fa 231100901 Decision Letter.PDF.pdf

1 August 2024
Mr O Smith
BY EMAIL:  xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 23/11/00901
File Number:
FA23/11/00901
Dear Mr Smith
Freedom of Information (FOI) request – Access Decision
On 16 November 2023, the Department of Home Affairs (the Department) received a request for
access to documents under the Freedom of Information Act 1982 (the FOI Act).
The purpose of this letter is to provide you with a decision on your request for access under the
FOI Act.
1
Scope of request
You have requested access to the following documents:
Original Scope 16 November 2023
Under the FOI Act, I am seeking all correspondence over the period 1/10/23 to 16/11/23
between the Department and the office of the Minister for Immigration and Citizenship in
relation to the visa status at the time of release into the community of the detainees in
immigration detention who were to be released as a result of the High Court’s decision in
the NZYQ case.

Amended Scope 7 December 2023
I am seeking all correspondence over the period 1/10/23 to 16/11/23 between the
Department and the office of the Minister for Immigration and Citizenship in relation to the
visa status of the detainees released into the community following the NZYQ judgement.
2
Authority to make decision
I am an officer authorised under section 23 of the FOI Act to make decisions in respect of
requests to access documents or to amend or annotate records.

808 Bourke Street Melbourne 3001
xxx@xxxxxxxxxxx.xxx.xx  • www.homeaffairs.gov.au

3
Relevant material
In reaching my decision I referred to the following:
•  the terms of your request
•  the documents relevant to the request
•  the FOI Act
•  Guidelines published by the Office of the Information Commissioner under section 93A
of the FOI Act (the FOI Guidelines)
•  advice from Departmental officers with responsibility for matters relating to the
documents to which you sought access
4
Documents in scope of request
The Department has identified 43 documents as falling within the scope of your request. These
documents were in the possession of the Department on 16 November 2023 when your request
was received.
Attachment A is a schedule which describes the relevant documents and sets out my decision
in relation to each of them.
5
Decision
The decision in relation to the documents in the possession of the Department which fall within
the scope of your request is as follows:
•  to release in part, two documents identified as falling within the scope of your request,
with material exempt under sections 33(a)(i ), 42(1), 47C(1) and 47F, and irrelevant
material deleted under section S22(1)(a)(ii)
•  to release in part, one document identified as falling within the scope of your request,
with material exempt under sections 42(1) and 47F
•  to release nine documents in full
•  to release in part, seven documents identified as falling within the scope of your request,
with irrelevant material deleted under section S22(1)(a)(ii)
•  to release in part, eight documents identified as fal ing within the scope of your request,
with material exempt under sections 42(1), 47C(1) and 47F,  and irrelevant material
deleted under section S22(1)(a)(ii)
•  to release in part, eight documents identified as fal ing within the scope of your request,
with material exempt under section 47F
•  to exempt in full, eight documents identified as fal ing within the scope of your request,
with material exempt under section 47F

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6
Reasons for Decision
Where the schedule of documents indicates an exemption claim has been applied to a document
or part of document, my findings of fact and reasons for deciding that the exemption provision
applies to that information are set out below.
6.1  Section 22 of the FOI Act – irrelevant to request
Section 22 of the FOI Act provides that if giving access to a document would disclose information
that would reasonably be regarded as irrelevant to the request, it is possible for the Department
to prepare an edited copy of the document, modified by deletions, ensuring that the edited copy
would not disclose any information that would reasonably be regarded as irrelevant to  the
request.
On 12 December 2023, the Department advised you that its policy is to exclude the personal
details of officers not in the Senior Executive Service (SES), as well as the mobile and work
telephone numbers of SES staff, contained in documents that fall within scope of an FOI request.
I have decided that parts of documents marked ‘s22(1)(a)(i )’ would disclose information that
could reasonably be regarded as irrelevant to your request. I have prepared an edited copy of
the documents, with the irrelevant material deleted pursuant to section 22(1)(a)(i ) of the FOI Act.
The remainder of the documents have been considered for release to you as they are relevant
to your request.
6.2  Section 33 of the FOI Act – Documents affecting National Security, Defence or
International Relations
Section 33(a)(i ) of the FOI Act permits exemption of a document if disclosure of the document
would, or could reasonably be expected to cause damage to the defence of the Commonwealth.
For the reasons set out below, I consider that there are real and substantial grounds for expecting
that the disclosure of the information exempted under section 33(a)(i) would cause damage to
the security of the Commonwealth.
Security
‘Security’ is a concept which can depend upon the circumstances as they exist from time to time.1
‘Security of the Commonwealth’ is defined in section 4(5) of the FOI Act as follows:
(5)  Without limiting the generality of the expression security of the Commonwealth, that expression shal
be taken to extend to:
(a)  matters relating to the detection, prevention or suppression of activities, whether within
Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth
or of any country al ied or associated with the Commonwealth; and …


