Ref: LEX-80210
Oliver Smith
Via emai
l: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Oliver Smith
Decision on your Freedom of Information request
I refer to your revised request dated and received by the Department of Climate Change, Energy,
the Environment and Water (
department) on 28 May 2025 for access under the
Freedom of
Information Act 1982 (Cth) (
FOI Act) to the following documents:
‘Under the FOI Act, I would like to request a list of all Ministerial submissions provided
by the department to the Minister for Climate Change and Energy and the Assistant
Minister for Climate Change and Energy since the May 2025 election. I request it in the
following format:
Date of submission,
Subject
PDR number.’
My decision
The department holds 1 document that relates to your request.
The department did not hold a discrete document that was relevant to your request, however, a
document was created pursuant to section 17(1)(c) of the FOI Act from the department’s
Parliamentary Document Management System.
The document contains a list of ministerial submissions provided by the department to the
Minister for Climate Change and Energy and the Assistant Climate Change between the period of
3 May 2025 to the date of your original request, being 26 May 2025.
I have decided to
refuse access to the document.
I have decided that the document requested is exempt in full under the FOI Act as it contains
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)).
Please see the Schedule at
Attachment A for more specifics about the document and the reasons
for my decision.
Charges
I have decided not to impose a charge for processing your request on this occasion.
F +61 2 9094 2221
John Gorton Building
GPO Box 3090
dcceew.gov.au
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
Dana Sutton
Branch Head
Ministerial Liaison and Governance Branch
Portfolio Strategy Division
13 June 2025
2
Attachment A
SCHEDULE OF DOCUMENTS
LEX 80210
Doc Date
Description
Decision
Exemption
Comments
No.
1
June 2025
Report – ministerial submissions sent to
Exempt in full
s 47C(1)
s 47C(1) – deliberative material
Minister Bowen and Assistant Minister
Wilson since 2025 Federal Election
F +61 2 9094 2221
John Gorton Building
GPO Box 3090
dcceew.gov.au
King Edward Terrace
Canberra ACT 2601
ABN 63 573 932 849
Parkes ACT 2600
REASONS FOR DECISION
What you requested
On 26 May 2025, the Department of Climate Change, Energy, the Environment and Water
(
department) received your request for access under the
Freedom of Information Act 1982 (Cth)
(
FOI Act) to the following documents:
‘Under the FOI Act, I would like to request a list of all Ministerial submissions
provided by the department to the Minister since the May 2025 election. I request it
in the following format:
Date of submission,
Subject
PDR number.’
On 28 May 2025, you revised your request be for the following:
“Under the FOI Act, I would like to request a list of all Ministerial submissions provided
by the department to the
Minister for Climate Change and Energy and the Assistant
Minister for Climate Change and Energy since the May 2025 election. I request it in the
following format:
Date of submission,
Subject
PDR number.”
On 29 May 2025, the department acknowledged your revised request and advised you that we
would not include personal details about our staff. On 2 June 2025, you responded to our
correspondence agreeing to the removal of staff personal details under section 22(1)(a)(ii).
What I took into account
In reaching my decision, I took into account:
• your original request dated 26 May 2025 and your revised request dated 28 May 2025;
• the document that falls 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
link to page 5
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided that parts of the document are exempt under the FOI Act. My findings of fact and
reasons for deciding that an exemption applies to the document are outlined below.
Section 47C – Deliberative processes
I have applied the conditional exemption in section 47C to the relevant document.
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 docum
ent1.
The document subject to this request contains information about ministerial submissions sent to
the Offices of the Minister for Climate and Energy and the Assistant Minister for Climate Change
and Energy shortly after the May 2025 Federal Election. This document details the subject
matter of the ministerial submissions put forward for the Minister and Assistant Minister’s
consideration. If released, this information has the effect of outlining and summarising the
imminent issues for consideration and/or decision by the respective Offices and issues the
department considers to be significant in the weeks following a new Government.
On this basis, I am satisfied the document in scope of this request contains deliberative matter
for the purposes of section 47C(1) of the FOI Act. I am further satisfied that parts of the
document are conditionally exempt under section 47C(1) of the FOI Act.
I note that section 47C(2)(b) of the FOI Act 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
1
Parnell and Attorney Generals Department [2014] AlCmr 71.
link to page 6 link to page 6
document, 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.
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 document would promote the objects of
the FOI Act.
I have also considered relevant factors weighing against disclosure, indicating that access would
be contrary to the public interest. I have attributed relevant weight to the notion that disclosure
of the information contained in the document, even though it was intended for a returned
Minister/Assistant Minister may result in undermining and/or damaging the establishment of a
working relationship between the department and the Minister/Assistant Minister in the early
days of a new government. Where information reveals early or tentative thinking and would
divulge what is considered a priority or risk for a newly returned Minister/Assistant Minister, I
consider release would inhibit the ability for the department to efficiently and effectively
develop a working and trusting relationship with the Minister/Assistant Minister.
The importance of quickly establishing a trusting and effective relationship with
Ministers/Assistant Ministers in a new government has been dealt with through several tribunal
and court cases, most notably in relation to Incoming Government Briefs (
IGB). Whilst I
acknowledge the document in this matter is not an IGB, a document listing submissions
provided to the Minster/Assistant Minster in the first three (3) weeks following the outcome of
an election, serves a similar purpose at this point in time.
Cases such as
Dan Conifer and the Department of the Prime Minister and Cabinet2 and
Dreyfus and
Secretary AG’s Department 3 have held that frank and timely information provided to new
portfolio ministers shortly after an election is crucial to the establishment of solid working
relationships with department/s and the release of information to the world at large through
FOI would undermine the confidentiality required in those relationships.
Disclosure of this information may also interfere with the ability of public servants to provide
frank and fulsome advice in the form of immediate ministerial submissions to incoming or
2
Dan Conifer and Department of the Prime Minister and Cabinet (No. 2) [2017] AICmr117.
3
Dreyfus and Secretary Attorney General’s Department [2015] AATA 962.
returning ministers at a critical juncture in our system of government, at the risk of their advice
being immediately exposed, politicised or taken out of context.
Further, a number of briefs listed in the document are classified, including at the Protected
Cabinet level. Whilst the protected classification of a brief may not be sufficient to attract the
Cabinet exemption under the FOI Act, divulging the subject matter of briefs that are possibly
destined for Cabinet consideration or what matters the government considered to be a current
priority can have the effect of undermining the confidentiality of the Cabinet process.
Based on the above factors, I have decided that in this instance that the disclosure of parts of this
document containing 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.
