25 September 2024
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/08/00876
File Number:
FA24/08/00876
Dear Oliver Smith
Freedom of Information (FOI) request – Decision
On 13 August 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).
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 document:
Original Scope-13 August 2024
Under the FOI Act, please provide a copy of the brief titled “Compensation for Detriment
Caused by Defective Administration (CDDA) - <redacted>” sent to the Minister for
Immigration’s office on 13/12/2023 with the PDR number: MS23-001846.
Revised Scope 26 August 2024
Under the FOI Act, please provide the signed version of the brief titled “Compensation for
Detriment Caused by Defective Administration (CDDA) - <redacted>” with the PDR number:
MS23-001846.
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:
808 Bourke Street Melbourne 3001
xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au
• 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
4
Document in scope of request
The Department has identified one document, with three attachments, as falling within the scope
of your request. This document was in the possession of the Department on 13 August 2024
when your request was received.
Attachment A is a schedule which describes the relevant document and sets out my decision in
relation to each of them.
5
Decision
The decision in relation to the document in the possession of the Department which fall within
the scope of your request is as follows:
• Release three documents in part with deletions
• Release one document in full
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 15 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 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.
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6.2 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 Document 1 comprises of confidential communications passing
between the Department and its legal advisers, for the dominant purpose of giving or receiving
legal advice. The material either contains privileged legal advice or confidential
communications created for the dominant purpose of seeking or giving instructions in legal
proceedings.
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 document is not part of the rules, guidelines, practices or precedents
relating to the decisions and recommendations of the Department. The document does not fall
within the definition of operational information and remain subject to legal professional privilege.
I have therefore decided that parts of Document 1 is exempt from disclosure under section
42(1) of the FOI Act.
6.3 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”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
The document contains advice, opinions and recommendations prepared or recorded in the
course of, or for the purposes of, the deliberative processes involved in the functions of
Department, being the assessment for a claim for compensation. I am satisfied that this
deliberative matter relates to a process that was undertaken within government to consider
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
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whether and how to make or implement a decision, revise or prepare a policy, administer or
review a program, or some similar activity. 3
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 legislation. Disclosure of some
deliberative information, on which a decision has not yet been taken, could also reasonably be
expected to prejudice consultations with relevant stakeholders.
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 am further satisfied that the factors set out in subsection (3) do not apply in this instance.
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.
6.4 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 the parts of documents 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.
Releasing parts of the document marked ‘
s47E(d)’ would reveal methods about how the
Department assesses compensation claims therefore impacting upon the Department’s
operational methods. Any prejudice to the ef ectiveness 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 to change those methods
and/or procedures to avoid jeopardising their future effectiveness.
I have decided that parts of the documents 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.
6.5 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
3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
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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.
I do not consider that the information relating specifically to the third parties would be relevant to
the broader scope of your request, as you are seeking access to Ministerial Submission MS23-
001846 rather than information which wholly relates to other individuals.
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 below.
6.6 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 not seem to have a general characteristic
of public importance. The matter has a limited scope and, in my view, would be of
interest to a very narrow section of the public.
•
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.
•
Disclosure of the parts of the documents that are conditionally exempt under section
47E(d) of the FOI Act could reasonably be expected to reveal operational methods. I
consider there to be a strong public interest in ensuring that the ability of the
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Department to conduct its operational 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.
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.
Internal Review
If you want the Department to review this decision, you must make your internal review request
within 30 days of being notified of this decision.
When making your internal review request, please provide the Department with the reasons why
you consider this decision should be changed.
You can send your internal review request to:
Email: xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx
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Or
Postal mail:
Freedom of Information
Department of Home Affairs
GPO Box 241 MELBOURNE VIC 3001
The internal review wil be carried out by an officer who is more senior than the original decision
maker. The Department must make its decision on the review within 30 days of receiving your
request for internal review.
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.
Yours sincerely
Clare
Position number 60006163
Authorised Decision Maker
Department of Home Affairs
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