5 August 2024
Oliver Smith
BY EMAIL:  xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/04/00601
File Number:
FA24/04/00601
Dear Oliver Smith
Freedom of Information (FOI) request – Revised decision under section 55G of FOI Act
Access
On 8 April 2024, the Department of Home Affairs (the Department) received a request for access
to document under the Freedom of Information Act 1982 (the FOI Act).
On 24 June 2024, the Office of the Australian Information Commissioner (OAIC) issued a notice
under section 54z of the FOI Act in which it notified the Department that the Information
Commissioner would review the deemed access refusal decision of the Department.
Following the commencement of the Information Commissioner review, the Department has now
made a revised decision on your request under section 55G of the FOI Act. The purpose of this
letter is to provide you with the Department’s revised decision.
1
Scope of request
You have requested access to the fol owing document:
Under the FOI Act, please provide a list of Ministerial Submissions sent by Home
Affairs to the office of Andrew Giles in his capacity as the Minister for Immigration
and Citizenship from the date of 22 June 2023 to present. Please include: the PDR
number, subject of brief, and date sent to the office.
2
Revocation or variation of access refusal decision
Under section 15AC of the FOI Act, the Department was deemed to have refused your request
for access to documents when it did not make a decision on your request within the statutory
timeframes prescribed by the FOI Act.

PO Box 25 Belconnen ACT 2616 • Telephone: • www.homeaffairs.gov.au

Section 55G of the FOI Act provides for the revocation or variation of an access refusal decision,
including a deemed refusal decision, during a review by the Information Commissioner.
Specifically, section 55G(1)(a) of the FOI Act provides that an agency may vary (or set aside and
substitute) an access refusal decision if the variation or substitution would have the effect of
giving access to a document in accordance with the request.
As a substantive decision on this request would have the effect of the Department giving access
to one or more documents, either in full or in part, the Department has now revised its original
deemed access refusal decision under section 55G(1)(a) of the FOI Act.
3
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 document or to amend or annotate records.
4
Relevant material
In reaching my decision I referred to the following:
•  the terms of your request
•  the document 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
document to which you sought access
•  advice from other Commonwealth Departments
5
Document in scope of request
In accordance with section 17 of the FOI Act, the Department has used its computer system to
produce one document that contains information that falls within the scope of your request. The
data produced in the document existed in the possession of the Department on 8 April 2024
when your FOI request was received.
Attachment A is a schedule which describes the relevant document and sets out my decision in
relation to each of them.
6
Decision
The decision in relation to the document in the possession of the Department which fall within
the scope of your request is as fol ows:
•  Release one document in part with deletions
7
Reasons for Decision
Detailed reasons for my decision are set out below.
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.
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7.1  Section 22 of the FOI Act – deletion of exempt material
I have decided to prepare an edited copy of the document. The grounds upon which the edited
copy of this document has been prepared is set out in the Schedule of Documents.
7.1  Section 33 of the FOI Act – Documents affecting National Security, Defence or
International Relations
Section 33(a)(i i) of the FOI Act permits exemption of information if disclosure of the material
would, or could reasonably be expected to cause damage to the international relations of the
Commonwealth.
The FOI Guidelines [at 5.29] advise that:
5.29 The term ‘security of the Commonwealth’ broadly refers to: (a) the protection of
Australia and its population from activities that are hostile to, or subversive of, the
Commonwealth’s interests.

