23 January 2025
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/12/00200
File Number:
FA24/12/00200
Dear Oliver Smith,
Freedom of Information (FOI) request – Decision
On 3 December 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, I seek a copy of the Ministerial Brief provided to the office of Home
Affairs Minister Tony Burke on 16/9/24 with the Brief PDR No. MS24-001759.
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
PO Box 25 Belconnen ACT 2616 • xxx@xxxxxxxxxxx.xxx.xx • 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 3 December 2024 when your request was
received.
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:
• Exempt one document in full from disclosure
6
Reasons for Decision
My findings of fact and reasons for deciding that the exemption provision applies to that
information are set out below.
6.1 Section 34 – Cabinet documents
Section 34(1)(c) of the FOI Act permits exemption of a document if it was brought into existence
for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies
At the time the document was created, it was brought into existence for the dominant purpose of
briefing the Minister for Home Affairs on a submission to Cabinet.
I have sought advice from the Department of Prime Minister and Cabinet and note the advice
contained within the Cabinet Handbook. The paragraphs below detail considerations to be taken
into account when handling cabinet documents, with particular focus on the ‘Confidentiality’
aspect of all Cabinet proceedings and documentation.
21. The principle of collective responsibility requires that ministers should be able to
express their views frankly in Cabinet meetings in the expectation that they can argue
freely in private while maintaining a united front in public when decisions have been
reached. This in turn requires that opinions expressed in the Cabinet and Cabinet
Committees, including in documents and any correspondence, are treated as
confidential.
22. Al attendees are responsible for ensuring that discussions at Cabinet and Cabinet
Committee meetings remain confidential. Ministers and officials should not disclose
proposals likely to be considered at forthcoming meetings outside Cabinet-approved
consultation procedures. Nor should they disclose the nature or content of the
discussions or the views of individual ministers or officials expressed at the meeting
itself. The detail of discussion at Cabinet and Cabinet Committee meetings is not
recorded in the Cabinet minutes.
23. The vital importance of confidentiality in relation to the deliberations of Cabinet is
recognised in legislation and under the common law. The Freedom of Information Act
1982 (the Act), for example, recognises the special nature of Cabinet deliberations in
the exemption it provides for certain Cabinet documents from disclosure under the Act
(subject to limited exceptions). Cabinet confidentiality is also a well-established ground
for not producing documents or information on a public interest immunity basis to courts,
royal commissions or legislatures.
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A strong Cabinet system is fundamental to well-informed decision making and policy
development by the Government. The convention of the collective responsibility of Ministers for
government decisions is central to the Cabinet system of Government. Cabinet is a forum in
which Ministers, while working towards a collective position, are able to discuss proposals,
options and views with complete freedom. This requires that Cabinet deliberations are treated
confidentially.
The documents contain information which, if disclosed, would reveal Cabinet deliberations and
information that has not, to date, been officially disclosed.
Accordingly, I am satisfied that the a document are exempt under section 34(1)(c).
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.
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.
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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]
Brendan
Position No. 60151577
Authorised Decision Maker
Department of Home Affairs
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