11 December 2024
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/08/00747
File Number:
FA24/08/00747
Dear Mr Smith
Freedom of Information (FOI) request – Decision
On 13 August 2024, 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 requested access to the following documents:
Under the FOI Act, please provide a copy of the brief titled “Enhanced Status Resolution
Support Services for NZYQ-affected cohort” sent to the Minister for Immigration’s office on
05/01/2024 with the PDR number: MS23-002600.
On 26 August 2024 you agreed to revise the scope of your request to the following documents:
Under the FOI Act, please provide a signed copy of the brief titled “Enhanced Status Resolution
Support Services for NZYQ-affected cohort” sent to the Minister for Immigration’s office on
05/01/2024 with the PDR number: MS23-002600.
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.
3
Relevant material
In reaching my decision I referred to the following:
the terms of your request
the documents relevant to the request
Level 3 -299 Adelaide Street www.homeaffairs.gov.au
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
advice from other Commonwealth Departments
4
Documents in scope of request
The Department has identified two documents as falling within the scope of your request. These
documents were in the possession of the Department on 13 August 2024 when your request was
received.
Attachment A is a schedule which describes the relevant documents and exemption claims 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:
Release one document in part with deletions
Exempt one document in full
6
Reasons for Decision
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 13 August 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)(ii)’ 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)(ii) of the FOI Act.
The remainder of the document has been considered for release to you as it is relevant to your
request.
6.2 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.
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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 Document 1 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, being the enhancement of Status Resolution Support Services for
NZYQ-affected and new Bridging (Removal Pending) visa (BVR) cohort to support their
adjustment into the community.
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, revise or prepare a
policy, administer or review a program, or some similar activity. 3Disclosure 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 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 below.
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 effect on the proper and
efficient conduct of the operations of an agency.
I consider that the disclosure of parts of Documents 1 and 1.1 (fully exempt) 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.
Disclosure of the Department’s internal assessment methods and criteria used to assess the
NZYQ-affected and Bridging visa R (BVR) cohort would disclose finer details of the enhanced
Status Resolution Support Services. Disclosure could increase the risk of relevant assessment
information being identified and how it could be manipulated or falsified to achieve an individually
advantageous outcome. If disclosed, these methods could be liable to be circumvented and result
in a person with serious or compelling risk factors being placed in a setting where they present a
public health or safety risk to others.
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
1
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
2
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
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enforcement partners, to change those methods and/or procedures to avoid jeopardising their
future effectiveness.
I have decided that parts of Document 1 and Document 1.1 and 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 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 does have the character of public importance and
that there may be broad public interest in the documents.
Insight into public expenditure will 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:
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
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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 the parts of the documents 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.
8
Your Review Rights
If you disagree with this decision, you have the right to apply for either an internal review or an
Information Commissioner review of the decision.
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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 will 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 will 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.
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.
Yours sincerely
Jaycob McMahon
Position Number 60022053
First Assistant Secretary
Character, Cancellation and Case Resolution Division
Department of Home Affairs
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