Ref: LEX-80183
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 and received by the Department of Climate Change, Energy, the
Environment and Water (
department) on 26 May 2025 for access under the
Freedom of
Information Act 1982 (Cth) (
FOI Act) to the following documents:
“Under the Freedom of Information Act, I seek a copy of the incoming government brief
prepared for the Coalition Party during the caretaker period of 2025.”
My decision
The department holds six (6) documents that relate to your request.
I have decided to
refuse access to the documents in scope of your request as they contain:
material subject to legal professional privilege (section 42);
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(1));
information that relates to certain operations of an agency, disclosure of which would, or
could reasonably be expected to have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency (section 47E(d)); and
information the release of which would involve the unreasonable disclosure of personal
information (section 47F).
Please see the Schedule at
Attachment A for a detailed list of the documents and the reasons for
my decision.
Charges
I have decided not to impose a charge for processing your FOI request on this occasion.
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 email
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
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
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
Michelle Croker
Division Head
Portfolio Strategy Division
13 June 2025
2
Attachment A
SCHEDULE OF DOCUMENTS
LEX 80183
Doc Date
Description
Decision
Exemption
Comments
No.
1
May 2025
Incoming Government Brief – Volume 1 –
Exempt in full
s42
Legal Professional Privilege
Minister for Water
s47C(1)
Deliberative processes
s47F
Personal Privacy
2
May 2025
Incoming Government Brief – Volume 2 –
Exempt in full
s47C(1)
Deliberative processes
Minister for Water
s47E(d)
Operations of an agency
s47F
Personal privacy
3
May 2025
Incoming Government Brief – Volume 1 –
Exempt in full
s42
Legal Professional Privilege
Minister for the Environment
s47C(1)
Deliberative processes
s47F
Personal Privacy
4
May 2025
Incoming Government Brief – Volume 2 –
Exempt in full
s47C(1)
Deliberative processes
Minister for the Environment
s47E(d)
Operations of an agency
s47F
Personal privacy
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
Doc Date
Description
Decision
Exemption
Comments
No.
5
May 2025
Incoming Government Brief – Volume 1 –
Exempt in full
s42
Legal Professional Privilege
Minister for Climate Change and Energy
s47C(1)
Deliberative processes
s47F
Personal Privacy
6
May 2025
Incoming Government Brief – Volume 2 –
Exempt in full
s47C(1)
Deliberative processes
Minister for Climate Change and Energy
s47E(d)
Operations of an agency
s47F
Personal privacy
2
REASONS FOR DECISION
What you requested
‘Under the Freedom of Information Act, I seek a copy of the incoming government
brief prepared for the Coalition Party during the caretaker period of 2025.’
What I took into account
In reaching my decision, I took into account:
your original request dated and received on 26 May 2025;
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 documents and parts of documents are exempt under the FOI Act. My
findings of fact and reasons for deciding that an exemption applies to those documents are
outlined below.
Section 42 – Legal Professional Privilege
I have applied the exemption in section 42 to the documents noted in the Schedule at
Attachment A.
Section 42 of the FOI Act provides that:
'(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 grounds of legal professional
privilege.’
Legal professional privilege is not defined in the FOI Act. To determine the application of section
42 of the FOI Act, consideration must be given to the common law concept of legal professional
privilege. At common law, determining whether a communication is privileged requires
consideration of:
whether there is a legal adviser-client relationship;
whether the communication was for the purposes of giving or receiving legal advice, or
for use in connection with actual or anticipated litigation;
whether the advice given is independent; and
link to page 6 link to page 6
whether the advice given is confidential.
Parts of the documents in issue contain draft advice to Ministers regarding current and
proposed portfolio matters. The draft advice was provided by lawyers in the legal division and
cleared by the Chief Counsel. The draft advice was provided by legally qualified solicitors and
was drafted to inform the incoming Minister/s of legal risks, requirements or updates about
various portfolio legal issues in a confidential manner.
For the reasons set out above, I am satisfied that the material in the documents noted in the
Schedule at Attachment A is exempt under section 42 of the FOI Act.
Section 47C – Deliberative processes
I have applied the conditional exemption in section 47C to all of the relevant 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 6.54 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.
The term deliberative matter has been stated as being a shorthand term for opinion, advice,
recommendation(s), consultation and deliberation that is recorded or reflected in a documen
t1.
The documents subject to this request contain draft briefing in the form of summaries, analysis,
advice, suggestions and recommendations on a range of portfolio matters developed by the
department to support and brief an incoming minister/s following the election. These briefings
are for the Minister’s consideration and information and are deliberative in nature often
outlining imminent issues for consideration/decision as well as strategic directions that may be
pursued or relevant risks to be aware of.
I am of the view the documents relevant in this matter are exempt in full under section 47C(1) of
the FOI Act. Section 47C(2)(b) provides that deliberative material
does not include purely
factual material. However, the Guidelines state that 'purely factual material’ does not extend to
factual material that is an integral part of the deliberative content and purpose of a document,
1 Parnell and Attorney Generals Department [2014] AlCmr 71
link to page 7 link to page 7
or, is embedded in or intertwined with the deliberative content such that it is impractical to
excise it.
Furthermore, the Guidelines provide that ‘the purpose of providing access to government
information under the FOI Act may not be served if extensive editing is required that leaves only
a skeleton of the former document that conveys little of its content or substance.’
I acknowledge there is factual material throughout the exempt documents. However, I consider
that the factual material is so interwoven with the deliberative material that it would be both
difficult to extract and would result in such a heavily redacted document that it would be of little
use.
