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OFFICIAL DPC20/0418 16 June 2020 GPO Box 2343 Adelaide SA 5001 DX 56201 Tel 08 8226 3500 Fax 08 8226 3535 Mr Kyam Maher MLC www.dpc.sa.gov.au Parliament House North Terrace ADELAIDE SA 5000 Sent by email: [email protected] Dear Mr Maher Freedom of information application I refer to your request received by the Department of the Premier and Cabinet (DPC) seeking access under section 13 of the Freedom of Information Act 1991 (the Act) to: Copies of any and all documents (including but not limited to hard copy or electronic briefings, minutes, reports, emails, letters, meeting agendas, diary entries, event attendance records and any other correspondence) that mention or reference in anyway the Aboriginal Lands Trust and/or ALT. Date range – 18/03/2018 to 11/03/2020 In conjunction with your office, this scope was later refined to request documents from the review conducted by the Aboriginal Lands Parliamentary Standing Committee (ALPSC) into the Aboriginal Lands Act 2013 (the ALT Act), and the Aboriginal Affairs and Reconciliation (AAR) Division’s review into the Aboriginal Lands Trust (ALT). Under the Act, an agency has 30 days to respond to a freedom of information request. As DPC did not respond to your request within the time frame required, the department is deemed to have refused you access to all documents relevant to your application. However, I have determined to process the request as if the statutory time frame had been met. A total of 47 documents were identified as answering the terms of your application and I have determined as follows: • I grant you access in full to 22 documents, copies of which are enclosed; • I grant you access in part to 20 documents, copies of which are enclosed, and • I refuse you access to 5 documents. Please refer to the attached schedule that describes each document and sets out my determination and reasons in summary form. Documents released in full 2, 3, 6 – 8, 10, 13, 14, 17, 21, 24, 27, 29, 31, 34, 35, 39, 40, 43 and 45 - 47 OFFICIAL Documents released in part Documents 1, 9, 11, 12, 16, 18 – 20, 22, 25, 26, 30, 32, 33, 36 – 38, 41, 42 and 44 Documents 1, 16, 19 and 37 contain information relating to the personal affairs of a third party, namely a mobile phone number. Under clause 6(1) of Schedule 1 to the Act, information is exempt if releasing it would involve the ‘unreasonable disclosure of information concerning the personal affairs of any person’. I have considered that the application of clause 6(1) requires two elements, one that the information contains the personal affairs of that person; and secondly that disclosure would be unreasonable and contrary to public interest. I have determined that this information falls within the category of ‘personal affairs’ as listed under section 4(1) of the Act, thereby meeting the first elements of this clause. Further, I have considered whether the disclosure of this information would be unreasonable. In doing so, I have considered the relevance of this information to the public and the likelihood as to whether the person in question would consent to disclosure. I have concluded that this information was likely obtained in confidence and through measures which would otherwise make it unavailable to the public. I have considered the factors in favour of public interest and determined that these factors are outweighed by the need to maintain personal confidentiality in this instance. Therefore, I have determined that this information meets the requirements of clause 6(1) and is thereby exempt pursuant to this clause. Documents 18-20, 22, 23 25, 26, 28, 30, 32, 33, 36, 38, 41 and 42 contain opinion, advice or recommendation that has been obtained, prepared or recorded in the course of, or for the purpose of, the decision-making functions of the Government. The documents are iterations of draft briefings to the Premier advising him, as Minister for Aboriginal Affairs, on the recommendations set by the ALPSC’s review into the operations of the ALT Act. In considering the public interest I have taken into account the objects of the Act, which favour release. I also acknowledge that there is some public interest in whether officials from AAR endorse or oppose the recommendations of the ALPSC. On the other hand, I have considered there is a need for AAR to provide the Premier with unfettered advice to inform his decisions on whether to support or oppose the recommendations of the review, and that this need may be jeopardised by disclosure. It is important that these ideas can be debated at a formative level without fear of undue public scrutiny. I have also considered that the opinions recorded do not represent the final and fully considered views of the Division, and that there is some danger of them being taken out of context. I consider that these factors outweigh those in favour of release and for this reason I refuse access to this information, pursuant to clause 9(1) to the Act. Documents 9, 11 and 12 contain speaking notes preparatory to a parliamentary appearance. Under clause 17 of Schedule 1 to the Act, information is exempt from disclosure if it would infringe the privilege of Parliament. This information is protected by parliamentary privilege and I have therefore determined to remove this information pursuance to clause 17(c). Document 44 contains sections not relevant to your application which have been removed. DPC20/0418 Page 2 of 5 Documents refused in full Document 4, 5, 15, 23 and 28 Documents 23 and 28 consists of opinion, advice or recommendation that has been obtained, prepared or recorded in the course of, or for the purpose of, the decision- making functions of the Government. The documents are iterations of draft briefings to the Premier advising him, as Minister for Aboriginal Affairs, on the recommendations set by the ALPSC’s review into the operations of the ALT Act. In considering the public interest I have taken into account the objects of the Act, which favour release. I also acknowledge that there is some public interest in whether officials from AAR endorse or oppose the recommendations of the ALPSC. On the other hand, I have considered there is a need for AAR to provide the Premier with unfettered advice to inform his decisions on whether to support or oppose the recommendations of the review, and that this need may be jeopardised by disclosure. It is important that these ideas can be debated at a formative level without fear of undue public scrutiny. I have also considered that the opinions recorded do not represent the final and fully considered views of the Division, and that there is some danger of them being taken out of context. I consider that these factors outweigh those in favour of release and for this reason I refuse access to this information, pursuant to clause 9(1) to the Act. Pursuant to Division 1, Section 20 to the Act, an agency may refuse access to a document if the document is available for inspection at that or some other agency (whether as part of a public register or otherwise). Documents 4 and 5 are copies of the ALT Act 1966 and ALT Act 2013. These documents are available to view for inspection in their entirety online at https://www.legislation.sa.gov.au/LZ/C/A/ABORIGINAL%20LANDS%20TRUST%20ACT %202013.aspx. Document 15 is the official Hansard Report into the ALPSC’s review to the ALT Act and available for inspection in its entirety at https://www.parliament.sa.gov.au/en/Committees/Committees-Detail and clicking on the Aboriginal Lands Parliamentary Standing Committee link. It is for these reasons I have therefore determined to refuse the release of these documents pursuant to section 20(1)(b) to the Act. Exemptions Clause 6 – Documents affecting personal affairs (1) A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead). Clause 9 – Internal working documents (1) A document is an exempt document if it contains matter— (a) that relates to— (i) any opinion, advice or recommendation that has been obtained, prepared or recorded; or DPC20/0418 Page 3 of 5 (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and (b) the disclosure of which would, on balance, be contrary to the public interest. Clause 17 – Documents subject to contempt etc A document is an exempt document if it contains matter the public disclosure of which would, but for any immunity of the Crown— … (a) infringe the privilege of Parliament 20—Refusal of access (1) An agency may refuse access to a document— (a) if it is an exempt document; or (b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge. FOI Disclosure Log In compliance with Premier and Cabinet Circular PC045 - Disclosure Logs for Non- Personal Information Released through Freedom of Information (PC045), DPC is now required to publish a log of all non-personal information released under the Freedom of Information Act 1991. In accordance with this Circular, any non-personal information determined for release as part of this application, may be published on the DPC website.
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