Attachment B – Reasons: Freedom of Information
Request No. LEX2977
Authority
As a Principal Government Lawyer, Legal and Procurement Branch, I am an authorised decision-
maker under section 23 of the FOI Act.
Retrieval process
To identify documents for your request, I arranged for relevant staff likely to be able identify
documents to undertake a comprehensive search of the relevant electronic holdings used by the
AEC. Relevant staff were interrogated on their findings, and confirmed comprehensive searches
were undertaken and that further documents were unlikely to be within scope.
The scope of the request included documents that were created by and shared across government
departments, particularly the Department of Finance.
Relevant Documents
With regard to the Relevant Documents identified in Attachment A, I have decided:
a) to refuse access to Documents 1-15.
Material taken into account
I have taken the fol owing material into account in making my decision:
a) the content of the documents that fal within the scope of your FOI Request;
b) the FOI Act, specifical y sections 42, 47B, 47C and 47E;
c) the guidelines (‘FOI Guidelines’) issued by the Australian Information Commissioner under
section 93A of the FOI Act;
d) the FOI Guidance Notes, July 2011 issued by the Department of Prime Minister and Cabinet;
and
e) the Privacy Act 1988.
For the reasons set out below, I have decided that one or more of the fol owing exemptions, identified
in the schedule of documents at Attachment A for each document, applies to that document or part of
it: sections 42, s 47B, s 47C and s 47E.
Section 42 – Legal professional privilege
Section 42(1) exempts a document if it is of such a nature that it would be privileged from production
in legal proceedings on the ground of legal professional privilege (LPP).
10 Mort Street, Canberra ACT 2601 P 02 6271 4411 F 02 6293 7601
www.aec.gov.au
A document is exempt from production on the ground of legal professional privilege if al of the
fol owing apply:
i) there exists a lawyer-client relationship;
i ) there have been confidential communications which are recorded in the document;
i i) the communications were for the dominant purpose of providing legal advice or in the context
of actual or anticipated legal proceedings; and
iv) the privilege has not been waived.
I find that disclosure of the documents exempted under section 42(1) would involve disclosure of
documents that would be exempt from production in legal proceedings on the ground of legal
professional privilege.
The AEC has a legal branch which is staffed by lawyers admitted to practice and who hold practising
certificates. The lawyers in this branch provide independent legal advice. They do not work on policy
or other issues.
There was a legal adviser-client relationship between the Commonwealth and Australian
Government Solicitors (AGS), within which confidential communications occurred for the purpose of
receiving legal advice in connection with the drafting of the Electoral Legislation Amendment (COVID
Enfranchisement) Bil 2022 and the Commonwealth Electoral (COVID Enfranchisement) Regulations
2022, including review and commentary on of draft versions of the legislation. That advice was
incorporated into the drafting process. Except for the final product as passed by the Parliament and
available on the Federal Register of Legislation, we consider that the advice extends to al
communication that is associated with that advice.
The documents to which the exemption has been applied contain communications which were at the
time and remain confidential and were for the dominant purpose of providing legal advice. I am not
aware of any information that would suggest privilege in the communications has been waived.
Section 47B – Commonwealth-state relations
Section 47B conditional y exempts documents if their disclosure would or could:
a) reasonably be expected to (among other things) damage Commonwealth-State relations or
the Government of Norfolk Island, or
b) disclose information communicated in confidence by or on behalf of a government or authority
of a State to the Commonwealth or the Government of Norfolk Island.
Commonwealth-state relations
I have considered the content of the document exempted under section 47B and determined that it is
reasonable to conclude that it may damage Commonwealth-State relations, as it contains information
that would not have been provided in anticipation of it being made public. The document was
provided in confidence from the Commonwealth to a state authority.
Public interest
Having concluded that the documents are conditional y exempt on the basis that it is reasonable to
conclude that it may damage Commonwealth-State relations, I now need to consider whether it
10 Mort Street, Canberra ACT 2601 P 02 6271 4411 F 02 6293 7601
www.aec.gov.au
would be contrary to the public interest for it to be disclosed to you in accordance with s 11A(5) of the
FOI Act.
