2 July 2024
BE
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/06/00223
File Number:
FA24/06/00223
Dear BE,
Freedom of Information (FOI) request – On 3 June 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).
1
Scope of request
You have requested access to the following document:
I refer to the statement released by the Minister for Immigration Andrew Giles today in
which he stated:
“Last week, in an interview on Sky News, I stated that Operation AEGIS was using
drones. I relied on information provided by my department at the time, which has since
been clarified”
I seek access to:
1. The advice from the Department relied upon by Minister Giles (if the advice was verbal,
any notes or records of the meeting or advice being given;
2. A copy of the clarification of advice referred to in the Minister's statement.
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 document or to amend or annotate records.
3
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
808 Bourke Street Melbourne 3001
xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au
• 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
4
Document in scope of request
The Department has identified one document as fal ing within Part 1 of the scope of your request.
This document was in the possession of the Department on 3 June 2024 when your request was
received.
The Department has not identified any documents as falling within Part 2 of the scope of your
request.
Attachment A is a schedule which describes the relevant document and sets out my decision in
relation to it.
5
Decision
The decision in relation to your request is as follows:
• Release one document in part with deletions in response to Part 1; and
• Refuse Part 2 of your request under section 24A of the FOI Act.
6
Reasons for Decision
6.1 Section 24A of the FOI Act - : refusal of access to documents that cannot be found,
do not exist or have not been received
Section 24A of the FOI Act provides that the Department may refuse a request for access to a
document if all reasonable steps have been taken to find the document and the Department is
satisfied that the document does not exist.
Minister Giles has confirmed that the clarifying advice provided to him regarding the
surveil ance methods used to monitor former immigration detainees in the NZYQ cohort,
consisted of verbal briefings only. Verbal briefings do not meet the definition of a ‘document’ for
the purposes of the FOI Act.
I am satisfied that no relevant documents corresponding to part 2 of the scope of your request
were in the possession of the Department on 3 June 2024, when your FOI request was
received. As such, I am refusing your request under section 24A of the FOI Act.
6.2 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.
- 2 –
On 6 June 2024, 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 document 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
document, with the irrelevant material deleted pursuant to section 22(1)(a)(i ) of the FOI Act.
The remainder of the document has been considered for release to you as it is relevant to your
request.
6.3 Section 47E of the FOI Act – Operations of Agencies
Section 47E(d) of the FOI Act provides that documents are conditionally exempt if disclosure
would, or could reasonably be expected to, have a substantial adverse ef ect on the proper and
efficient conduct of the operations of an agency.
I consider that the disclosure of parts of the document 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.
Monitoring compliance with visa conditions is integral to the operations of the Department. Any
prejudice to the effectiveness of the operational methods and procedures used in undertaking
that 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 document are conditionally exempt under section 47E(d) 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.
6.4 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.
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:
- 3 –
(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 mat er of the document may have a general characteristic of public
importance.
•
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 parts of the document that are conditionally exempt under section
47E(d) of the FOI Act could reasonably be expected to prejudice law enforcement
functions and, as a result, the ability of the Department to protect Australia's borders.
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.
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.
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.
- 4 –
8
Your review rights
Information Commissioner review
If you want the Australian Information Commissioner to review this decision, 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 using the Information Commissioner
review application form on the OAIC website.
You can find more information about Information Commissioner reviews on the OAIC website.
9
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.
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.
[signed electronically]
Clare
Position number: 60006163
Authorised Decision Maker
Department of Home Affairs
- 5 –
