10 November 2025
Our reference: SOLEX12189
James Smith (Right to Know)
By emai
l: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear James Smith
Freedom of Information Request – Notice of Decision
I refer to your correspondence of 10 October 2025 to the Department of Employment and
Workplace Relations (DEWR) seeking access under the
Freedom of Information Act 1982 (FOI
Act) to the following:
I refer to the Senate Order for the Production of Documents of 27 August 2025 (115)
relating to Whitsundays Taipan helicopter crash Comcare brief and Comcare final
report.
In response to that order the Department provided to the Senate document number
2025-003463, viewable here:
https://www.aph.gov.au/Parliamentary_Business/Tabled_Documents/12356
That tabled document refers to the following documents (a) to (e) below which are
requested to be disclosed pursuant to the FOI Act.
Key Evidence - Exhibits - listed in Statement of Facts and Evidence Index/folder
(a) BQ11323479 - Department of Defence internal report.
(b) BQ4288528 - Department of Defence internal report
(c) BQ9968311 - Department of Defence internal report.
(d) BQ10990830 - Department of Defence internal report.
TE - Hazard of Top Owl
(e) Draft Report provided 9 May 2025.
On 14 October 2025, Comcare advised you that it had accepted transfer of your request from
the DEWR (section 16 of the FOI Act).
Summary of Decision
I am authorised under section 23 of the FOI Act to make decisions in relation to FOI requests.
Comcare holds 5 documents (totalling 162 pages) that relate to the scope of your request.
I have decided to refuse access to the 5 documents.
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I have determined that the documents you have requested are exempt under section 37(1)(a) of
the FOI Act, as their release would, or could reasonably be expected to prejudice the conduct of
an investigation of a breach, or possible breach of the law.
The reasons for my decision, including the relevant sections of the FOI Act, are set out in
Attachment A.
A schedule of documents within the scope of your request can be found at
Attachment B.
Review rights
If you disagree with any part of the FOI decision you can ask for a review. There are two ways
you can do this. You can ask for an internal review from within Comcare, or an external review
by the Office of the Australian Information Commissioner. See
Attachment C for more
information about how to seek an external review.
Further assistance
If you have any questions please email
xxx@xxxxxxx.xxx.xx or phone me on 1300 366 979.
Yours sincerely
Sami
Legal Adviser
Statutory Oversight Team
Legal Group
Comcare
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ATTACHMENT A
REASONS FOR DECISION
INFORMATION CONSIDERED
I have considered the following in making my decision:
• your request of 10 October 2025;
• the documents that fall within the scope of your request;
• consultations with Comcare officers about:
o the nature of the documents;
o Comcare’s operating environment and functions;
• consultation with the Department of Defence;
• guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (the
Guidelines); and
• the FOI Act.
Section 37 – Documents affecting enforcement of law and protection of public safety
I have determined that section 37 of the FOI Act applies to the documents (see schedule below
at
Attachment B).
Relevant Law and Guidelines
Section 37(1)(a) of the FOI Act provides:
(1) A document is an exempt document if its disclosure under this Act would, or could
reasonably be expected to:
(a) prejudice the conduct of an investigation of a breach, or possible breach, of
the law…
Further, paragraphs 5.98, 5.99, 5.103 and 5.104 of the Guidelines state the following:
[5.98]
To be exempt under ss 37(1)(a)…the document in question should have a
connection with the criminal law or the processes of upholding or enforcing civil law or
administering a law. This is not confined to court action or court processes, but extends
to the work of agencies in administering legislative schemes and requirements,
monitoring compliance, and investigating breaches. The exemption does not depend on
the nature of the document or the purpose for which it was brought into existence. A
document will be exempt if its disclosure would or could reasonably be expected to
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have one or more of the consequences set out in the categories listed above at [5.95]
(prejudice the conduct of an investigation of a breach, or possible breach, of the law).
[5.99]
In applying this exemption, a decision maker should examine the circumstances
surrounding the creation of the document and the possible consequences of its release.
The adverse consequences need not result only from disclosure of a particular
document. The decision maker may also consider whether disclosure, in combination
with information already available to the applicant, would result in any of the specified
consequences. [5.103]
The exemption is concerned with the conduct of an investigation. For example, it
would apply where disclosure would forewarn the FOI applicant about the direction of
the investigation, as well as the evidence and resources available to the investigating
body — putting the investigation in jeopardy… [5.104]
Where the investigation is merely suspended or dormant rather than
permanently closed, or where new information may revive an investigation, the
Information Commissioner considers the exemption should apply. However, the
expectation that an investigation may revive should be more than speculative or
theoretical and be supported by evidence.
Whether the expectation of prejudice exists as a result of disclosure
The documents relate to an investigation conducted by Comcare to monitor and enforce
compliance with the
Work Health and Safety Act 2011 (Cth) (
WHS Act) and the
Work Health
and Safety Regulations 2011 (Cth) (
WHS Regulations).
Following consultation with the relevant area within Comcare, I can confirm that the relevant
investigation remains ongoing. The documents comprise responses to statutory notices issued
for the purpose of gathering information and documents that form part of the evidence in an
investigation. Disclosure of this material is likely to reveal Comcare’s lines of inquiry, which
may prejudice any future judicial proceedings. The integrity of investigations procedures and
the admissibility of lawfully obtained evidence are critical to Comcare’s assessment and any
potential action.
