Documents evidencing departmental consultations and deliberations

Response to this request is delayed. By law, Department of the Prime Minister and Cabinet should normally have responded promptly and by (details)

Dear FOI

Please refer FOI/2021/007 and in particular Mr Rush’s statement regarding documents prepared for the Parliamentary Secretary to the Prime Minister - Senator the Hon Jan McLucas.

Relevantly, Mr Rush states “the matter continued to be the subject of consultations and deliberations which were not finalised as at the date the Hon Jan McLucas ceased in the role of PSPM.”

1. We would like to review the documents relevant to, and showing, the department’s consultations and deliberations during Senator McLucas’s tenure as PSPM.

2. We would also like to review the documents relevant to, and showing, the department’s consultations and deliberations during Senator the Hon Dr Andrew Leigh's tenure as PSPM.

Please accept these requests for information under the FOI Act.

Thank for your time.

Yours sincerely

Trav S

FOI, Department of the Prime Minister and Cabinet

5 Attachments

OFFICIAL

PM&C Ref: FOI/2021/118

 

Dear Trav S

 

Thank you for your email dated 20 July 2021, received by the Department of
the Prime Minister and Cabinet (the Department), in which you made a
request to the Department under the Freedom of Information Act 1982 (the
FOI Act) in the following terms:

 

Please refer FOI/2021/007 and in particular Mr Rush’s statement regarding
documents prepared for the Parliamentary Secretary to the Prime Minister -
Senator the Hon Jan McLucas. 

 

Relevantly, Mr Rush states “the matter continued to be the subject of
consultations and deliberations which were not finalised as at the date
the Hon Jan McLucas ceased in the role of PSPM.”

 

1.  We would like to review the documents relevant to, and showing, the
department’s consultations and deliberations during Senator McLucas’s
tenure as PSPM. 

 

2.  We would also like to review the documents relevant to, and showing,
the department’s consultations and deliberations during Senator the Hon Dr
Andrew Leigh's tenure as PSPM.

 

Timeframe for receiving your decision

 

We received your request on 20 July 2021 and the 30 day statutory period
for processing your request commenced from the day after that date. You
should therefore expect a decision from us by 19 August 2021. The period
of 30 days may be extended in certain circumstances. We will advise you if
there is any extension of time.

 

Charges

 

Agencies may decide that an applicant is liable to pay a charge in respect
of a request for access to documents. If the Department decides that you
are liable to pay a charge, we will send you a preliminary assessment of
the charge as soon as possible.

 

Publication of documents

 

Please note that information released under the FOI Act may later be
published online on our disclosure log at
[1]https://www.pmc.gov.au/government/depart...,
subject to certain exceptions. If you think you might wish to raise any
objections to the publication of any of the information which may be
released to you please contact us by email at [2][DPMC request email].  If you
do wish to object to the publication of information, you would need to
provide supporting reasons.

 

Exclusion of officers’ names and contact details

 

For documents that fall within scope of the request, it is the
Department’s policy to withhold:

·       any person’s signature;

·       the names and contact details of Australian Public Service
officers not in the Senior Executive Service (SES);

·       the mobile or direct numbers of SES officers;

·       the names and contact details of Ministerial staff at a level
below Chief of Staff.

 

The names and other details of SES officers will not be withheld unless
there is some reason for that information to be exempt from release. If
you require signatures, the names and contact details of non-SES officers
or Ministerial staff below the level of Chief of Staff, or the mobile or
direct numbers of SES officers please let us know at [3][DPMC request email] so
the decision-maker may consider; otherwise we will take it that you agree
to that information being excluded from the scope of your request (that
is, the information will be treated as irrelevant and redacted from any
documents for release).

 

We will write again when the Department has more information.  Further
information on FOI processing can be found at the website of the Office of
the Australian Information Commissioner
[4]https://www.oaic.gov.au/freedom-of-infor....

 

Yours sincerely

 

FOI Section | Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

p. (02) 6271 5849

e. [5][DPMC request email] | w. [6]www.pmc.gov.au

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

[7]cid:image001.jpg@01D30607.6CF4DA00[8]cid:image002.jpg@01D30607.6CF4DA00[9]cid:image003.jpg@01D30607.6CF4DA00[10]cid:image004.jpg@01D30607.6CF4DA00

[11]Title: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present. -
Description: Reconcilation branding and acknowledgment: The Department
acknowledges the Traditional Custodians of Country throughout Australia
and their continuing connections to the land, waters and community. We pay
respect to their Cultures, Country and Elders both past and present.