1 Church of Scientology v Woodward (1982) 154 CLR 25 at [19].
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I also consider that the definition of ‘security’ in the Australian Security and Intelligence
Organisation Act 1979 is relevant.2 That Act defines ‘security’ as:
(a)  The protection of, and of the people of, the Commonwealth and the several States and
Territories from:
(i)
Espionage
(ii)
Sabotage
(iii)  Politically motivated violence
(iv)  Promotion of communal violence
(v)
Attacks on Australia’s defence system; or
(vi)  Acts of foreign interference;
Whether directed from, or committed within, Australia or not; and
(aa)  the protection of Australia’s territorial and border integrity from serious threats; and
(b)  The carrying out of Australia’s responsibilities to any foreign country in relation to a matter
mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in
paragraph (aa).
I consider that the disclosure of the information contained within parts of the documents that I
regard as exempt under s 33(a)(i) could cause damage to the security of the Commonwealth by
compromising security functions. As such I have decided that the information marked and
redacted “s33(a)(i)” in the documents is exempt from disclosure under section 33(a)(i) of the FOI
Act.
Section 33(a)(i i) of the FOI Act permits exemption of a document if disclosure of the document
would, or could reasonably be expected to, cause damage to the international relations of the
Commonwealth.
The FOI Guidelines [at 5.36] advise that:
The phrase ‘international relations’ has been interpreted as meaning the ability of the
Australian Government to maintain good working relations with other governments and
international organisations and to protect the flow of confidential information between them.
The exemption is not confined to relations at the formal diplomatic or ministerial level. It also
covers relations between Australian Government agencies and agencies of other countries.
You have requested access to documents that reveal the Department’s communications with
foreign governments regarding the possible third country resettlement of a person who was
detained in Immigration Detention. I am satisfied that revealing these details could reasonably
be expected to inhibit the good working relations between the governments of Australia and our
international partners.
Maintaining strong bilateral and multilateral relationship with foreign governments requires trust.
Integral to maintaining trusted relationships is the capacity for the Australian Government to
protect its communications with foreign governments, including by maintaining confidentiality
over the flow of  information. Officials of the respective countries, including those based at
embassies in Australia, need to be able to negotiate and share information with the assurance
that the details of their discussions or correspondence wil  not be inappropriately or unlawfully
disclosed.


2 See Staats and National Archives of Australia [2010] AATA 531 at [99].
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As such I have decided that the information redacted and marked “s33(a)(i i)” in the documents
is exempt from disclosure under section 33(a)(i i) of the FOI Act.
6.3  Section 42 of the FOI Act – Legal Professional Privilege
Section 42 of the FOI Act provides that a document is an exempt document if it is of such a nature
that it would be privileged from production in legal proceedings on the ground of legal professional
privilege.
I am satisfied that parts of the documents released to you comprise confidential communication
passing between the Department and its legal advisers, for the dominant purpose of giving or
receiving legal advice.
In determining that the communication is privileged, I have taken into the consideration the
following:  •  there is a legal adviser-client relationship
•  the communication was for the purpose of giving and/or receiving legal advice;
•  the advice given was independent and
•  the advice was given on a legal-in-confidence basis and was therefore
confidential.
The content of these documents are not part of the rules, guidelines, practices or precedents
relating to the decisions and recommendations of the Department. The documents do not fall
within the definition of operational information and remain subject to legal professional privilege.
Therefore, I have decided that the information redacted and marked “s42(1)” is exempt from
disclosure under section 42 of the FOI Act.
6.4  Section 47C of the FOI Act – Deliberative Processes
Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure
would disclose deliberative matter relating to the deliberative processes involved in the functions
of the Department.
‘Deliberative matter’ includes opinion, advice or recommendation obtained, prepared or
recorded, or consultation or deliberation that has taken place, in the deliberative processes of an
agency.
‘Deliberative processes’ generally involves “the process of weighing up or evaluating competing
arguments or considerations”3  and the ‘thinking  processes  –the process of reflection, for
example, upon the wisdom and expediency of a proposal, a particular decision or a course of
action.’4
Parts of the documents released to you contain advice, opinions and recommendations prepared
or recorded in the course of, or for the purposes of, the deliberative processes involved in the
functions of the Department. I am satisfied that this deliberative matter relates to a process that


