OFFICIAL
Freedom of Information (FOI) request
Notice of Decision
Reference: FOI/2022/202IR
To: Alex Pentland
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Pentland
I refer to your email dated 12 September 2022, seeking an internal review under the Freedom of
Information Act 1982 (the FOI Act), of the decision made on the same day (the primary decision) by
the Department of the Prime Minister and Cabinet (the Department).
You set out your request for internal review, as fol ows (extract):
In the case of Patrick and Secretary, Department of Prime Minister and Cabinet, White J, a Judge
of the Federal Court of Australia, found that beyond National Cabinet not being a committee of
the Cabinet, rejected the claim of minutes of specific meetings being conditionally exempt under
section 47B…
Furthermore, the reliance on "The Importance of Confidentiality to Relationships between the
Commonwealth, States and Territories" statement is, in my view, dubious, given the statement
has subsequently been removed from public access, and no statutory legislation could be
provided showing such views being enshrined in law…
Given the nature of the information I have outlined from AAT decisions and legal opinions, I am
indicating that I am not satisfied with the rationale that forms the basis of this rejection.
I seek an internal review with this in mind, seeking for a review into both the total exception
under 47B, and the partial redaction under 47C.
Under section 54(2) of the FOI Act, an applicant is entitled to apply for a review of a decision refusing
to give access to a document in accordance with a request
Authorised decision-maker
Section 54C(2) of the FOI Act provides that an agency must arrange for a person (other than the
person who made the original decision) to undertake a review of that decision.
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
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OFFICIAL
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the FOI Act.
Internal review decision
I have decided to affirm the primary decision so far as it relates to the application of section 47B(a)
(damage to Commonwealth-state relations) of the FOI Act over the requested documents. After
additional consideration, I have decided to vary the decision so far as it relates to the application of
section 47C (deliberative processes) the conditional y exempt material.
Therefore my decision is to refuse access to the requested document, with material exempted under
sections 47B(a) of the FOI Act.
In reaching my decision, I have had regard to:
• the terms of your request of 12 September 2022
• the primary decision
• the views of third parties consulted by the Department under section 26A of the FOI Act
• your request for internal review
• the FOI Act, and
• the ‘Guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act’ (the FOI Guidelines).
Background
On 16 July 2022, you made a request under the FOI Act in the fol owing terms (extract):
The agenda, minutes, and recordings of decisions for the National Cabinet Meeting held on
16 July 2022.
You have requested an internal review of the primary decision. The primary decision for your request
was to refuse access to two documents in ful , under section 47B(a) of the FOI Act. The primary
decision maker also determined that parts of the requested documents were exempt under section
47C(1)(c) of the FOI Act.
Reasons for Internal Review decision
My findings of fact and reasons for decision are set out below.
Section 47B – Damage to Commonwealth-state relations
As outlined in the primary decision, the requested documents are the agenda, and record of meeting
for the National Cabinet meeting held on 16 July 2022.
I have considered the views of al eight jurisdictions consulted under section 26A of the FOI Act and
the
Joint Statement on the Importance of Confidentiality to Relationships between the Commonwealth
and the States and Territories (Joint Statement) and agree with the reasons for the primary decision.
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OFFICIAL
Specifical y, I am satisfied that disclosure of the requested documents has the potential to erode the
principles of trust, confidence and collaboration which underpin the National Cabinet, a confidential
forum. I agree that disclosure would, or could, have an inhibiting effect on the open flow of
information between members of the National Cabinet.
I have also had regard to the terms of your request for internal review, in which you reference the
fol owing extract of a decision of Administrative Appeals Tribunal (AAT) Deputy President (Justice)
White in Patrick and Secretary, Department of Prime Minister and Cabinet [2021] AATA 271
9 (Patrick):
“I conclude therefore that s 47B(a) of the FOI Act does not have the effect that the minutes of the
National Cabinet made on 29 May 2020 are conditionally exempt”
I note that the AAT decision in Patrick is not considered to have precedential force beyond the facts
and documents before the AAT in that specific matter. I am aware that there is additional evidence
available to Departmental delegates making decisions on requests for access to documents of the
National Cabinet, which was not available to Justice White when he made his decision.