 

 

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References

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2. mailto:[DPMC request email]
3. mailto:[DPMC request email]
4. https://www.oaic.gov.au/freedom-of-infor...
5. mailto:[DPMC request email]
6. http://www.pmc.gov.au/
7. https://twitter.com/pmc_gov_au
8. https://www.linkedin.com/company/departm...
9. https://twitter.com/indigenous_gov
10. https://www.facebook.com/indigenous.gov....

FOI, Department of the Prime Minister and Cabinet

9 Attachments

OFFICIAL

PM&C Ref: FOI/2021/118

 

Dear Trav S

 

Please see attached a Notice of Estimated Charges for your FOI request.

 

Yours sincerely

 

FOI Adviser

FOI Section| Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

[1]http://www.dcducks.com/wp-content/themes...
6271 5849
[2]http://cdn.mysitemyway.com/icons-waterma... request email]

[4]https://www.musicianswithoutborders.org/...

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

[6]cid:image001.jpg@01D30607.6CF4DA00[7]cid:image002.jpg@01D30607.6CF4DA00[8]cid:image003.jpg@01D30607.6CF4DA00 [9]cid:image004.jpg@01D30607.6CF4DA00

[10]cid:image005.jpg@01D30607.6CF4DA00

 

 

 

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References

Visible links
3. mailto:[DPMC request email]
5. http://www.pmc.gov.au/
6. https://twitter.com/pmc_gov_au
7. https://www.linkedin.com/company/departm...
8. https://twitter.com/indigenous_gov
9. https://www.facebook.com/indigenous.gov....

Dear FOI,
Thank you for your email.
We are happy to pay our way.
Can I ask - do you need to seek clarification on the request before we proceed with payment?
Thank you for your time.
Yours sincerely,
Trav S

FOI, Department of the Prime Minister and Cabinet

8 Attachments

OFFICIAL

Dear Trav S,

 

In regards to your below question, the Department considers your FOI
request (PM&C reference FOI/2021/118) to be sufficiently clear to enable
us to identify the documents being requested.

 

Please let us know if you have any other questions about this matter.

 

Yours sincerely

 

FOI Adviser

FOI and Privacy Section| Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

[1]http://www.dcducks.com/wp-content/themes...
6271 5849 |
[2]http://cdn.mysitemyway.com/icons-waterma... request email]
|
[4]https://www.musicianswithoutborders.org/...

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

[6]cid:image001.jpg@01D30607.6CF4DA00[7]cid:image002.jpg@01D30607.6CF4DA00[8]cid:image003.jpg@01D30607.6CF4DA00 [9]cid:image004.jpg@01D30607.6CF4DA00

[10]cid:image005.jpg@01D30607.6CF4DA00

 

show quoted sections

Dear FOI,
Thank you for your email.
Deposit paid. We ask you consider reducing the remaining fees in accordance with the FOI Act. Please consider the personal concession details already provided to your department. Please consider the legislative purpose and objects of the FOI Act and the information below when considering our request for a reduction in the remaining fees.
FOI reveals significant deficits in your department's administrative decision-making related to the Humanitarian Overseas Service Medal. Your department was provided with credible documentary evidence indicative of significant deficits in their decision-making and advice to government. Your department denies reasonable external review requests.
The public have a duty to scrutinise government decision-making and report their findings to the relevant authority in such circumstances. Please assist us and enable public scrutiny by releasing the requested information without further charge.
Yours sincerely,
Trav S

FOI, Department of the Prime Minister and Cabinet

9 Attachments

OFFICIAL

FOI/2021/118

 

Dear Trav S,

 

Thank you for the payment of your deposit for your FOI request
FOI/2021/118. Your receipt is attached.

 

As your payment was received on 3 August 2021, we recommenced processing
your request on that day.

 

A decision for this request is currently due on 23 August 2021.

 

Yours sincerely

 

FOI Section| Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

[1]http://www.dcducks.com/wp-content/themes...
6271 5849
[2]http://cdn.mysitemyway.com/icons-waterma... request email]

[4]https://www.musicianswithoutborders.org/...