3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
4
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
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was undertaken within government to consider whether and how to make or implement a decision
or review a program. 5
Disclosure of this deliberative information could reasonably be expected to inhibit full and frank
advice from the Department to its Minister, and, as a result, full consideration by the Government
on any potential future consideration of amendments to policy making or program management.
Section 47C(2) provides that “deliberative matter” does not include purely factual material. I am
satisfied that the deliberative material is not purely factual in nature.
I have decided that the information redacted and marked “s47C(1)” is conditionally exempt under
section 47C of the FOI Act. Access to a conditionally exempt document must generally be given
unless it would be contrary to the public interest to do so. I have turned my mind to whether
disclosure of the information would be contrary to the public interest, and have included my
reasoning in that regard at paragraph 6.6 below.
6.5  Section 47F of the FOI Act – Personal Privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure
under the FOI Act would involve the unreasonable disclosure of personal information of any
person. ‘Personal information’ means information or an opinion about an identified individual, or
an individual who is reasonably identifiable, whether the information or opinion is true or not, and
whether the information or opinion is recorded in a material form or not (see section 4 of the FOI
Act and section 6 of the Privacy Act 1988).
I consider that disclosure of the information marked 's47F' in the documents would disclose
personal information relating to third parties. The information within the documents would
reasonably identify a person, either through names, positions or descriptions of their role or
employment circumstance.
The FOI Act states that, when deciding whether the disclosure of the personal information would
be ‘unreasonable’, I must have regard to the fol owing four factors set out in s.47F(2) of the
FOI Act:
•  the extent to which the information is well known;
•  whether the person to whom the information relates is known to be (or to have been)
associated with the matters dealt with in the document;
•  the availability of the information from publicly available resources;
•  any other matters that I consider relevant.
I have considered each of these factors below.
The information relating to the third parties is not well known and would only be known to a limited
group of people with a business need to know. As this information is only known to a limited
group of people, the individuals concerned are not generally known to be associated with the
matters discussed in the document. This information is not available from publicly accessible
sources.