Additional y, I note that after every National Cabinet meeting the Prime Minister subsequently
publishes a statement regarding the outcomes of the meeting. These statements (including historical
statements) are made available at
federation.gov.au.1 The release of these statements are the process
by which outcomes of each National Cabinet meeting are officially disclosed and disclosure other than
as agreed by the National Cabinet could cause damage to relations between the Commonwealth and
the States and Territories.
For the above reasons, and having regard to consultation comments received from States and
Territories, I remain satisfied that the requested documents are conditional y exempt under section
47B(a) of the FOI Act, as they contain information which, if disclosed would, or could reasonably be
expected to, cause damage to relations between the Commonwealth and the States and Territories by
adversely affecting the trust and cooperation that underpins the National Cabinet and impairing
future sharing of information between jurisdictions.
Accordingly, I affirm the primary decision to exempt this material under section 47B(a) of the FOI Act.
Section 47C – Deliberative matter
As noted in the primary decision, information is conditional y exempt under section 47C(1)(c) of the
FOI Act if its disclosure would disclose matter in the nature of, or relating to, opinion, advice, or
recommendation obtained, 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 the
Government of the Commonwealth. Such material is described as ‘deliberative matter’.
I am satisfied that parts of the documents contained deliberative matter at the point in time at which
you were notified of the primary decision on 8 September 2022. However I am of the view that this
1 https://federation.gov.au/national-cabinet/media-statements
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OFFICIAL
information no longer constitutes deliberative matter due to the passage of time, which has seen the
completion of certain discussions since the 16 July 2022 meeting.
As such, I have decided to vary the primary decision so far as it relates to the application of section
47C to the conditional y exempt material.
Public Interest
In relation to the document that I have found to be conditional y exempt under section 47B of the FOI
Act, I considered the public interest factors as outlined in the primary decision and I am satisfied that,
on balance, the factors against disclosure outweigh those favouring disclosure.
Other information
I note that in your request for internal review you assert that reliance by the primary decision maker
on the Joint Statement is “dubious, given the statement has subsequently been removed from public
access, and no statutory legislation could be provided showing such views being enshrined in law”.
I can confirm that the Joint Statement has not been removed from public access and you are able to
access it at the bottom of the media statement from the 17 September 2021 National Cabinet
meeting, availabl
e here.2 This change in accessing National Cabinet statements online is due to the
change of government after the May 2022 Federal Election. For your reference, the former Prime
Minister’s media releases and statements are now archived on
PM Transcripts3 – a web archive of
transcripts from Australian Prime Ministers dating from the early 1940’s to the most recent Prime
Minister, the Hon Scott Morrison MP. We apologise for any inconvenience caused and trust this
information assists.
In relation to your statements about legislation, I note that al members of the National Cabinet
maintain that the confidentiality of discussions and decisions of the forum al ows for the sharing of
sensitive information and judgements. In my experience with intergovernmental relations over many
years, it is my view that legislation is not always required to demonstrate a commitment by
governments and therefore a commitment by the National Cabinet would not necessarily be
diminished by the absence of legislation.
I would also note that the draft legislation you reference (the COAG Legislation Amendment Bil 2021)
lapsed at the dissolution of the 46th Parliament of Australia on 11 April 2022.
Review rights
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to
review my decision. An application for review by the Information Commissioner must be made in
writing within 60 days after the date of this letter.
2
https://pmtranscripts.pmc.gov.au/release/transcript-44111
3
https://pmtranscripts.pmc.gov.au/
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OFFICIAL
More information about Information Commissioner review is available at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-commissioner-
review/
FOI Complaints
If you are unhappy with the way we have handled your FOI request, please let us know what we could
have done better. We may be able to rectify the problem. If you are not satisfied with our response,
you can make a complaint to the Australian Information Commissioner. A complaint to the
Information Commissioner must be made in writing.
More information about complaints is available on the Office of the Australian Information
Commissioner at
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-an-
foi-complaint/. If you wish to discuss any aspect of your request, you can contact the FOI Section by email at
xxx@xxx.xxx.xx. Yours sincerely
Lee Steel
First Assistant Secretary
Intergovernmental Relations and Reform Division
Department of the Prime Minister and Cabinet
10 October 2022
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