The briefing packages prepared for the Liberal-National Coalition and the subject of your
request, commonly referred to as the “Blue Book(s)” are still in a draft form, however, are also
deliberative in nature as explained above. Had that party been successful in forming
government, further analysis and amendments would have occurred to the briefing packages
before being provided to incoming minister/s for consideration.
On this basis, I am satisfied the documents in scope of this request contain deliberative matter
for the purposes of section 47C(1) of the FOI Act. I am further satisfied that the documents are
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 factors 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 of the documents would promote the objects of
the FOI Act and to an extent assist in informing debate on matters of public importance.
I have also considered the relevant factors weighing against disclosure, indicating that access
would be contrary to the public interest. The important role of Incoming Government Briefing
(
IGBs) has been discussed in several Australian Information Commissioner, Administrative
Appeal Tribunal and court cases in previous years.
The Guidelines note that special treatment should be afforded to the briefing prepared for the
party that does not form government. No part of the briefing prepared for the Liberal-National
Coalition was provided to them and they have not, and will not, have an opportunity to consider
and/or respond to it.
Further, I agree with the premise outlined in the Guidelines that it would be unfair to the party
that did not form government to make public, preliminary departmental analysis and
assessment of policies and election commitments, when that party has not had an opportunity to
adjust, alter or implement those policie
s2.
As outlined above the confidentiality of discussions and briefings provided to new minister/s is
essential in the formation of effective working relationships. With this in mind, it is important
2 Office of the Australian Information Commissioners (OAIC) FOI Guidelines – paragraph 6.259
that the Public Service does not get drawn into political controversy and be called to defend in
the public arena advice drafted for a party that did not form government.
Based on the above factors, I have decided that in this instance, the disclosure of the documents
and parts of the documents I consider contain deliberative material 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.
Section 47E(d) – Certain operations of agencies
I have applied the conditional exemption in section 47E(d) to parts of the documents.
Section 47E(d) of the FOI Act relevantly provides:
A document is conditionally exempt if its disclosure under this Act would, or could
reasonably be expected to, do any of the following:
...
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
The Guidelines provide, in relation to section 47E(d) of the FOI Act, that:
The predicted effect must bear on the agency’s ‘proper and efficient’ operations, that is,
the agency is undertaking its expected activities in an expected manner. Where disclosure
of the documents reveals unlawful activities or inefficiencies, this element of the
conditional exemption will not be met and the conditional exemption will not apply.
Part of the documents contain direct contact details and email addresses that were included in
the documents and would have only been provided to the Minister/s and their offices to allow
them to directly contact the department via set numbers and positional email addresses. These
are not widely distributed numbers and emails even within the department.
I am satisfied that the material in the documents relates to the department’s functions in
providing direct support to the Minister/s and their staff. I consider that the disclosure of this
information would or could reasonably be expected to have a substantial adverse effect on the
proper and efficient conduct of the department in providing that support. If these contact details
were made available to the public, they could be used to contact the department directly outside
the already established communications channels (both phone and email) including the public
facing email addresses published on the department’s website.
Circumventing established contact pathways would reduce the department’s ability to provide
support to both the Minister and staff as well as resulting in reduced ability to respond in a
timely and appropriate manner to public enquiries. On this basis, I have decided that parts of the
information included in the documents is conditionally exempt under section 47E(d) 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 considered relevant factors in favour of disclosure. I have considered the extent to
which disclosure would promote the objects of the FOI Act.
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 prejudice the department’s ability to perform its
functions of providing executive and IT support to both ministers and their respective offices by
disclosing contact details specific to them.
Based on the above factors, I have decided that in this instance, the disclosure of parts 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.
Section 47F - Personal privacy
I have applied the conditional exemption in section 47F(1) to documents as set out in the
Schedule at Attachment A.
Section 47F of the FOI Act relevantly provides:
‘(1) A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a
deceased person).
(2) In determining whether the disclosure of the document would involve the
unreasonable disclosure of personal information, an agency or Minister must have
regard to the following matters:
(a) the extent to which the information is well known;
(b) whether the person to whom the information relates is 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 or Minister considers relevant.’
Personal Information
The term ‘personal information’ is defined as follows:
‘. .information or an opinion about an identified individual, or an individual who is
reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.’
Paragraph 6.125 of the Guidelines provides:
‘Personal information can include a person’s name, address, telephone number, date of
birth, medical records, bank account details, taxation information and signature.’
The documents contain personal information related to a number of identifiable individuals.
This information includes direct mobile numbers, email addresses, phone numbers and
photographs of individuals.
Whether disclosure is ‘unreasonable’
In addition to the factors specified in section 47F(2) of the FOI Act, paragraph 6.133 of the
Guidelines provides:
‘The personal privacy exemption is designed to prevent the unreasonable invasion of
third parties’ privacy. The test of ‘unreasonableness’ implies a need to balance the public
interest in disclosure of government-held information and the private interest in the
privacy of individuals.’
I am satisfied that the disclosure of the personal information would be unreasonable for the
following reasons:
it relates to aspects of an individual's personal affairs;
you do not have the consent from this individual for the release of their personal
information;
the information is private and not available in full or in part from publicly accessible
sources;
the identity of the individual concerned is readily apparent or could be easily
ascertained.
On this basis, I have decided that the personal information included in the documents referred to
in the Schedule is conditionally exempt under section 47F(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;
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:
prejudice an individual’s right to privacy,
adversely affect or harm the interests of an individual or group of individuals,
specifically, and
possibly result in the misuse of the personal information noting FOI is disclosure to
the world at large.
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.
