14 January 2026
Mr Glenn Hamiltonshire
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Mr Hamiltonshire
DECISION – ABC FOI 202526-077
I refer to your email sent Monday 24 November 2025 seeking access under the
Freedom
of Information Act (Cth) 1982 (the
FOI Act) to:
For context, I note a comment provided by the ABC to inquiries asked by Media Watch
relating to Andrew Greene's time at the ABC as a defence reporter. The quote provided
on 16 June 2025 (accessible here:
https://www.abc.net.au/mediawatch/episodes/ships/105424232), stated that an
'investigation' was underway.
I seek access to the final document, or documents produced, as a result of this
investigation.
Please exclude duplicates and documents already publicly released, including media
releases, reports, articles and statements to the media.
Please limit emails to the final message in the chain as long as previous messages are
captured.
I agree to having the names and direct contact details of non-senior staff removed,
however I request that redactions do not include non-personally identifying information.
For example, please leave the domain and job titles when redacting email addresses or
signature blocks on emails.
I preemptively agree to requests for third party consultation if necessary, but would
prefer that my information about my identity is not shared with those consulted.’
On 24 November 2025, by email, the timeframe for processing your request was
extended by 30 days as you included this agreement when submitting the original
scope (agreed under s 15AA of the FOI Act).
Accordingly, a decision on your request is due by Friday
23 January 2026.
Authorisation
I am authorised by the Managing Director of the ABC to make decisions about FOI
requests under s 23 of the FOI Act.
Decision
I have identified one document that answers the scope of your request -
Document 1,
as described in
Schedule 1, attached.
Legal ABC Ultimo Centre, 700 Harris Street, Ultimo NSW 2007
GPO Box 9994 Sydney NSW 2001 |
Email: xxx.xxx@xxx.xxx.xx
link to page 2 link to page 2
I have refused access to
Document 1.
Material taken into account
In making my decision I have considered:
• the scope of your request
• the content of the document/s requested
• the FOI Act
• the guidelines issued by the Office of the Australian Information Commissioner
under s 93A of the FOI Act (
the Guidelines), and
• relevant case law
Locating and identifying documents
The search for documents included approaching the People and Culture team. One
document was located being the final document that resulted from the investigation
into a staff matter as mentioned in the scope of your request.
I consider all reasonable steps were taken to identify and locate relevant documents
that answer your request. I am satisfied that the searches conducted were thorough
and all reasonable steps have been taken to locate the documents relevant to your
request.
Reasons for decision
s 42 – Legal Professional Privilege
Under s 42, material that would be privileged from production in legal proceedings on
the ground of legal professional privilege is exempt from release under the FOI Act.
The Guidelines explain at paragraph 5.149:
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 purpose of giving or receiving legal
advice, or use in connection with actual or anticipated litigation
• whether the advice given is independent, and
• whether the advice given is confidential
1.
The policy basis for legal professional privilege is to promote full and frank disclosure
between a lawyer and client to benefit the effective administration of justice.
2
1 Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; Waterford v Commonwealth of Australia [1987] HCA 25;
(1987) 163 CLR 54; and Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999)
201 CLR 49. See also 'VO' and Northern Australia Infrastructure Facility (Freedom of information) [2020] AICmr
47 [24]–[39]; 'VH' and Australian Taxation Office (Freedom of information) [2020] AICmr 43 [22]–[36]; Clifford
Chance Lawyers and National Competition Council (Freedom of information) [2020] AICmr 26 [49]–[76].
2 Comcare v Foster [2006] FCA 6 [22]–[40]; (2006) 42 AAR 434.
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link to page 3 link to page 3 link to page 3 link to page 3
At paragraph 5.154, the Guidelines note that at common law, when determining
whether a communication is legally privileged, factors include:
• whether a legal adviser-client relationship exists
• the dominant purpose test, which must be satisfied
• the necessary degree of independence in giving the advice
3
• the advice must be confidential
• it may apply whether or not the legal advice arose out of a statutory duty
4
• the legal adviser must be acting in their capacity as a professional legal adviser
Paragraph 5.156 of the Guidelines states that the AAT case of
Ransley and
Commissioner of Taxation (Freedom of information) [2015] AATA 728 summarises the
principles noted above in para 5.154, including that:
… ‘communications and information between an agency and its qualified legal advisers
for the purpose of giving or receiving advice will be privileged whether the legal
advisers are salaried officers [or not], provided they are consulted in a professional
capacity in relation to a professional matter and the communications arise from the
relationship of lawyer-client. There is no requirement that an in-house lawyer hold a
practicing certificate provided the employee is acting independently in giving the
advice.
In
AWB Ltd v Cole [No 5] at [47
],5 Young J noted that “in the ordinary case of a client
consulting a lawyer about a legal problem in uncontroversial circumstances, proof of
those facts alone will provide a sufficient basis for a conclusion that legitimate legal
advice is being sought or given”.