I consider that the public interest factors that weigh in favour of disclosure are that it would:
i) informing debate on a matter of public importance; and
i ) facilitating access to information to members of the public that al ows them to be satisfied that
proper processes have been fol owed by the agency.
I consider that the public interest factors that weigh against disclosure are that:
i) disclosure could reasonably be expected to prejudice the AEC's ability to provide similar
documents to state authorities in future;
i ) disclosure could reasonably be expected to prejudice the AEC's relationship with state
authorities and government; and
i i) disclosure could reasonably be expected to prejudice the effective and efficient functioning of
the AEC.
Taking into account the above matters, on balance, I consider that disclosure of the information in the
document exempted under section 47B, is contrary to the public interest.
Section 47C – deliberative matter
Section 47C of the FOI Act provides that a document is conditional y exempt if its disclosure under
the FOI Act would disclose matter (deliberative matter) in the nature of, or relating to, opinion, advice
or recommendation, prepared or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purposes of, the deliberative processes involved in the functions of:
a) an agency; or
b) a minister; or
c) the Government of the Commonwealth.
Deliberative matter
Part 6.52 of the OAIC FOI Guidelines provides that ‘deliberative matter’ is content that is in the nature
of, or relating to either:
an opinion, advice or recommendation that has been obtained, prepared or recorded, or
a consultation or deliberation that has taken place, in the course of, or for the purposes of, a
deliberative process of the government, an agency or minister (s 47C(1)).
The Administrative Appeals Tribunal decision of Wood; Secretary, Department of Prime Minister and
Cabinet and (Freedom of Information) [2015] AATA 945 explained that the meaning of the words
'opinion', 'advice' and 'recommendation' al involve consideration, fol owed by the formation of a view
either about a certain subject or about a course of action and the subsequent transmission of that
view.
I have careful y reviewed the documents exempted under section 47C and consider that they include
opinions, advice and recommendations. The opinions, advice and recommendations relate to the
functions of the AEC under the Commonwealth Electoral Act 1918 (Cth).
10 Mort Street, Canberra ACT 2601 P 02 6271 4411 F 02 6293 7601
www.aec.gov.au
Section 47C does not extend to operational information or purely factual information. I have
considered the substance of these documents and consider that while some purely factual
information is contained within the relevant documents, this material relates to the advice and
opinions being considered. To disclose these facts would disclose the nature of the advice being
considered.
Public interest
Having concluded that the documents are conditional y exempt on the basis that they contain
deliberative material, I now need to consider whether it would be contrary to the public interest for
them to be disclosed to you in accordance with s 11A(5) of the FOI Act.
I consider that the public interest factors that weigh in favour of disclosure are:
i) informing debate on a matter of public importance, namely how the AEC conducts federal
elections; and
i ) facilitating access to information to members of the public that al ows them to be satisfied that
proper processes have been fol owed by the agency.
I consider that the public interest factors that weigh against disclosure are:
i) the importance of maintaining the ful and frank exchange of ideas between agencies, for the
purpose of canvassing issues surrounding drafting of legislation, which involves a rigorous
consultation process between relevant agencies;
i ) disclosure could reduce the ful and frank testing of ideas between agencies, which ultimately
would result in less rigorously tested policy proposals and draft legislation in the future;
i i) disclosure could reasonably be expected to prejudice the AEC's ability to obtain similar
information in the future;
iv) disclosure could reasonably be expected to prejudice the AEC's ability to attain the objects of
the consultation process conducted by the AEC;
v) disclosure could reasonably be expected to prejudice the AEC's management function and
ability to perform its functions; and
vi) disclosure could reasonably be expected to prejudice the effective and efficient functioning of
the AEC.
I consider that these factors take on additional weight when considering that the AEC is an
independent statutory body. It is crucial to the proper functioning and integrity1 of the AEC that it is
able to provide frank and fulsome advice to government and to seek information from government on
the operation of the Australian electoral framework especial y during the delivery of an electoral
event.
Taking into account the above matters, on balance, I consider that disclosure of the information in the
document exempted under section 47C, is contrary to the public interest.