The FOI Guidelines [at 5.36] advise that:
5.36 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 information that reveals the Department’s consultation with foreign
governments. I am satisfied that revealing the title of the submissions alone 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.
As such I have decided that the material  redacted and marked “s33(a)(ii )" is exempt from
disclosure under section 33(a)(i i) of the FOI Act.
7.2  Section 34 – Cabinet documents
Section 34(1)(a) of the FOI Act permits exemption of material if both of the following are satisfied:
(i)
the document has been submitted to the Cabinet for its consideration, or is or was
proposed by a Minister to be so submitted, and
(i )
it was brought into existence for the dominant purpose of submission for
consideration by the Cabinet
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Section 34(2) of the FOI Act exempts material that is a copy or part of or an extract of a document
that is itself exempt from disclosure under section 34(1) of the Act.
The list of ministerial submissions contains extracts of official records of the Cabinet. Accordingly,
I am satisfied that the parts of the document redacted and marked ‘s34(2)’ are exempt under
section 34(2).
Section 34(3) exempts material to the extent that disclosure would reveal a Cabinet deliberation
or decision, unless the existence of the deliberation or decision has been officially disclosed.
Deliberation has been interpreted as active debate in Parliament or its weighing up of
alternatives, with a view to reaching a decision on a matter.
I find that the parts of the list of submissions redacted and marked ‘s34(3)’ are exempted under
section 34(3) of the FOI Act, as disclosure of the relevant material would reveal Cabinet
deliberations which have not yet been official y disclosed or are available in the public domain.
7.3  Section 42 of the FOI Act – Legal Professional Privilege
Section 42 of the FOI Act provides the material is exempt 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 list of ministerial submissions released to you comprise confidential
communications 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 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 this material is not part of the rules, guidelines, practices or precedents relating
to the decisions and recommendations of the Department. The material contained within the
document does not fall within the definition of operational information and remains subject to
legal professional privilege.
Therefore, I have decided that the material redacted and marked “s42(1)” is exempt from
disclosure under section 42 of the FOI Act.
7.4  Section 47C of the FOI Act – Deliberative Processes
Section 47C of the FOI Act provides that the material 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.

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‘Deliberative processes’ generally involves “the process of weighing up or evaluating competing
arguments or considerations”1 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.’2
Parts of the material released to you within the list of submissions 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 was undertaken within government to consider whether and
how to make or implement a decision or review a program.
Disclosure of this deliberative material 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 material redacted and marked ‘s47C(1)’ is conditionally exempt under
section 47C of the FOI Act. Access to a conditionally exempt material 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 material  would be contrary to the public interest, and have included my
reasoning in that regard below.
7.5  Section 47E of the FOI Act – Operations of Agencies
Section 47E(d) of the FOI Act provides that material are conditionally exempt if disclosure would,
or could reasonably be expected to, have a substantial adverse effect on the proper and efficient
conduct of the operations of an agency.
I consider that the disclosure of the parts of the titles of the ministerial submissions  marked
“s47E(d)” would, or could reasonably be expected to, have a substantial adverse effect on the
proper and efficient conduct of the operations of the Department, by compromising its law
enforcement functions.
Any prejudice to the effectiveness of the operational methods and procedures used in
undertaking the Department’s law enforcement role would result in a substantial adverse effect
on the operations of the Department.
Any disclosure resulting in the prejudice of the effectiveness of the Department’s operational
methods and procedures would result in the need for this Department, and potentially its law
enforcement partners, to change those methods and/or procedures to avoid jeopardising their
future effectiveness.
I have decided that parts of the titles of the ministerial submission are conditionally exempt under
section 47E(d) of the FOI Act. Access to a conditionally exempt material 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 material  would be contrary to the public interest, and have included my
reasoning in that regard below.

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7.6  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 document would disclose
personal information relating to third parties. The information within the titles of the ministerial
submission 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 following 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 material relating to the third parties is not wel  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.
I do not consider that the information relating specifical y to the third parties would be relevant to
the broader scope of your request, as you are seeking access to the list of Ministerial
Submissions rather than information which wholly relates to other individuals.
I am satisfied that the disclosure of the information within the document  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 below.