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

[6]cid:image001.jpg@01D30607.6CF4DA00[7]cid:image002.jpg@01D30607.6CF4DA00[8]cid:image003.jpg@01D30607.6CF4DA00 [9]cid:image004.jpg@01D30607.6CF4DA00

[10]cid:image005.jpg@01D30607.6CF4DA00

 

 

 

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References

Visible links
3. mailto:[DPMC request email]
5. http://www.pmc.gov.au/
6. https://twitter.com/pmc_gov_au
7. https://www.linkedin.com/company/departm...
8. https://twitter.com/indigenous_gov
9. https://www.facebook.com/indigenous.gov....

FOI, Department of the Prime Minister and Cabinet

8 Attachments

OFFICIAL

PM&C Reference: FOI/2021/118

 

Dear Trav S

 

We write in relation to your FOI request dated 20 July 2021, received by
the Department of the Prime Minister and Cabinet (our ref: FOI/2021/118).

 

The due date for a decision on your FOI request is currently Monday 23
August 2021. Regrettably, despite our best endeavours, we may not be in a
position to finalise a decision on your FOI request by then. We therefore
seek your agreement to an extension of time to the processing period by 4
days to Friday 27 August 2021, under section 15AA of the FOI Act.

We would be grateful if you could let us know if you agree to our request
for the extension of time by close of business today 20 August 2021, or as
soon as you can.

 

Yours sincerely

 

FOI Adviser

FOI and Privacy Section| Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

[1]http://www.dcducks.com/wp-content/themes...
6271 5849
[2]http://cdn.mysitemyway.com/icons-waterma... request email]

[4]https://www.musicianswithoutborders.org/...

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

[6]cid:image001.jpg@01D30607.6CF4DA00[7]cid:image002.jpg@01D30607.6CF4DA00[8]cid:image003.jpg@01D30607.6CF4DA00 [9]cid:image004.jpg@01D30607.6CF4DA00

[10]cid:image005.jpg@01D30607.6CF4DA00

 

 

 

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References

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3. mailto:[DPMC request email]
5. http://www.pmc.gov.au/
6. https://twitter.com/pmc_gov_au
7. https://www.linkedin.com/company/departm...
8. https://twitter.com/indigenous_gov
9. https://www.facebook.com/indigenous.gov....

Dear FOI,
Thank you for your email.
We are happy to agree to an extension, thanks for letting us know.
Have a great weekend.
Yours sincerely,
Trav S

FOI, Department of the Prime Minister and Cabinet

9 Attachments

OFFICIAL

PM&C Reference: FOI/2021/118

 

Dear Trav S

 

Please see attached the decision in relation to your FOI request.

 

Yours sincerely

 

FOI Adviser

FOI and Privacy Section| Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

[1]http://www.dcducks.com/wp-content/themes...
6271 5849
[2]http://cdn.mysitemyway.com/icons-waterma... request email]

[4]https://www.musicianswithoutborders.org/...

One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

[6]cid:image001.jpg@01D30607.6CF4DA00[7]cid:image002.jpg@01D30607.6CF4DA00[8]cid:image003.jpg@01D30607.6CF4DA00 [9]cid:image004.jpg@01D30607.6CF4DA00

[10]cid:image005.jpg@01D30607.6CF4DA00

 

 

 

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References

Visible links
3. mailto:[DPMC request email]
5. http://www.pmc.gov.au/
6. https://twitter.com/pmc_gov_au
7. https://www.linkedin.com/company/departm...
8. https://twitter.com/indigenous_gov
9. https://www.facebook.com/indigenous.gov....

Thank you for your email. The department has not provided a schedule of documents. Can we ask for a schedule listing each document, with a reference number, the document's date and the exemptions claimed. Can we ask the department list the documents related to Part 1 and Part 2 of our FOI request separately.

We contend the matters are clearly in the public interest. This is evidenced by the many tens of thousands of Australian's demonstrably interested in the Herald Sun's recent exclusive 'the forgotten exSAS band of brothers hired by Australia during the Iraq war'

We contend the legal professional privilege claim is overstated. Some of the material is already in the public domain and has been transmitted to many persons over the years. We intend challenging your decision in accordance with the FOI Act and would be grateful if you can provide the schedule to assist us in doing this. Thank you for your time. Trav S

FOI, Department of the Prime Minister and Cabinet

OFFICIAL
Dear Trav S

Thank you for your email. Regarding the first part of your email, we have checked the decision letter we sent to you and can advise that the schedule appears on the last page at Attachment A.

Regarding the rest of your email, please refer to the information on page 7 of the decision letter which sets out your review rights.