1 The proper function and integrity reflects that type of practice identified in Rovere and Secretary, Department
of Education and Training [2015] AATA 462 that sustains a claim of frankness and candour.
10 Mort Street, Canberra ACT 2601 P 02 6271 4411 F 02 6293 7601
www.aec.gov.au
Section 47E – Certain operations of agencies
Section 47E of the FOI Act conditional y exempts a document if their disclosure would reasonably be
expected to affect certain operations of agencies on one or more of the fol owing grounds:
a) prejudice to the effectiveness of procedures or methods for the conduct of tests, examinations
or audits;
b) prejudice to the attainment of the objects of particular tests, examinations or audits;
c) a substantial adverse effect on the management or assessment of personnel; or
d) a substantial adverse effect on the proper and efficient conduct of operations.
Certain operations of agencies
I have careful y reviewed the relevant documents and consider that it is relevant to take into account
whether the release of these documents could have a substantial adverse effect on the proper and
efficient conduct of operations.
The AEC is an independent statutory authority. It is funded to deliver one purpose and one outcome:
Maintain an impartial and independent electoral system for eligible voters through active electoral rol
management, efficient delivery of pol ing services, and targeted education and public awareness
programs.
Government agencies require the ability to have ful and frank conversations in relation to policy
discussions, particular involving amendments to legislation, to ensure that al pertinent issues are
canvased, and that the legislation is ultimately fit for purpose. The release of this information could
reasonably be expected to impact agencies wil ingness to engage in similar conversations in the
future, which would have a detrimental impact upon the AEC (and the Department of Finance) to be
able to engage with other agencies to assist with providing policy advice and support on electoral
matters to the Minister for Finance who is responsible for legal and policy framework for elections
and referendums, including electoral legislation.
The public interest
Having concluded that the documents are conditional y exempt on the basis that their disclosure
would reasonably be expected to affect certain operations of agencies, I now need to consider
whether it would be contrary to the public interest for them to be disclosed to you in accordance with
s 11A(5) of the FOI Act.
I consider that the public interest factors that weigh in favour of disclosure are:
i) promoting the objects of the Act, particularly in increasing scrutiny, discussion, comment and
review of the Government's activities (section 3(2)(b) of the FOI Act);
i ) informing debate on a matter of public importance, namely how the AEC conducts federal
elections; and
i i) facilitating access to information to members of the public that al ows them to be satisfied that
proper processes have been fol owed by the agency.
10 Mort Street, Canberra ACT 2601 P 02 6271 4411 F 02 6293 7601
www.aec.gov.au
I consider that the public interest factors that weigh against disclosure are:
i) the importance of maintaining the ful and frank exchange of ideas between agencies, for the
purpose of canvassing issues surrounding drafting of legislation, which involves a rigorous
consultation process between relevant agencies;
i ) disclosure could reduce the ful and frank testing of ideas between agencies, which ultimately
would result in less rigorously tested policy proposals and draft legislation in the future;
i i) disclosure could reasonably be expected to prejudice the AEC's ability to obtain similar
information in the future;
iv) disclosure could reasonably be expected to prejudice the AEC's ability to attain the objects of
the consultation process conducted by the AEC;
v) disclosure could reasonably be expected to prejudice the AEC's management function and
ability to perform its functions;
vi) disclosure could reasonably be expected to prejudice the effective and efficient functioning of
the AEC.
I consider that these factors take on additional weight when considering that the AEC is an
independent statutory body. It is crucial to the proper functioning and integrity2 of the AEC that it is
able to provide frank and fulsome advice to government and to seek information from government on
the operation of the Australian electoral framework especial y during the delivery of an electoral
event.
Taking into account the above matters, on balance, I consider that disclosure of the information in
documents exempted under section 47E, is contrary to the public interest.
2 The proper function and integrity reflects that type of practice identified in Rovere and Secretary, Department
of Education and Training [2015] AATA 462 that sustains a claim of frankness and candour.
10 Mort Street, Canberra ACT 2601 P 02 6271 4411 F 02 6293 7601
www.aec.gov.au