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7.7  Section 47G of the FOI Act – Business Affairs
Section 47G(1)(b) conditionally exempts material where disclosure would disclose information
concerning a person in respect of his or her business or professional affairs, or concerning the
business, commercial or financial affairs of an organisation or undertaking (business information),
where the disclosure of the material could reasonably be expected to prejudice the future supply
of information to the Commonwealth.
The tiles of the list of ministerial submissions marked 's47G(1)(b)' contain information concerning
the business, commercial or financial affairs of an organisation, and there is a reasonable
likelihood that disclosure would result in a reduction in both the quantity and quality of business
information flowing to the government.
In determining whether disclosure of the information within the document would or could
reasonably be expected to adversely affect the lawful business, commercial or financial affairs of
an organisation, I have had regard to the following factors:
(a)  The extent to which the information is well known;
(b)  Whether the organisation or undertaking is known to be associated with the matters
dealt with in the documents;
(c)  The availability of the information from publicly accessible sources; and
(d)  Any other matters that the Department considers relevant.
The information contained within this document is not in the public domain, the organisations
concerned are generally known to be associated with the matters referred to in this document,
but the information is not available from publicly accessible sources. I am therefore satisfied that
the disclosure of the information would, or could reasonably be expected to, prejudice the future
supply of information to the Commonwealth from those organisations.
I have decided that the parts of the document referred to above are conditionally exempt under
section 47G 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 below.
7.8  The public interest – section 11A of the FOI Act
As I have decided that parts of the document 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.

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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 document would promote the objects of the FOI Act.
•
The subject matter of the document does have the character of public importance
and that there may be broad public interest in the document.
•
No insights into public expenditure wil  be provided through examination of the
document.
•
You do not require access to the document 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 document:
•  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 full and honest advice to stakeholders in future proposals to
legislative amendments.
•  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.

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•  Disclosure of the parts of the document that are conditional y exempt under section
47E(d) of the FOI Act could reasonably be expected to prejudice law enforcement
functions and, as a result, the operations of the Department. I consider there to be a
strong public interest in ensuring that the ability of the Department to conduct its law
enforcement functions is not compromised or prejudiced in any way. I consider that
this would be contrary to the public interest and that this factor weighs strongly against
disclosure.
•  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.
•  Disclosure of the parts of the document that are conditional y exempt under section
47G of the FOI Act could reasonably be expected to prejudice the future supply of
information to the Commonwealth from third party organisations. I consider that this
would be contrary to the public interest and that 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 document would be contrary to the public
interest and it is therefore exempt from disclosure under the FOI Act.
8
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.

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9
Your review rights
Internal review
You do not have the right to seek an internal review of this decision. This is because section
54E(b) of the FOI Act provides that, when an agency is deemed to have refused an FOI request
under section 15AC of the FOI Act, the applicant does not have the right to seek an internal
review of the deemed decision.
The Department was deemed to have refused your request under section 15AC of the FOI Act
because it did not make this decision within the statutory timeframes for the request.
While the Department has now made a substantive decision on your request, section 15AC of
the FOI Act continues to apply to your request, which means that any request you make for
internal review wil  be invalid.
Information Commissioner review
You can instead request the Australian Information Commissioner to review this decision. If you
want to request an Information Commissioner review, you must make your request to the Office
of the Australian Information Commissioner (OAIC) within 60 days of being notified of this
decision.
You can apply for an Information Commissioner review at: Information Commissioner review
application form on the OAIC website.
If you have already applied for an Information Commissioner review, there is no need to make a
new review request. The OAIC wil  contact you shortly to give you an opportunity to advise
whether you wish the review to continue, and to provide your reasons for continuing the review.
You can find more information about Information Commissioner reviews on the OAIC website.
10  Making a complaint

You may make a complaint to the Australian Information Commissioner if you have concerns
about how the Department has handled your request under the FOI Act. This is a separate
process to the process of requesting a review of the decision as indicated above.

You can make an FOI complaint to the Office of the Australian Information Commissioner
(OAIC) at: FOI Complaint Form on the OAIC website.
11  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.

Electronically signed

Alice
Position number 49000706
Authorised Decision Maker
Department of Home Affairs

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ATTACHMENT A
SCHEDULE OF DOCUMENTS
REQUEST UNDER FREEDOM OF INFORMATION ACT 1982
FOI request:   FA 24/04/00601
File Number:  FA24/04/00601

No Date of  No. of  Description
.
document  pages
Decision on release

1.

17 April
20  List of Ministerial Submissions
Exempt in  s.22(1)(a)(ii)
2024
part
s.33(a)(i i)
s.34(2)
s.34(3)
s.42(1)
s.47C(1)
s.47E(d)
s.47F(1)
s.47G(1)(b)

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Document Outline