Ref: LEX-81956
Emily
Via email
: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Emily
Your Freedom of Information request – Charges Decision
I refer to your request dated and received by the Department of Climate Change, Energy, the
Environment and Water (
department) on 25 December 2025 for access under the
Freedom of
Information Act 1982 (Cth) (
FOI Act) to the following documents:
‘Documents created on or after 1 July 2025 that brief the Secretary and/or the Minister
on the implications of the International Court of Justice Advisory Opinion on climate
change for Australia’s domestic regulatory, policy, or legislative framework.
This includes, but is not limited to, any discussion of:
- Australia’s obligations under international law following the Advisory Opinion;
- due diligence obligations in relation to greenhouse gas emissions, climate risk, or
environmental harm;
- the adequacy of existing Commonwealth climate frameworks, legislation, or regulatory
measures in light of the Advisory Opinion; and
- proposed or recommended policy, regulatory, or legislative responses.
Document types:
This request is limited to final briefing documents provided to the Secretary and/or the
Minister. Where a briefing document was prepared but not ultimately provided, this
request includes the latest version of that document.
Extension of time:
I agree to an 8-day extension of time under s 15AA of the FOI Act to offset the processing
days lost over the government's shut down period from 25 December 2025 to 1 January
2026 inclusive.’
My decision
I have decided to not impose the charge of $145.42.
The reasons for my decision, including the relevant sections of the FOI Act, are set out in
Attachment A.
Time periods of processing your request
Section 31 of the FOI Act provides that where a notice is sent to an applicant regarding the
payment of a charge in respect of a request, the time limit for processing the request is
suspended from the date the applicant was notified of the charge until:
• the day after the charge (or deposit) is paid; or
• if applicable, where a subsequent review decision has been provided, the day after:
o a charge or deposit has been paid; or
o the applicant is notified of a decision to not impose the charge.
As I have decided to not to impose the charge, a decision on your FOI request and access to
documents is now due by Monday 23 February 2026.
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
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 website
www.oaic.gov.au or phone the OAIC on 1300 363 992.
You can also make a complaint to the Commonwealth Ombudsman if you have concerns about
how the Department handled a request for documents under the FOI Act, or took any other
action under the FOI Act. There is no fee for making a complaint to the Commonwealth
Ombudsman.
Information about making a complaint to the Commonwealth Ombudsman is available in its
website
www.ombudsman.gov.au or phone the Ombudsman on 1300 362 072.
Further assistance
If you have any questions, please emai
l xxx@xxxxxx.xxx.xx.
Yours sincerely
Ashleigh Fox
Branch Head (ag)
Climate Negotiations and Engagement Branch
International Climate Negotiations Division
11/02/2026
Attachment A
REASONS FOR DECISION
What you requested
‘Documents created on or after 1 July 2025 that brief the Secretary and/or the Minister
on the implications of the International Court of Justice Advisory Opinion on climate
change for Australia’s domestic regulatory, policy, or legislative framework.
This includes, but is not limited to, any discussion of:
- Australia’s obligations under international law following the Advisory Opinion;
- due diligence obligations in relation to greenhouse gas emissions, climate risk, or
environmental harm;
- the adequacy of existing Commonwealth climate frameworks, legislation, or regulatory
measures in light of the Advisory Opinion; and
- proposed or recommended policy, regulatory, or legislative responses.
Document types:
This request is limited to final briefing documents provided to the Secretary and/or the
Minister. Where a briefing document was prepared but not ultimately provided, this
request includes the latest version of that document.
Extension of time:
I agree to an 8-day extension of time under s 15AA of the FOI Act to offset the processing
days lost over the government's shut down period from 25 December 2025 to 1 January
2026 inclusive.’
What I took into account
In reaching my decision, I took into account:
• your original request dated 25 December 2025;
• the preliminary assessment of charges dated 23 January 2026;
• the documents that fall within the scope of your request;
• consultations with departmental officers 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
Freedom of Information (Charges) Regulations 2019 (
Regulations); and
• the FOI Act.
