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Foifoi Mcgee
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
12 September 2025

Dear Foifoi Mcgee
I refer to your access application made under the Freedom of Information Act 2016 (FOI Act),
received by the ACT Human Rights Commission (the Commission) on 5 September 2025.
In relation to your request for access to:
…documents relating to complaints of discrimination against Palestinians in the ACT since
the 7th October 2023.
I note that this request relates to documents that were received or generated by the
Discrimination, Health Services, Disability and Community Services Commissioner (DHSDCSC) in
the exercise of her functions under the Human Rights Commission Act 2005 (HRC Act) to deal with
complaints.
The FOI Act provides, in Schedule 1.8, that information or documents in the possession of the
Commission that has been obtained or generated in relation to a complaint under section 48 of
the HRC Act is taken to be contrary to the public interest information. That is its disclosure is taken
to be contrary to the public interest.
The ACT Ombudsman’s FOI Guidelines state, in relation to Schedule 1.8 of the FOI Act, that:
“Information obtained or generated by the HRC in relation to a complaint or consideration
is confidential in order to promote the resolution of complaints and protect the privacy of
complainants and other persons. This information is protected by the secrecy provision in s
99 of the HRC Act”1
It is highly important to the integrity of the Commission’s complaints-handling role that people
have assurance about the confidentiality of information they provide in relation to a complaint.
This confidentiality facilitates the conduct of the complaints process by the Commission.

1 ACT Ombudsman, ‘Considering the Public Interest’ (Freedom of Information Guidelines, 24 November 2023), p 34
available at: https://www.legislation.act.gov.au/ni/2023-751/

56 Al ara St Canberra City
T: (02) 6205 2222
E: xxxxx.xxxxxx@xxx.xxx.xx
GPO Box 158, Canberra ACT 2601

W: www.hrc.act.gov.au

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Schedule 1.3(6) of the FOI Act also provides that information the disclosure of which is prohibited
by a secrecy provision of a law is taken to be contrary to the public interest information. Section
99 of the HRC Act is a secrecy provision which prohibits the disclosure of information obtained by
a Commissioner or a member of staff of the Commission in the exercise of their functions.
I note that the ACT Ombudsman’s Freedom of Information Guidelines – Considering the Public
Interest provide that where the relevant secrecy provision provides some discretion in terms of
permitted disclosure it will be outside the scope of an FOI Ombudsman review for the
Ombudsman to determine whether or not an appropriate decision has been made under the
relevant legislation citing Perpetual Corporate Trust and Chief Minister, Treasury and Economic
Development Directorate [2018] ACTOFOI 10 (17 December 2018), [32].2
In relation to your access request, I wil therefore not be disclosing any information that you have
requested as part of your access application. Relevant sections of the FOI Act and the HRC Act are
provided below for your information.
Yours sincerely
Dr Penelope Mathew
President and Human Rights
Commissioner / FOI Information Officer
2 ACT Ombudsman, ‘Considering the Public Interest’ (Freedom of Information Guidelines, 24 November 2023), p 20
available at: https://www.legislation.act.gov.au/ni/2023-751/
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Encl. Relevant sections of the FOI Act (available at: https://www.legislation.act.gov.au/a/2016-
55/)
35  Deciding access—how applications are decided

(1)  The respondent decides an access application for government information by deciding—

(a)  to give access to the information; or

(b)  that the information is not held by the respondent; or

(c)  to refuse to give access to the information because the information is contrary to
the public interest information; or

(d)  to refuse to deal with the application (see section 43); or

(e)  to refuse to confirm or deny that the information is held by the respondent
because—

(i)  the information is contrary to the public interest information; and

(ii)  doing so would, or could reasonably be expected to—

(A)  endanger the life or physical safety of a person; or

(B)  be an unreasonable limitation on a person’s rights under the Human
Rights Act 2004; or

(C)  significantly prejudice an ongoing criminal investigation.

(2)  An access application may be decided in more than 1 way.
1.3  Information disclosure of which is prohibited under law

(1)  Information that is confidential under the Adoption Act 1993, section 60.

(2)  Information that is protected information under the Children and Young People Act 2008,
section 844, other than information that—

(a)  is disclosed to a person to whom it relates; and

(b)  is not sensitive information under that Act, section 845.

(3)  Information that is protected information under the Crimes (Child Sex Offenders) Act
2005, section 133A.
  (4)  Information that is protected information under the Crimes (Restorative Justice) Act
2004, section 64.

(5)  Information that is protected information under the Housing Assistance Act 2007,
section 28 other than information disclosed to a person to whom the information
relates.

(6)  Any other information the disclosure of which is prohibited by a secrecy provision of a
law.

(7)  In this section:
secrecy provision—a provision of a law is a secrecy provision if it—

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(a)  applies to information obtained in the exercise of a function under the law; and

(b)  prohibits people mentioned in the provision from disclosing the information,
whether the prohibition is absolute or subject to stated exceptions or
qualifications.
1.8  Information in possession of human rights commission
Information in the possession of the human rights commission that has been obtained or
generated in relation to—

(a)  a commission-initiated consideration under the Human Rights Commission Act
2005, section 48; or

(b)  a complaint made under the Human Rights Commission Act 2005, part 4.
Encl. Relevant sections of the HRC Act -https://www.legislation.act.gov.au/a/2005-40/
99 Secrecy

(1)  In this section:
court includes a tribunal, authority or person having power to require the production of
documents or the answering of questions.
divulge includes communicate.
person to whom this section applies means a person who—

(a)  is or has been—

(i)  a commissioner; or

(ii)  a person present at conciliation; or

(iii)  a member of the staff of the commission; or

(b)  exercises, or has exercised, a function under this Act.
produce includes al ow access to.
protected information  means information about a person that is disclosed to, or
obtained by, a person to whom this section applies because of the exercise of a function
under this Act by the person or someone else.

(2)  A person to whom this section applies commits an offence if—

(a)  the person—

(i)  makes a record of protected information about someone else; and

(ii)  is reckless about whether the information is protected information about
someone else; or

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(b)  the person—

(i)  does something that divulges protected information about someone else; and

(ii)  is reckless about whether—

(A)  the information is protected information about someone else; and

(B)  doing the thing would result in the information being divulged to
someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(3)  Subsection (2) does not apply if the record is made, or the information is divulged—

(a)  under this Act or another territory law; or

(b)  in relation to the exercise of a function, as a person to whom this section applies,
under this Act or another territory law.

(4)  Subsection (2) does not apply to the divulging of protected information about someone
with the person’s consent.

(5)  A person to whom this section applies need not divulge protected information to a court,
or produce a document containing protected information to a court, unless it is
necessary to do so for this Act or another territory law.

(6)  A person to whom this section applies does not commit an offence under subsection (2)
only because the person discloses information in relation to a discrimination complaint
if—

(a)  the person discloses the information in exercising a function under this Act in
relation to education or research; and

(b)  al  relevant parties consent to the information being disclosed.

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