Email - Subject: Humanitarian Overseas Service Medal (Iraq) Declaration [SEC=UNCLASSIFIED]

Waiting for an internal review by Department of the Prime Minister and Cabinet of their handling of this request.

Dear Department of the Prime Minister and Cabinet,

On 11 June 2021, we requested “a copy of all documents related to a file titled "Humanitarian Overseas Service Medal Amendment Regulation: Iraq clasp".

On 12 July 2021, Mr Peter Rush stated “I am satisfied that all reasonable steps have been taken to find documents relevant to the FOI request, and that no documents relevant to the FOI request exist in the Department”.

On 10 April 2012, Mr Rush received the following email “Subject: Humanitarian Overseas Service Medal (Iraq) Declaration [SEC=UNCLASSIFIED]”.

Under the FOI Act, please provide a copy of that email. Including all correspondence and attached documents.

Thank you.

Yours faithfully,

Trav S

FOI, Department of the Prime Minister and Cabinet

5 Attachments

OFFICIAL

FOI/2021/111

 

Dear Trav S

 

Thank you for your email dated 14 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:

 

On 11 June 2021, we requested “a copy of all documents related to a file
titled "Humanitarian Overseas Service Medal Amendment Regulation: Iraq
clasp".

 

On 12 July 2021, Mr Peter Rush stated “I am satisfied that all reasonable
steps have been taken to find documents relevant to the FOI request, and
that no documents relevant to the FOI request exist in the Department”.

 

On 10 April 2012, Mr Rush received the following email “Subject: 
Humanitarian Overseas Service Medal (Iraq) Declaration
[SEC=UNCLASSIFIED]”.

 

Under the FOI Act, please provide a copy of that email.  Including all
correspondence and attached documents.

 

Timeframe for receiving your decision

 

We received your request on 14 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 13 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.

 

 

 

show quoted sections

References

Visible links
1. https://www.pmc.gov.au/government/depart...
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

7 Attachments

OFFICIAL

Dear Trav S

 

Please find attached the decision in relation to your request to the
Department of the Prime Minister and Cabinet under the Freedom of
Information Act 1982.

 

Yours sincerely

 

FOI Section | Legal Policy Branch

Government Division | Department of the Prime Minister and Cabinet

p. (02) 6271 5849

e. [1][DPMC request email] | w. [2]www.pmc.gov.au

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

[3]cid:image001.jpg@01D30607.6CF4DA00[4]cid:image002.jpg@01D30607.6CF4DA00[5]cid:image003.jpg@01D30607.6CF4DA00[6]cid:image004.jpg@01D30607.6CF4DA00

[7]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.

 

 

 

show quoted sections

References

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

Dear FOI
Thank you for providing a schedule listing the 5 documents
Have a great weekend
Yours sincerely
Trav S

Dear FOI, after careful consideration of all relevant factors, we consider the public interest for disclosure outweighs the public interest against disclosure. We therefore request an internal review.

As a minimum please release the documents with material that is not the substantive content of privileged information i.e. the email subject line, address block, salutation, classification, closing words and signature block. Relevantly in Taggart and Civil Aviation Safety Authority (FOI) [2016] AATA 327 Forgie DP decided that such information was not privileged and therefore not exempt under section 42 of the FOI Act.

Within the email chain, please refer to PMC’s 11 April 2012 email providing the department's written agreement to AusAID to ‘settle the declaration on the basis of that advice, and brief PSPM next week. Fingers crossed!’.

FOI Act section 42(2) confirms a document is not exempt if the person entitled to claim the LPP waives the privilege. AusAID was one of the stakeholders entitled to claim LPP. AusAID decided to release documents to the pubic in 2012. A DFAT official unfamiliar with this case advised 'they do not waive LPP in this matter’ however that advice came seven years after AusAID's disclosure.

FOI Act Guidelines section 5.129 states at common law, determining whether a communication is privileged includes consideration of ‘whether the communication was for the purpose of giving or receiving legal advice’. Section 5.142 states ‘LPP does not apply to a communication that is not confidential’. Section 5.1462 states ’The High Court has held that waiver of LPP will occur where the earlier disclosure is inconsistent with the confidentiality protected by the privilege… It is immaterial that the client did not intend to waive privilege.’ Section 5.146 states that LPP ‘may be waived in circumstances where the communication in question has been widely distributed’

The 11 April 2012 email communicates no explicit or implicit legal advice or legal question. An independent statutory government agency decided to release the documents to the public in 2012. Since that time the documents were widely distributed to persons including, but not limited to, Federal Members of Parliament and their staff; government officials from various departments, international academics, corporate executives, lawyers, journalists, public stakeholders and members of the public.

On 22 April 2013 for an example, the Deputy Leader of the Australian Greens wrote to PSPM Leigh referring to the documents. Around this time DFAT and PMC also received public correspondence citing direct quotes with footnoted references to the documents. Most recently, on 15 Aug 2021, Defence reporter Charles Miranda cited direct quotes from the documents in a Herald Sun Sunday exclusive story titled ’The forgotten ex-SAS band of brothers hired by Australia during the Iraq War’. The story was read by at least several tens of thousands of people in the week following its publication thereby demonstrating the public interest.

Disclosure will achieve the FOI Act's fundamental objects. It will promote Australia’s representative democracy by increasing public participation in government processes, with a view to promoting better-informed decision making. It will Australia’s promote Australia's representative democracy by increasing due public scrutiny, discussion, comment and review of the department's administrative decision-making. Thank you for your time. Yours sincerely, Trav S