22 October 2024
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request: FA 24/08/01004
File Number: FA24/08/01004
Dear Oliver Smith
Freedom of Information (FOI) request – Decision
On 16 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 have requested access to the following document:
Under the FOI Act, please provide a copy of the brief titled “Proposed pilot for a Refugee
Student Settlement Pathway” sent to the Minister for Immigration’s office on 05/01/2024 with
the PDR number: MS23-002069
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
• 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
6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 • Telephone: 02 6264 1111 • www.homeaffairs.gov.au
4
Document in scope of request
The Department has identified one document as falling within the scope of your request. This
document was in the possession of the Department on 16 August 2024 when your request was
received.
5
Decision
The decision in relation to the document in the possession of the Department which falls within
the scope of your request is as follows:
• Release one document in part with exemptions/deletions
6
Reasons for Decision
Detailed reasons for my decision 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 19 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 the parts of the 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.
6.2 Section 34 – Cabinet documents
Section 34(1) of the FOI Act permits exemption of a document if both of the following are satisfied:
(1) A document is an exempt document if:
(a) both of the following are satisfied:
(i) it has been submit ed to the Cabinet for its consideration, or is or was
proposed by a Minister to be so submitted;
(ii) it was brought into existence for the dominant purpose of submission for
consideration by the Cabinet; or
(b) it is an official record of the Cabinet; or
(c) it was brought into existence for the dominant purpose of briefing a Minister on
a document to which paragraph (a)
applies; or
(d) it is a draft of a document to which paragraph (a), (b) or (c)
applies.
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Section 34(2) of the FOI Act exempts a document 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. As parts of the
document refer to Cabinet meeting dates, this material is considered to contain an extract from
a Cabinet document for the purposes of section 34(2).
Therefore, in consultation with the Department of Prime Minister and Cabinet, I have decided
that the information redacted and marked ‘s34(2)’ is exempt from disclosure under section 34(2)
of the FOI Act.
Section 34(3) exempts documents 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 information in the document redacted and marked 's34(3)’ is exempted under
section 34(3) as it would, if disclosed, reveal deliberations of the Cabinet.
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. 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. 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 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.
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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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 47D – Financial or property interests
Section 47D provides that a document is conditionally exempt if its disclosure under this Act
would have a substantial adverse effect on the financial or property interests of the
Commonwealth, of Norfolk Island or of an agency.
The parts of the document redacted and marked “s47D” relate to the commercial activities of the
Department. The Department’s funding is reviewed by the Government at each budget milestone
and the parts of the documents that are exempt contain specific information on this process. The
release of this material would have a substantial adverse effect on the financial or property
interests of the Commonwealth.
Having formed the view that the material is of a kind to which section 47D does apply, I am
required to consider whether disclosure of the documents would be unreasonable. I took the
following information into consideration:
I considered the following factors in favour of disclosure:
• There is a general public interest in making information held by the Government
accessible to the public;
• A person or the general public is entitled to have access to documents containing
decisions which affect them. Disclosure may reveal the reasons for decision;
• Inform debate on a matter of public importance; and
• The need for openness and accountability of the Department’s operations.
I considered the following factors in favour of non-disclosure:
• Prejudice the competitive commercial activities of the Department;
• Provide an unfair advantage in relation to the budget process; and
• Affect the Department’s ability to use public money effectively.
The Department’s responsibility to use public money lawfully and effectively has been given the
most weight and I have decided that parts of the documents are conditionally exempt under
section 47D 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 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 mat er of the document may have a general characteristic of public
importance.
•
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 could reasonably
be expected to prejudice the ability of the Department to manage future review
processes, inquiries and investigations. I consider that the disclosure of this type of
deliberative material may hinder the future cooperation or participation in those
processes, and that there is a real public interest in this agency being able to
undertaken effective reviews, investigations and inquiries in the future. I consider that
this would be contrary to the public interest and that this factor weighs strongly against
disclosure.
•
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.
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•
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
47D of the FOI Act could reasonably be expected to prejudice the financial or property
interests of the Department and as a result, disclosure would substantially and
adversely impact the ability of the government to manage its financial matters/budget.
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
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.
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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.
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
[Electronically signed]
Michael
Position number 00003354
Authorised Decision Maker
Department of Home Affairs
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