As the FOI Act does not impose any restrictions on the subsequent use or dissemination of
released information, I consider that disclosure of the documents would, or could reasonably
be expected to, prejudice the conduct of an investigation into a breach or possible breach of
the law.
In
Chemical Trustee Limited and Ors and Commissioner of Taxation and Chief Executive
Officer, AUSTRAC (Joined Party) [2013] AATA 623, the Tribunal noted the following in relation to
what is a reasonable expectation:
[79]
The phrase “would or could reasonably be expected” means that there must be at
least a real, significant or material possibility of prejudice and a mere “suspicion” or
“remote chance” would not satisfy the test. The test in s 37 calls for an inference based
on reasonable grounds that the information in question could, in whole or in part,
prejudice the conduct of an investigation of a breach of a law relating to taxation, or
disclose lawful methods of proceeding for enforcement or investigations in relation to
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evasions of the law. The test laid down will be satisfied if there is either a likelihood of
this consequence or a possibility of the consequence based on reasonable grounds.
I am satisfied that there is a material possibility, more than a mere suspicion or remote chance,
that disclosure of the documents could prejudice the conduct of the investigation into a breach
or possible breach of the WHS Act and WHS Regulations. Given the ongoing nature of the
investigation, I consider that release of the documents would, or could reasonably be expected
to, prejudice both the investigation and any potential compliance or enforcement action.
Accordingly, I am satisfied that the documents falling within the scope of your request are
exempt under section 37(1)(a) of the FOI Act.
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ATTACHMENT B
SCHEDULE OF DOCUMENTS
James SMITH (Right to Know) – SOLEX12189
Doc Pages
Description
Decision
Exemption
1 1 - 88
Department of Defence Refused access
s 37(1)(a) – Prejudice the conduct of an
internal report
investigation
2 89 - 108
Department of Defence Refused access
s 37(1)(a) – Prejudice the conduct of an
internal report
investigation
3 109 - 125 Department of Defence Refused access s 37(1)(a) – Prejudice the conduct of an
internal report
investigation
4 126 - 128 Department of Defence Refused access s 37(1)(a) – Prejudice the conduct of an
internal report
investigation
5 129 - 162 Draft Report
Refused access
s 37(1)(a) – Prejudice the conduct of an
investigation
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ATTACHMENT C
INFORMATION ON RIGHTS OF REVIEW
FREEDOM OF INFORMATION ACT 1982
Application for review of decision
The
Freedom of Information Act 1982 (FOI Act) gives you the right to apply for a review of this
decision. Under sections 54 and 54L of the FOI Act, you can apply for a review of this decision
by:
(i)
an internal review officer within Comcare; or
(ii) the Information Commissioner.
Internal Review
If you apply for internal review, it will be carried out by a different decision-maker who will make
a fresh decision on your application. An application for review must be:
•
made in writing;
•
made within 30 days of receiving this letter; and
•
sent to the postal or email address shown in this letter.
No particular form is required, but it is desirable to set out in the application the grounds upon
which you consider the decision should be reviewed.
If the internal review officer decides not to grant you access to all of the documents to which
you have requested access, you have the right to seek a review of that decision by the
Information Commissioner. You will be further notified of your rights of review at the time you
are notified of the internal review decision.
Please note that if you apply for an internal review and a decision is not made by an internal
review officer within 30 days of receiving the application, you have the right to seek review by
the Information Commissioner for a review of the original FOI decision on the basis of a
'deemed refusal' decision, An application for Information Commissioner review in this situation
must be made within 60 days of the date when the internal review decision should have been
made (provided an extension of time has not been granted or agreed).
Information Commissioner review
You must apply in writing within 60 days of the receipt of the decision letter and you can lodge
your application in one of the following ways:
Online:
www.oaic.gov.au
Post: GPO Box 5218, Sydney NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
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If a person has sought an internal review and no result of that review is provided within 30 days,
then the applicant may apply to the Information Commissioner to review the matter.
An application form is available on the website a
t www.oaic.gov.au. Your application should
include a copy of the notice of the decision that you are objecting to (if one was provided), and
your contact details. You should also set out why you are objecting to the decision.
Complaints to the Information Commissioner or the Commonwealth Ombudsman
You may complain to either the Commonwealth Ombudsman or the Australian Information
Commissioner about action taken by Comcare in relation to your request. The Ombudsman will
consult with the Australian Information Commissioner before investigating a complaint about
the handling of an FOI request.
Your enquiries to the Ombudsman can be directed to:
Phone:
1300 362 072 (local call charge)
Email:
xxxxxxxxx@xxxxxxxxx.xxx.xx
Your enquiries to the Australian Information Commissioner can be directed to:
Phone:
1300 363 992 (local call charge)
Email:
xxxxxxxxx@xxxx.xxx.xx
No particular form is required to make a complaint to the Ombudsman or the Australian
Information Commissioner. The request should be in writing and should set out the grounds on
which it is considered that the action taken in relation to the request should be investigated and
identify Comcare as the relevant agency.
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