of Public Prosecutions
GPO BOX 3104, Canberra ACT 2601
Level 3, 28 Sydney Avenue
Forrest ACT 2603
Telephone (02) 6206 5666
Facsimile (02) 6257 5709
16 August 2021
By email: firstname.lastname@example.org
Dear Mr Sweeney
NOTICE OF DECISION UNDER SECTION 26 OF THE FREEDOM OF INFORMATION ACT 1982 (CTH)
I refer to your email of 17 July 2021 to the Commonwealth Director of Public Prosecutions (CDPP)
requesting access under the Freedom of Information Act 1982
(Cth) (FOI Act) to:
Under the section titled “General Prosecutions” – “Offences” on the CDPP website is
s.142.2(1) Criminal Code – abuse of public office
The documents I seek are:
Documents held by the CDPP that would identify previous prosecutions for this
offence by the CDPP; and
Any guidelines in the possession of CDPP that would be used by the CDPP to
prosecute a Commonwealth Public Officer who had contravened this section of
the Criminal Code.
I am a person authorized by the Director of Public Prosecutions to make decisions on requests for
access to documents under the FOI Act. My name and position are:
Senior Federal Prosecutor
International Assistance and Specialist Agencies
On 17 July 2021 you made your FOI request by email via the Right To Know website.
On 2 August 2021 the CDPP acknowledged receipt of the FOI request by email.
A search was undertaken of all records held by the CDPP. I identified one document which fal s
within the scope of your request and the CDPP further used its computer system to produce one
document (the relevant documents).
The relevant documents are listed in the schedule in Attachment A.
In column 2 of the schedule I have described in brief terms each of the documents concerned.
In column 3 of the schedule I have indicated whether access to the document is granted or refused.
In column 4 of the schedule I have indicated by way of notation the basis of my decision to refuse
access to the document.
Part (i) of your request
At the time that your request was made, the CDPP did not hold an existing document containing the
data you requested in part (i) of your request.
In accordance with section 17 of the FOI Act, the CDPP used its computer system to produce a
penalty outcome summary report containing the information that falls within part (i) of your
request. The data produced in the document existed in the possession of the CDPP on 17 July 2021
when your request was received. I have decided to grant access to this document.
Part (i ) of your request
The Prosecution Policy of the Commonwealth
underpins all of the decision made by the CDPP
throughout the prosecution process, including for prosecutions of offences against section 142.2(1)
of the Criminal Code
. The Prosecution Policy is a publicly available document and you can access a
copy at www.cdpp.gov.au/prosecution-process/prosecution-policy.
The CDPP also publishes other
Policies and Guidelines which may apply to particular prosecutions. You can access these documents
I identified one document within part (ii) of your request which is not a generally available
publication. This document provides internal legal guidance to CDPP prosecutors on offences against
s142.2(1) of the Criminal Code.
The document is exempt under section 42 of the FOI Act and I have decided to refuse your request
for access to this document.
REASONS FOR DECISIONS AND FINDINGS OF MATERIAL FACTS
In making my decision in response to your application, I have taken the following into account:
• the terms and scope of your request
• the FOI Act
• the Guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act (available on www.oaic.gov.au).
Part (i ) of your request – document subject to legal professional privilege
A document is an exempt document under section 42 of the FOI Act if it is of such a nature that it
would be privileged from production in legal proceedings on the ground of legal professional
I am satisfied that the CDPP guideline on s142.2(1) of the Criminal Code attracts legal professional
I am satisfied that each of the following criteria has been met:
• that a solicitor/ client relationship exists between the Director of the CDPP and CDPP
lawyers, between CDPP lawyers or between CDPP lawyers and partner agencies who refer
matters to the CDPP for potential prosecution
• that the dominant purpose of the guideline on s142.2(1) of the Criminal Code is for the
provision of legal advice
• that the advice is given in confidence
• that there is anticipated litigation
• that there has been no waiver of privilege either express or implied
Legal professional privilege is capable of attaching to communications between an in-house legal
adviser and their employer, provided that the legal adviser is consulted in a professional capacity in
relation to a professional matter and the communications are made in confidence and arise from the
relationship of lawyer and client (Waterford v Commonwealth
(1987) 163 CLR 54).
The Office of the CDPP is established by the Director of Public Prosecutions Act 1983
(DPP Act) and
consists of the Director and the members of the staff of the Office who are legal practitioners.