5
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
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I do not consider that the information relating specifically to the third parties would be relevant to
the broader scope of your request. I am satisfied that the disclosure of the information within the
documents would involve an unreasonable disclosure of personal information about a number of
individuals.
I have decided that the information referred to above is conditionally exempt under section 47F
of the FOI Act. Access to a conditionally exempt document must generally be given unless it
would be contrary to the public interest to do so. I have turned my mind to whether disclosure of
the information would be contrary to the public interest, and have included my reasoning in that
regard at paragraph 6.6 below.
6.6  The public interest – section 11A of the FOI Act
As I have decided that parts of the documents are conditionally exempt, I am now required to
consider whether access to the conditionally exempt information would be contrary to the public
interest (section 11A of the FOI Act).
A part of a document which is conditionally exempt must also meet the public interest test in
section 11A(5) before an exemption may be claimed in respect of that part.
In summary, the test is whether access to the conditionally exempt part of the document would
be, on balance, contrary to the public interest.
In applying this test, I have noted the objects of the FOI Act and the importance of the other
factors listed in section 11B(3) of the FOI Act, being whether access to the document would do
any of the following:
(a)  promote the objects of this Act (including all the matters set out in sections 3 and
3A)
(b)  inform debate on a matter of public importance
(c)  promote effective oversight of public expenditure
(d)  allow a person to access his or her own personal information.
Having regard to the above I am satisfied that:
•
Access to the documents would promote the objects of the FOI Act.
•
The subject matter of the documents may  have a general characteristic of public
importance.
•
Insights into public expenditure wil  be provided through examination of the
documents.
•
You do not require access to the documents in order to access your own personal
information.
I have also considered the following factors that weigh against the release of the conditionally
exempt information in the documents:
•
Disclosure of the conditionally exempt information under section 47C of the FOI Act
could reasonably be expected to prejudice the ability of Departments across
government to provide ful  and honest advice to stakeholders in the future.
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•
A Ministerial Submission  plays an important role in the relationship between a
Department and its Minister. Its purpose is to provide frank and honest advice. It is
inherently confidential between the Department and its Minister and the preparation
of a Ministerial Submission is essentially intended for the audience of that Minister
alone. A precedent of public disclosure of advice given as a part of a Ministerial
Submission would result in:
o
concerns existing in the open and honest nature of advice being provided which
may then hinder future deliberations and decision making processes for the
Department and the Government as a whole and
o
future Ministerial Submissions being prepared with a different audience in mind,
which would compromise the quality of the advice being prepared for the
Minister.
•
I consider that the public interest in protecting the process of the provision of free and
honest confidential advice by a  Department to its Minister has, on balance, more
weight, than the public interest that might exist in disclosing the deliberative matter.
Endangering the proper working relationship that a Department has with its Minster
and its ability to provide its Minister with honest advice confidentially would be
contrary to the public interest.
•
Disclosure of personal information which is conditionally exempt under section 47F
of the FOI Act could reasonably be expected to prejudice the protection of third
parties’ right to privacy. It is firmly in the public interest that the Department uphold
the rights of individuals to their own privacy, and this factor weighs strongly against
disclosure.
•
I am satisfied that if the Department were to release personal information without that
person’s express consent to do so, it would seriously undermine public confidence in
the Department’s ability to receive, retain and manage personal information. I
consider such a loss of confidence to be against the public interest, and this factor
weighs strongly against disclosure
I have also had regard to section 11B(4) which sets out the factors which are irrelevant to my
decision, which are:
a)
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government
b)
access to the document could result in any person misinterpreting or
misunderstanding the document
c)
the author of the document was (or is) of high seniority in the agency to which the
request for access to the document was made
d)
access to the document could result in confusion or unnecessary debate.
I have not taken into account any of those factors in this decision.
Upon balancing all of the above relevant public interest considerations, I have concluded that the
disclosure of the conditionally exempt information in the documents would be contrary to the
public interest and it is therefore exempt from disclosure under the FOI Act.
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7
Legislation
A copy of the FOI Act is available at https://www.legislation.gov.au/Series/C2004A02562. If you
are unable to access the legislation through this website, please contact our office for a copy.
8
Your Review Rights
Information Commissioner review
You may apply directly to the Office of the Australian Information Commissioner (OAIC) for an
Information Commissioner review of this decision. You must apply in writing within 60 days of
this notice.  For further information about review rights and how to submit a request for a review
to the OAIC, please see https://www.oaic.gov.au/freedom-of-information/your-freedom-of-
information-rights/freedom-of-information-reviews/information-commissioner-review.
9
Making a complaint
You may complain to the Information Commissioner about action taken by the Department in
relation to your request.
Your enquiries to the Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
Email  xxxxxxxxx@xxxx.xxx.xx
There is no particular form required to make a complaint to the Information Commissioner. The
request should be in writing and should set out the grounds on which it is considered that the
action taken in relation to the request should be investigated and identify the Department of Home
Affairs as the relevant agency.
10  Contacting the FOI Section
Should you wish to discuss this decision, please do not hesitate to contact the FOI Section at
xxx@xxxxxxxxxxx.xxx.xx.

Yours sincerely

[Electronically signed]

David Arnold
Position No. 60040814
Authorised Decision Maker
Department of Home Affairs

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