Yours sincerely

FOI Adviser
FOI and Privacy Section| Legal Policy Branch
Government Division | Department of the Prime Minister and Cabinet
(02) 6271 5849
[DPMC request email]
www.pmc.gov.au
One National Circuit Barton ACT 2600 | PO Box 6500 CANBERRA ACT 2600

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Thank you for your email. You are correct, we did not see the 'Schedule of Documents' included as Attachment A. Thank you for bringing this to our attention. Unfortunately the Schedule does not provide the document's dates. Nor does it separate the documents into those which apply to Part 1 and Part 2 of our FOI request. We will be grateful if you will agree to amend the Schedule so. This will allow us to challenge the decision-maker's FOI exemptions claim in a more streamlined and efficient manner. This should reduce the complexity of our challenge and therefore reduce the burden on your department's resources. Thank you for your time. Yours sincerely, Trav S

Part 1 regarding the Section 42(1) exemption claimed over documents 2-3, 5-12, 19-20 and 26

Section 42(2) of the FOI Act provides that a document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim. The FOI Guidelines at paragraph 5.144 confirms that a document is not exempt if the person entitled to claim LPP waives that privilege. Section 5.145 provides LPP is the client’s privilege to assert or waive. Section 5.146 provides waive of privilege may be express or implied.

The Australian Agency for International Development (AusAID) was one of the stakeholders entitled to claim LPP over some of the requested documents. AusAID decided to release documents to the public some time ago.

Please refer to your department’s 19 March 2012 email ‘Subject: HOSM for CRG Contractors in Iraq [SEC=UNCLASSIFIED]’ to AusAID informing ‘here’s draft text for your consideration, that we propose to brief the new PSPM, Senator Jan McLucas with soon’. Please also refer to your department’s 11 April 2012 email ‘Subject: Humanitarian Overseas Service Medal (Iraq) Declaration [SEC=UNCLASSIFIED] providing a written agreement with AusAID to ‘settle the declaration on the basis of thatt advice, and brief PSPM next week. Fingers crossed!’.

The FOI Guidelines at Section 5.147 provide the High Court has held that waive of LPP will occur where there earlier disclosure is inconsistent with the confidentiality protected by the privilege. This inconsistency test has been more recently affirmed by the High Court as the appropriate test for determining whether privilege has been waived. It is immaterial that the client did not intend to waive the privilege.

The FOI Guidelines at paragraph 5.141 recommends agencies and minister consider that in ‘Taggart and Civil Aviation Safety Authority (FOI) [2016] AATA 327, Forgie DP decided that additional material that was not the substantive content of privileged emails, such as the email subject line, address block, salutation, classification, closing words and signature block was not privileged material and therefore not exempt under s42.’ We assure the purpose of the FOI Act will be served by disclosing edited copies of the documents - even if editing would leave only a skeleton of the former document. This will provide substance to due public scrutiny of government’s administrative decision-making.

The FOI Guidelines at paragraph 5.142 provides that LPP does not apply to a communication that is not confidential. Paragraph 5.146 provides privilege may be waived in circumstances where the communication has been widely distributed, the content of the legal advice in question has been disclosed, and a person has publicly announced their reliance on the legal advice in question in a manner that discloses the substance of the legal advice.

Relevantly documents titled ‘Subject: HOSM for CRG Contractors in Iraq [SEC=UNCLASSIFIED]’ and ‘Subject: Humanitarian Overseas Service Medal (Iraq) Declaration [SEC=UNCLASSIFIED] were widely distributed. Including to members of the public, parliamentarians, officials, academics and journalists. The content of the advice, including the text of the proposed ‘amendment of HOSM (Iraq) declaration 2004 to extend to specific commercial contractors’ has been disclosed. The department's recommendations for the PSPM, and the amendment’s purpose, key points and other details are disclosed. Very relevantly, they support the medal's extension. Members of the public have publicly announced their reliance on the substance of the legal advice.

Part 2 regarding conditional exemptions claimed under Sections 47C(1), 47E(d), 47F(1) and 47G(1) of the FOI Act.

After careful consideration of all relevant factors, we have decided that, on balance, the factors favouring disclosure outweigh the factors against disclosure. Accordingly, we are of the view that disclosure of the requested documents, would be in the public interest. Disclosure will promote Australia's representative democracy by contributing towards increasing public participation in government processes, with a view to promoting better-informed decision-making; and increasing scrutiny, discussion, comment and review of the government's activities.