Section 16 of the DPP Act provides that the Director or member of the staff of the Office who is a
legal practitioner is in his or her official capacity entitled to practice as a barrister, solicitor or
barrister and solicitor in a Federal Court or in a Court of a State or Territory.
The relationship between the Director and the solicitors employed within the Office of the CDPP is
sufficient for the CDPP to be regarded as the ‘client for the purposes of legal advice provided by her
staff or by a Crown Prosecutor’ (CDPP v Kinghorn
 NSWCCA 48). The CDPP and its legal
practitioners are also in a lawyer-client relationship with partner agencies and investigators in these
agencies and legal advice is provided in relation to actual or anticipated litigation.
The concept of ‘legal advice’ has been interpreted widely. It can extend to advice as to what should
prudently or sensibly done in the relevant legal context (Australian Wheat Board v Cole
(No 5) 
FCA 1234). I find that the guideline was created for the dominant purpose of providing legal advice
in relation to the prosecution of s142.2(1) Criminal Code offences.
The guideline is a legal resource prepared by CDPP legal practitioners on behalf of the Director. It is a
resource for CDPP legal practitioners and the partner agencies which investigate and refer briefs of
evidence to the CDPP for assessment and prosecution in accordance with the Prosecution Policy of
. The guideline is itself legal advice and also contains a summary of legal advice
provided to officers of the CDPP.
Confidential communication and dominant purpose
The guideline was prepared on the understand that the usual and wel established relationship of
confidence between a lawyers and client governed the communication. The legal advice contained in
the guideline was prepared and held on a confidential basis for the dominant purpose to give legal
and procedural advice on matters concerning prosecting s142.2(1) Criminal Code offences.
The communications were confidential at the time they were made and remain confidential.
Section 42(2) of the FOI Act provides that a document is not an exempt document if the person
entitled to claim legal professional privilege in relation to the production of the document in legal
proceedings waives that claim.
A person who would otherwise be entitled to the benefit of legal professional privilege may waive
that privilege, either expressly or by implication. Legal professional privilege is waived if the conduct
of the person seeking to rely on the privilege is inconsistent with the maintenance of the privilege.
The guideline is available to CDPP partner agencies on a confidential basis, who are advised that
privilege attaches to the guideline. This limited disclosure is not inconsistent with maintaining
confidentiality of the communications where the disclosure is to partner agencies for the directly
limited purpose directly related to the prosecution of section 142.2(1) Criminal Code offences.
Accordingly, I am satisfied that there has been no waiver.
Section 93A of the FOI Act required me to have regard to any guidelines by the Information
Commissioner. Guideline Part 5 – Exemptions
requires me to consider whether ‘real harm’ would
result from releasing the guideline. I consider that disclosure of the guideline would result in
substantial prejudice to the CDPP in the on-going course of prosecutions or potential prosecutions. It
would undermine and inhibit the full and frank provision of legal advice by the CDPP in the course of
anticipated or actual litigation by the CDPP between officers of the CDPP, and the CDPP and partner
The parts of the guideline that are privileged cannot be separated from those parts which are not.
The entire guideline is exempt under section 42 of the FOI Act and is not appropriate to grant access
to the document with deletions pursuant to section 22(1) of the FOI Act.
RIGHTS OF REVIEW
Under section 26 of the FOI Act I am required to inform you of your rights of review.
Section 54 of the FOI Act gives you the right to apply for an internal review of the decision refusing
to grant access to documents. An application for internal review of the decision must be made in
writing in 30 days of receipt of this letter. No particular form is required but it is desirable to set out
in the application the grounds on which you consider the decision should be reviewed. An
application may be sent to email@example.com
or to the following postal address:
PO Box 3104
CANBERRA ACT 2601
If the decision on internal review goes against you, you are entitled to seek a review of that decision
by the Information Commissioner. Alternatively, you are entitled to bypass the internal review
process and make an application directly with the Office of the Information Commissioner pursuant
to section 54L of the FOI Act.
An application to the Information Commissioner may be made in writing and should be directed to
the following address:
Office of the Australian Information Commissioner (Reviews)
GPO Box 5218
SYDNEY NSW 2001
The Information Commissioner also accepts online requests via their website. You can locate the
relevant form at www.oaic.gov.au
Senior Federal Prosecutor
International Assistance Specialist Agencies
Penalty Outcome Summary Report –
Release in full
section 142.2(1) Criminal Code
Exempt in ful
This Office declines
access on the basis
that the document
which is subject to
privilege and is exempt
in full from release
pursuant to section
42(1) of the FOI Act.