Legal advice on Gaza
Dear Department of Foreign Affairs and Trade,
I am after all documents, reports & communication that relate to the legal advice the Foreign Minister Penny Wong has received in regarding the fighting, bombing and blockade of Gaza in October 2023
Yours faithfully,
Moe
Dear Moe
We refer to your below request dated 15 October 2023, in which you have sought access to documents held by the Department of Foreign Affairs and Trade under the Freedom of Information Act 1982 (FOI Act).
You have requested access to:
"... all documents, reports & communication that relate to the legal advice the Foreign Minister Penny Wong has received in regarding the fighting, bombing and blockade of Gaza in October 2023"
Documents which would be the subject of your request would be in the possession of the Office of the Minister for Foreign Affairs (FMO).
As such, your request was transferred to the FMO on 18 October 2023 under section 16 of the FOI Act so that that they can make a decision on your request for access to their documents.
Your application was received on 15 October 2023, and the 30 day statutory period for processing your request will commence from that date.
An officer from the FMO will be writing to you directly concerning your request.
Kind regards
DFAT FOI Team
_______________________________
Freedom of Information Section
Public Interest Law Branch | Regulatory and Legal Policy Division
Department of Foreign Affairs and Trade
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(c) Kim Hill, Among Women (2011)
We acknowledge the Traditional Custodians of Country throughout Australia, and their continuing connection to land, waters and community. We pay our respects to all First Nations peoples, their cultures and to their Elders, past, present and emerging.
OFFICIAL
Dear Moe
I am writing to seek your agreement under section 15AA of the FOI Act to an extension of 30 days to finalise your request, which is currently due on 15 November date, bringing the due date to 15 December.
While our office has made good progress processing your request, we are unable to meet the current timelines imposed under the FOI Act.
I would be grateful if you could please advise in writing if you agree to the proposed extension of time by COB 14 November 2023. In the event you do not respond, the department may apply to the Office of the Australian Information Commissioner (OAIC) seeking an extension to the statutory timeframe under s15AB of the FOI Act.
Kind regards
FMO FOI team.
Our reference: RQ23/05624
Agency reference: LEX 9262
Minister for Foreign Affairs
Moe
Extension of time under s 15AB
Dear Parties,
Please find attached an extension of time decision relating to Moe’s FOI
request with the Minister for Foreign Affairs.
Regards,
[1][IMG] Hannah Holswilder
Director, Freedom of Information Branch
Office of the Australian Information Commissioner
Adelaide | GPO Box 5288 Sydney NSW 2001
E [2][email address]
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OFFICIAL
Good afternoon.
Please see attached correspondence in relation to your request under the
FOI Act.
Kind regards
Office of the Minister for Foreign Affairs
Daniel S Day left an annotation ()
With respect, I don't think it is open to Moe to apply for internal review.
Unless I have missed something, it seems to me that the Minister's decision was due on 15 December 2023. That date takes into account the extension of time that was provided to the Minister by Hannah Holswilder: https://www.righttoknow.org.au/request/1....
In failing to provide Moe with the decision by the due date, the Minister is taken to have refused access to the requested documents: FOI Act, s 15AC(3). Thus, a deemed refusal decision has come into effect.
Where a deemed refusal decision is in effect, internal review is not available.
As I see it, if Moe would like to apply for review, he must apply for IC review.
An issue that Moe should, in my opinion, prepare himself for is the prospect of many of the documents requested being exempt documents under section 42 of the FOI Act.
As CR has noted, all things being equal, it'll probably take a good four to five years for the information commissioner or the FOI commissioner to actually get around to making a decision ... At the moment, the acting FOI commissioner, Toni Pirani, is handling IC review requests from 2019: see, for example - https://www.austlii.edu.au/cgi-bin/viewd....
It's a sorry state of affairs made the more depressing by the indifference of most Australians to their rights under the law to documents of the Commonwealth.
CR left an annotation ()
I disagree that disclosure would have a substantial adverse effect on the operations of the department.
I also disagree that the decision-maker properly considered the FOI Guidelines, particularly [6.52] – [6.88].
I think it would be beneficial to seek an internal review. And then once DFAT affirms their original decision (most likely) I think you have grounds for an IC Review.
If we are lucky we might see the contents of these documents in 4-5 years!