Whether a true legal adviser-client relationship exists is a question of fact based on the
circumstances in which the advice was given. Once a legal adviser-client relationship
has been established, the scope of the privilege is to be understood broadly.
6 In this
case, the fact of the solicitor-client relationship and the dominant purpose of the
communication is evident on the face of the document which was prepared by a
specialist employment lawyer who was advising the ABC its client.
I am satisfied that s 22 “irrelevant material” exemptions do not apply in this case as the
entire purpose of the document is to communicate legal advice from dedicated
internal advising lawyer to their client the ABC. A select group of staff have access to
this document on a limited need to know basis as decision makers and advisors.
3 Generally, legal professional privilege may be claimed in legal proceedings in relation to advice sought
from and given by an in-house lawyer, where the professional relationship between the lawyer and the
agency seeking advice has the necessary quality of independence, see Taggart and Civil Aviation Safety
Authority (Freedom of information) [2016] AATA 327 [32]. For a discussion of in-house lawyers in government
agencies; also Bell and Secretary, Department of Health (Freedom of Information) [2020] AATA 1436 [47]–[70].
4 Waterford v Commonwealth of Australia [1987] HCA 25 [9]; (1987) 163 CLR 54.
5 [2006] FCA 1234; (2006) 155 FCR 30.
6 Ransley and Commissioner of Taxation (Freedom of information) [2015] AATA 728 at [14] (Tamberlin DP QC).
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The document has been suitably and consistently treated as confidential within the
ABC. It had been stored in a protected manner with limited access outside of those few
with direct involvement in the matter.
I am satisfied that the common law test for whether legal professional privilege exists
has been met. The document
contains information in the form of legal advice, for the
dominant purpose of the ABC’s in house lawyers advising their client, the ABC.
The document
represents legal advice that
is considered confidential by the ABC and
privilege has not been waived. I am satisfied that this document is rightfully subject to
legal professional privilege – in fact it is marked “
subject to legal professional
privilege”. The information is sufficiently detailed describing the legal advice provided
by the specialist lawyer about a particular scenario, which could also be used
throughout the course of actual or anticipated legal proceedings
I have found that information to be exempt from release, and access is
refused under s
42 of the FOI Act. Section 42 is an unconditional exemption that is not subject to a
public interest test.
Had the unconditional exemption of s 42 not applied so clearly to the entire document,
I would have turned my mind to s 47F, personal privacy, which would have applied to
much of the document. On balance, I would have given significant weighting to the
employee’s right to privacy and found in the alternative that access was also refused.
Review rights
Your review rights are set out in
Annexure A.
Yours sincerely
Ali Edwards
Head of Rights Management & FOI Decision Maker
xxx.xxx@xxx.xxx.xx
Schedule 1 – Document Schedule – FOI 202526-077
Access
No.
Date
Description
Page/s
grant
Exemption
section/s
decision
01
July
Final legal advice
6
Refused
42 – Legal Professional Privilege
2025
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Annexure A – Your Review Rights
If you are dissatisfied with this decision you can apply for Internal Review of the decision by the
ABC, or Information Commissioner (IC) Review. You do not have to apply for Internal Review
before seeking IC Review.
APPLICATION FOR INTERNAL REVIEW BY THE ABC
You have the right to apply for an internal review of the decision refusing to grant access to
documents. If you apply for an internal review, a delegate who is not the person who made the
initial decision will undertake a review and make a fresh decision.
You must apply in writing for an internal review of the decision
within 30 days of receipt of this
letter. No particular form is required, although it helps if you set out the reasons for review in
your application and include the decision under review.
Application for a review of the original decision should be emailed to
: xxx.xxx@xxx.xxx.xx
or posted to:
FOI team
ABC Legal
GPO Box 9994
SYDNEY NSW 2001
APPLICATION FOR INFORMATION COMMISSIONER (IC) REVIEW
Alternatively, you have the right to apply for a review by the Information Commissioner of the
decision refusing to grant access to documents. Your application must:
• be in writing;
• be made
within 60 days of receipt of this letter (the original decision or the internal
review decision, or a deemed refusal decision);
• give details of how notices may be sent to you (eg. an email address); and
• include a copy of the decision for which a review sought.
Please refer to the OAIC website the IC review process page for further information including
the online form for applying for IC review:
https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-
of-information-reviews
Alternatively, an application for IC Review can be emailed to:
xxxxx@xxxx.xxx.xx or
posted to:
Director of FOI Dispute Resolution
OAIC GPO Box 5218
Sydney NSW 2001
The Information Commissioner has a discretion not to undertake a review.
COMPLAINTS TO THE INFORMATION COMMISSIONER
You may complain to the Information Commissioner about action taken by the ABC in the
performance of functions, or exercise of powers, under the FOI Act. The Information
Commissioner may make inquiries for the purpose of determining whether or not to investigate
a complaint.
Complaints can be made in writing to:
OAIC - GPO Box 5218
Sydney NSW 2001
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