FOI Reference: LEX11466
File Reference: 24/33622
August 2024
Right to Know
By ema
il: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Tyler,
Re: Freedom of Information Request
I refer to your request received by the Department of Foreign Affairs and Trade (the department)
on 30 July 2024, for access to documents under the
Freedom of Information Act 1982 (the FOI
Act).
I am writing to provide you with a decision about your request.
I have identified documents relevant to your request. After careful consideration, I have decided
to refuse access to the document because the document is exempt in full under the FOI Act.
Request
On 30 July 2024, you sought access under the Act:
Is it possible to provide a copy of this MOU between Australia and Nauru?
'Memorandum of Understanding For Cooperation in the Management of Asylum Seekers and Related Issues'
(This is mentioned in the preamble to the "AGREEMENT BETWEEN AUSTRALIA AND NAURU CONCERNING
ADDITIONAL POLICE AND OTHER ASSISTANCE TO NAURU" ([2004] ATS 21), and paragraph 5.4 of this page-
https://aus01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.aph.gov.au%2FParliamentary_Busi
ness%2FCommittees%2FJoint%2FCompleted_Inquiries%2Fjsct%2F12may2004%2Fchapter5%23%3A~%3Atext%
3DThe%2520Committee%2520understands%2520that%2520Australia%2Cand%2520development%2520assista
nce%2520to%2520be&data=05%7C02%7Cfoi%40dfat.gov.au%7C3e45ce64bf634ad5cac708dcb05ab732%7C9b
7f23b30e8347a58a40ffa8a6fea536%7C0%7C0%7C638579150872045804%7CUnknown%7CTWFpbGZsb3d8eyJ
WIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C0%7C%7C%7C&sdata=VO2%2FJ
rhZZtpJZiYg5r5gt%2FtBktrAbRtmIygC4RqrfT4%3D&reserved=0)
Reasons
I am an officer authorised under section 23 of the FOI Act to make decisions in relation to FOI
requests.
In making my decision I have taken into account the terms of your request, the document found
to be within the scope of your request, the FOI Act, and the Australian Information
Commissioner's FOI Guidelines issued under section 93A of the FOI Act (FOI Guidelines).
R G Casey Building John McEwen Cres Barton 0221 T
+61 2
DFAT.GOV.AU
6261 1111
@DFAT
The reasons for my decision and for the application of exemptions under the FOI Act to the
document are set out below. Where I refer to sections of the FOI Act, these are available at
www.legislation.gov.au. Where I refer to parts of the FOI Guidelines, these are available at
www.oaic.gov.au/freedom-of-information/freedom-of-information-guidance-for-government-
agencies/foi-guidelines.
Damage to international relations (section 33(a)(iii) of the FOI Act)
Under section 33(a)(iii) of the FOI Act, a document is exempt if its disclosure would, or could
reasonably be expected to, cause damage to the international relations of the Commonwealth.
The phrase ‘international relations’ has been interpreted to mean 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 (FOI Guidelines,
paragraph 5.39).
This applies to documents, the disclosure of which may diminish the confidence which another
country has in Australia as a reliable recipient of confidential information, making that country or
its agencies less willing to cooperate with Australian agencies in future (FOI Guidelines, paragraph
5.42).
The expression ‘damage’ can include intangible damage, including inhibiting future negotiations
between the Australian Government and a foreign government, or the future flow of confidential
information from a foreign government or agency (FOI Guidelines, paragraph 5.25).
I consider the expectation of damage to international relations is reasonable in all the
circumstances, having had regard to the nature of the information, the circumstances in which it
was communicated, and the nature and extent of the relationship of the damage to international
relations which could reasonably occur in the event of disclosure (FOI Guidelines, paragraph 5.40).
I consider that the disclosure of the information marked up in the document would be reasonably
likely to cause damage to the international relations of the Commonwealth, and that this
information is exempt under section 33(a)(iii) of the FOI Act.
The exempt material includes material discussing Australia's engagement with the Republic of
Nauru. I find that disclosure of this material would, or could reasonably be expected to, cause
damage to Australia's international relations.
Material obtained in confidence (section 33(b) of the FOI Act)
Under section 33(b) of the FOI Act, a document is exempt if disclosure would divulge any matter
communicated in confidence to the Australian Government by or on behalf of a foreign
government, an authority of a foreign government or an international organisation.
Information is communicated in confidence by or on behalf of another government or
international organisation if it was communicated under an express or implied understanding that
the communication would be kept confidential (FOI Guidelines, paragraph 5.46).
Confidentiality need not be formal. A general understanding that communications of a particular
nature will be treated in confidence will suffice. The understanding of confidentiality may be
inferred from the circumstances in which the communications occurred, including the relationship
between the parties and the nature of the information communicated (FOI Guidelines, paragraph
5.48).
I consider that the disclosure of the information marked up in the document was communicated
in confidence by a foreign government and is exempt under section 33(b) of the FOI Act.
Substantial adverse effect on an agency’s proper and efficient conduct of operations (section
47E(d) of the FOI Act) Under section 47E(d) of the FOI Act, a document is conditionally exempt if disclosure would, or
could reasonably be expected to have a substantial adverse effect on the proper and efficient
conduct of an agency’s operations. FOI Guidelines, paragraph 6.92 specifies that the ‘substantial
adverse effect’ may be an indirect effect.
The documents in scope include content which involves the operation of Australia’s immigration
programs including its offshore processing centres. The department’s functions include
coordinating with foreign governments about the operation of Australia’s offshore processing
centres. In undertaking this role, the department works with other Commonwealth agencies
including for security and law enforcement arrangements.
I am satisfied that disclosure of this material within the scope of your request would prejudice the
flow of similar information to the department in the future and that the department’s inability to
obtain similar information in future would, or could reasonably be expected to, have a substantial
adverse effect on the department’s ability to effectively and efficiently undertake its operational
activities.
I have therefore decided that this material is conditionally exempt under section 47E(d) of the FOI
Act.
Conditional exemptions - public interest considerations (section 11A(5) of the FOI Act)
As section 47E(d) of the FOI Act is a conditional exemption, I must grant you access to this
material unless providing access would, on balance, be contrary to the public interest (section
11A(5) of the FOI Act).
In assessing the public interest, I have considered the FOI Guidelines referred to above and the
public interest factors listed in section 11B of the FOI Act as favoring access, including whether
granting access to the documents would:
• promote the objects of the FOI Act;
• inform debate on a matter of public importance;
• promote effective oversight of public expenditure.
I have also considered public interest factors against disclosure, including that disclosure may
reasonably be expected to:
• prejudice security, law enforcement, public health or public safety;
• could reasonably be expected to prejudice the management function of an agency.
On balance, I am of the view that the public interest is weighted against the disclosure of this
material. In forming this view, I have not taken into account any of the irrelevant factors specified
in section 11B(4) of the FOI Act.
Review rights
Information about your review rights is set out in the
Attachment for your reference.
Contact
Should you have any queries regarding this matter please contact the FOI and Privacy Law Section
by email
xxx@xxxx.xxx.xx.
Yours sincerely
Sarah Kirlew
Assistant Secretary
Department of Foreign Affairs and Trade