Reasons for my decision
I am authorised to make decisions under section 23(1) of the FOI Act.
I have decided to not to impose the charge of $145.42. My findings of fact and reasons for this
decision are discussed below.
Preliminary assessment of charge
On 23 January 2026, I wrote to you to advise you that I had decided to impose a charge of
$145.42 for processing your request.
My preliminary assessment of that charge was calculated as follows:
Search and retrieval time: 4 hours at $15.00 per hour
$60.00
Decision-making time: $20.00 per hour
Examining pages, redacting and scheduling documents
$125.42
Writing statement of reasons
$60.00
Deduction of 5 hours decision-making time*
-$100.00
TOTAL
$145.42
*The FOI Act provides that the first five hours of decision-making time are free of charge and this is reflected in the
calculation.
Your contentions
On 23 January 2026, you requested a reduction or waiver of the charge for processing your
request under the FOI Act, on the grounds of public interest. Specifically, your correspondence
provided:
‘…I contend that the charge has been wrongly assessed and should be fully waived on
public interest grounds.
1. Public interest and interest of a substantial section of the public:
The documents sought are final briefing materials provided to the Secretary and/or the
Minister concerning the implications of the International Court of Justice Advisory
Opinion on climate change for Australia’s domestic regulatory, policy, or legislative
framework. Access to these documents is in the public interest for the following specific
reasons.
Firstly, the documents are expected to reveal how the Australian Government has
internally interpreted and responded to an authoritative statement of international law
issued by the principal judicial organ of the United Nations. Disclosure would enable
public scrutiny of whether, and how, international legal obligations articulated by the ICJ
are being translated into domestic policy advice and executive decision-making.
Secondly, the documents concern advice provided to the most senior levels of the
executive government on matters that directly affect the formulation of climate policy,
regulatory approaches, and potential legislative reform. Public access to this material
would promote transparency around the basis on which ministers and senior officials
are being advised, particularly in an area of policy that has significant long-term
consequences for the Australian community.
Thirdly, the subject matter of the documents engages questions of governmental due
diligence in relation to climate change, environmental harm, and risk management.
Disclosure would assist the public, civil society organisations, academics, and legal
practitioners to assess whether existing Commonwealth frameworks are being critically
evaluated against evolving international legal standards, and whether gaps or
deficiencies have been identified internally.
Fourthly, access to the documents would facilitate informed public debate and
accountability in circumstances where climate governance and Australia’s compliance
with international obligations are matters of ongoing public controversy and
parliamentary interest. The material is capable of informing public submissions,
academic analysis, media reporting, and parliamentary scrutiny, rather than serving any
private or commercial interest.
Finally, the request is narrowly framed and limited to final briefing documents, reflecting
an intention to minimise the administrative burden on the department while obtaining
information of genuine public value. The public interest in disclosure is therefore strong,
while the countervailing interest in cost recovery is comparatively weak.
2. Objects of the FOI Act and proportionality of the charge:
Section 3 of the FOI Act emphasises that access to government-held information should
be provided promptly and at the lowest reasonable cost. In this case, the department has
identified only five documents comprising approximately 75 pages. In those
circumstances, the preliminary charge of $145.42 is disproportionate and risks
operating as a barrier to access, contrary to the objects of the Act.
The OAIC has consistently emphasised that charges should not be imposed in a manner
that discourages access to information where there is a clear public interest in
disclosure, particularly for high-level policy and briefing material. Recent OAIC decisions
on charges support a full waiver - See, eg, Paul Farrell and Services Australia (Freedom of
information) [2024] AICmr 37 (15 February 2024), and 'ALN' and Department of Home
Affairs (Freedom of information) [2024] AICmr 136 (1 July 2024).
In conclusion, for reasons stated above, I respectfully submit that the charge should be
fully waived under s 29(5) of the FOI Act…’
Financial hardship
Under section 29(5)(a) of the FOI Act, I am required to consider whether payment of the charge
would cause financial hardship to you.