On 11 April 2012, the department provided a written agreement to AusAID to perform an act. Namely ‘settle the declaration on the basis of that advice, and brief PSPM next week. Fingers crossed!’. Relevantly at that time the department’s recommendations, key points and other details favourably supported the medal’s extension. Of significant concern, FOI inquiries subsequently revealed the department failed to act in accordance with their agreement. As a result, PSPM McLucas was not briefed and a proposed legislative amendment was unreasonably withheld from the lawful decision-maker.

Failing to comply with a written agreement, and withholding documents from a Minister may be serious breaches of the Australian Public Service Act. APS employees must act honestly and with integrity and with care and diligence. Members of the public adversely affected by this omission are entitled to scrutinise the decisions leading to the omission. The department has not satisfactorily explained why they failed to act and we seek to documentary evidence from that time to scrutinise the department's decision-making.

To reduce the complexity and burden please exclude the following documents from the review and remove them from the Schedule of Documents. Of the documents that remain, please seperate them in line with the original FOI request so it is clear which documents relate to which PSPM's tenure. Thank you for your time.

1. HOSM application forms & attachments submitted by the public
2. The 5 December 2012 emails between a member of the public and the department with ‘Subject: Thanks For Update’
3. The 2013 letter from a member of the public seeking Foreign Minister Carr's ‘support for a proposed amendment to the Humanitarian Overseas Service Medal (HOSM) declaration for Iraq.’
3. The 22 April 2013 letter titled ‘Humanitarian Overseas Service Medal’ from Senator Adam Bandt MP to Dr Leigh
4. The 27 May 2013 letter Reference C13/27986 from PSPM Dr Leigh to Adam Bandt MP
5. The 27 May 2013 letter from PSPM Dr Leigh seeking the Foreign Minister's input
6. The 26 June 2013 letter from the Minister for Foreign Affairs Bob Carr to PSPM Dr Leigh

FOI, Department of the Prime Minister and Cabinet

4 Attachments

OFFICIAL

Dear Trav S

 

Thank you for your email below, received by the Department of the Prime
Minister and Cabinet (the Department).

 

It is not clear in respect of which decision you are seeking internal
review. Please provide the Department’s reference number for the decision,
or provide a copy of the decision, in respect of which you are seeking
internal review.

 

Yours sincerely

 

FOI Adviser | FOI Section[]

Department of the Prime Minister and Cabinet

p. (02) 6271 5849

Ngunnawal Country, One National Circuit  Barton  ACT  2600  |  PO Box
6500  CANBERRA  ACT  2600
e. [1][email address]  w. [2]pmc.gov.au

[3]cid:image001.jpg@01D78E24.FF2DAFB0[4]cid:image002.jpg@01D78E24.FF2DAFB0

[5]cid:image003.jpg@01D78E24.FF2DAFB0 The
Department
acknowledges
and pays
respect to
the past,
present and
emerging
Elders and
Traditional
Custodians
of Country,
and the
continuation
of cultural,
spiritual
and
educational
practices of
Aboriginal
and Torres
Strait
Islander
peoples.

 

show quoted sections

FOI, Department of the Prime Minister and Cabinet

4 Attachments

OFFICIAL

Dear Trav S

 

Thank you for your email below, received by the Department of the Prime
Minister and Cabinet (the Department).

 

It is not clear in respect of which decision you are seeking internal
review. Please provide the Department’s reference number for the decision,
or provide a copy of the decision, in respect of which you are seeking
internal review.

 

Yours sincerely

 

FOI Adviser | FOI Section[]

Department of the Prime Minister and Cabinet

p. (02) 6271 5849

Ngunnawal Country, One National Circuit  Barton  ACT  2600  |  PO Box
6500  CANBERRA  ACT  2600
e. [email address]  w. [1]pmc.gov.au

[2]cid:image001.jpg@01D78E24.FF2DAFB0[3]cid:image002.jpg@01D78E24.FF2DAFB0

[4]cid:image003.jpg@01D78E24.FF2DAFB0 The
Department
acknowledges
and pays
respect to
the past,
present and
emerging
Elders and
Traditional
Custodians
of Country,
and the
continuation
of cultural,
spiritual
and
educational
practices of
Aboriginal
and Torres
Strait
Islander
peoples.

 

show quoted sections

Hi, the department identified 31 documents meeting the terms of this request. Please refer to FOI/2021/118 and in particular the Schedule of Documents.