners on disposal activities.
20.
I consider that the disclosure of this information would, or could reasonably be
expected to, cause damage to the international relations of the Commonwealth. Disclosure of
these discussions could reasonably be expected to impact military diplomacy efforts if other
governments became aware that these communications could be released under the FOI Act;
hindering Defence and the Commonwealth’s ability to engage meaningfully with other
governments, or international organisations, on a variety of issues, if these other the FOI Act,
21.
Further, if confidential or sensitive communications between Australia and its
counterparts were released under the FOI Act I consider this could reasonably be expected to
impede working relations between Australia and the governments of other nations, or
international organisations, and the flow of confidential information between them.
22.
Accordingly, I am satisfied that the documents are exempt under sections 33(a)(ii) and
33(a)(iii) of the FOI Act.
Section 42 – Documents subject to legal professional privilege
23.
Section 42 of the FOI Act states:
(1) 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.
(2) A document is not an exempt document because of subsection (1) if the person
entitled to claim legal professional privilege in relation to the production of the
document in legal proceedings waives that claim.
24.
Paragraph 5.149 of the Guidelines provides that, at common law, determining whether
a communication is privileged requires a consideration of:
•
whether there is a legal adviser-client relationship
•
whether the communication was for the dominant purpose of giving or
receiving legal advice, or for use in connection with actual or anticipated
litigation
•
whether the advice given is independent
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•
whether the advice given is confidential
25.
The information contained in the documents reveals communications between the
relevant business area and qualified lawyers within Defence acting in their capacity as
independent professional legal advisers.
26.
Paragraph 5.158 of the Guidelines provides that in-house lawyers may perform a range
of functions within an agency. The mere fact that advice is given by a lawyer is not sufficient
to establish a legal adviser-client relationship. However, in this instance, based on the content
of the documents, I am satisfied that a legal adviser–client relationship exists.
27.
Further, I am satisfied that the information was prepared for the dominant purpose of
giving or receiving legal advice.
28.
I am satisfied based on the content of the documents, their classifications and the
limited number of people that had access to them that they were provided in confidence.
29.
I also note that no evidence exists to suggest that the legal advice has been made
publicly available or that privilege has been waived.
30.
Based on the above, I am satisfied the information is exempt under section 42 of the
FOI Act.
Belinda Digitally signed
by Belinda
HAYWAR HAYWARD
Date: 2025.05.08
D
12:46:03 +10'00'
Belinda Hayward
Special Adviser – Freedom of Information Review
Governance Group
Defending Australia and its National Interests
Document Outline