Paragraph 4.101 of the Guidelines relevantly provides:
Financial hardship exists when payment of the debt would leave you unable to provide
food, accommodation, clothing, medical treatment, education or other necessities for
yourself and your family, or other people for whom you are responsible.
The Guidelines further provide that an applicant relying on the grounds of financial hardship
would ordinarily be expected to provide some evidence of financial hardship, such as receipt of
an income support payment or evidence of income, debts or assets. In this regard, I note that you
have not provided evidence to support a claim regarding financial hardship.
As you have not provided evidence in relation to your financial status, I am not satisfied that the
payment of the charge would cause financial hardship to you.
Public interest
Under section 29(5)(b) of the FOI Act, I am required to consider whether giving access to the
documents would be in the general public interest or the interest of a substantial section of the
public.
Paragraph 4.107 of the Guidelines relevantly provides:
An applicant relying on s 29(5)(b) should identify or specify the ‘general public interest’
or the ‘substantial section of the public’ that would benefit from this disclosure. This may
require consideration both of the content of the documents requested and the context in
which their public release would occur. Matters to be considered include whether the
information in the documents is already publicly available, the nature and currency of
the topic of the public interest to which the documents relate, and the way in which a
public benefit may flow from the release of the documents.
The Guidelines further provide that there is no presumption that the public interest test is
satisfied by reason only that the applicant is a Member of Parliament, a journalist or a
community or non-profit organisation. The Guidelines further provide that it is necessary to go
beyond the status of the applicant and to look at other circumstances.
Paragraph 4.99 of the Guidelines further provides:
An agency or minister is also entitled to consider matters that weigh against those relied on
by an applicant. For example, an agency may decide it is appropriate to impose an FOI
charge where:
•
the applicant can be expected to derive a commercial or personal benefit or advantage
from being given access and it is reasonable to expect the applicant to meet all or part
of the charge
•
the documents are primarily of interest only to the applicant and are not of general
public interest or of interest to a substantial section of the public
•
the information in the documents has already been published by an agency and the
documents do not add to the public record
•
the applicant has requested access to a substantial volume of documents and significant
work will be required to process the request.
I have carefully considered your submissions regarding the implications of the International Court
of Justice Advisory Opinion (
Advisory Opinion) on climate change for Australia’s domestic
regulatory, policy, or legislative framework and the relevance of this to the public interest or a
substantial section of the public.
Whilst I am satisfied there is a general public interest element in the disclosure of information
which outlines the decision-making process in relation to Australia’s response to the Advisory
Opinion and promotes government transparency, I am not satisfied that there is compelling
evidence to support your contentions the information you requested about the project
specifically is of “significant public interest”. Further, there is a large amount of information
regarding Australia’s response to the Advisory Opinion publicly available online, including
material released by the department under previous FOI requests:
https://www.dcceew.gov.au/sites/default/files/documents/80784.pdf.
Additional information has also been released by other responsible agencies including the
Department of Foreign Affairs and Trade and the Attorney-General’s Department. Examples are
linked below:
•
https://www.dfat.gov.au/sites/default/files/dfat-foi-lex11595.pdf
•
https://www.ag.gov.au/rights-and-protections/freedom-information/freedom-
information-disclosure-log/foi25534
Other matters
Under section 29(5) of the FOI Act, I may take into account other matters in determining
whether or not to impose the charge.
I have considered your submissions in relation to the objects of the FOI Act and the
proportionality of the charge.
I have considered paragraph 4.114 of the Guidelines, which provides that an agency or minister
has a general discretion to reduce or not impose a charge, and this discretion is not limited to
financial hardship or public interest grounds. In particular, where the cost of calculating and
collecting a charge might exceed the cost to the agency of processing the request.
On this basis, and noting the information you have provided, I am satisfied that the
administrative cost involved in collecting the charge on this occasion will likely exceed the cost
itself. As such, I have decided not to impose a charge in this instance.
