21 January 2025
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/12/00176
File Number:
FA24/12/00176
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 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 have requested access to the following documents:
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. MS24-001780
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
• 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
PO Box 25 Belconnen ACT 2616 • xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au
4
Documents in scope of request
The Department has identified three documents as falling within the scope of your request. These
documents were in the possession of the Department on 3 December 2024 when your request
was received.
Attachment A is a schedule which describes the relevant documents 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:
• Exempt three documents in full from disclosure
6
Reasons for Decision
Detailed reasons for my decision are set out below.
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 33 of the FOI Act – Documents affecting National Security, Defence or
International Relations
Section 33(a)(i) of the FOI Act permits exemption of a document if disclosure of the document
would, or could reasonably be expected to cause damage to the security of the
Commonwealth.
For the reasons set out below, I consider that there are real and substantial grounds for expecting
that the disclosure of the documents exempted under section 33(a)(i) would cause damage to
the security of the Commonwealth.
Security
‘Security’ is a concept with a fluctuating content which can depend upon the circumstances as
they exist from time to time.1 ‘Security of the Commonwealth’ is defined in section 4(5) of the FOI
Act as follows
(5)
Without limiting the generality of the expression security of the Commonwealth,
that expression shall be taken to extend to:
(a)
matters relating to the detection, prevention or suppression of activities,
whether within Australia or outside Australia, subversive of, or hostile to, the
interests of the Commonwealth or of any country allied or associated with
the Commonwealth; and …
1
Church of Scientology v Woodward (1982) 154 CLR 25 at [19].
- 2 –
I also consider that the definition of ‘security’ in the
Australian Security and Intelligence
Organisation Act 1979 (the ASIO Act) is relevant. This view is in accordance with the guidance
provided by
Staats and National Archives of Australia,2 in which Deputy President Forgie found
that it would be ‘consistent with the scheme of regulation established by Parliament to interpret
the word “security” in both the Archives Act and the FOI Act in a way that mirrors its definition in
the ASIO Act’.
The ASIO Act defines ‘security’ as:
(a) The protection of, and of the people of, the Commonwealth and the
several States and Territories from:
(i)
Espionage
(ii)
Sabotage
(iii) Politically motivated violence
(iv) Promotion of communal violence
(v)
Attacks on Australia’s defence system; or
(vi) Acts of foreign interference;
Whether directed from, or committed within, Australia or not; and
(aa) the protection of Australia’s territorial and border integrity from
serious threats; and
(b) The carrying out of Australia’s responsibilities to any foreign country
in relation to a matter mentioned in any of the subparagraphs of
paragraph (a) or the matter mentioned in paragraph (aa).
For a document (or part of a document) to be exempt under s 33(a)(i), I must be satisfied that,
on the balance of probabilities, disclosure would, or could reasonably be expected to, cause
damage to the security of the Commonwealth.
I consider that the disclosure of the information contained within the document that I regard as
exempt under s 33(a)(i) could cause damage to the security of the Commonwealth by
compromising operational functions, increasing the risk to Australian interests and encouraging
il egal activity. I consider the particular damage to the security of the Commonwealth to be as
follows:
(a)
Information within the documents would provide insight into the manner in which
national security operations are undertaken, including requirements, training and
procedures.
(b)
If the exempt information contained within these documents were released, security
authorities would be forced to revise current policies and procedures to minimise
the harm caused by those disclosures. This is, by definition, damage to security
operations.
As such I have decided that the information marked '
s. 33(a)(i)’ in the documents are exempt
from disclosure under section 33(a)(i) of the FOI Act.
Section 33(a)(i ) of the FOI Act permits exemption of a document if disclosure of the document
would, or could reasonably be expected to cause damage to the defence of the Commonwealth.
2 Staats and National Archives of Australia [2010] AATA 531 (16 July 2010) (austli .edu.au), at [99]
- 3 –
For a document (or part of a document) to be exempt under s 33(a)(i ), I must be satisfied that,
on the balance of probabilities, disclosure would, or could reasonably be expected to, cause
damage to the defence of the Commonwealth.
I consider that the disclosure of the information contained within the document that I regard as
exempt under s 33(a)(i ) could cause damage to the defence of the Commonwealth by disclosing
information that could cause harm to Australian interests.
As such I have decided that the information marked '
s. 33(a)(ii)’ in the documents are exempt
from disclosure under section 33(a)(i ) of the FOI Act.
Section 33(a)(i i) of the FOI Act permits exemption of a document if disclosure of the document
would, or could reasonably be expected to cause damage to the international relations of the
Commonwealth.
The FOI Guidelines [at 5.29] advise that:
5.29 The term ‘security of the Commonwealth’ broadly refers to: (a) the protection of
Australia and its population from activities that are hostile to, or subversive of, the
Commonwealth’s interests.
The FOI Guidelines [at 5.36] advise that:
5.36 The phrase ‘international relations’ has been interpreted as meaning 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. The exemption is not confined to relations at the formal diplomatic or ministerial
level. It also covers relations between Australian Government agencies and agencies of
other countries.
You have requested access to documents that reveal the Department’s consultation with foreign
governments. I am satisfied that revealing these details could reasonably be expected to inhibit
the good working relations between the governments of Australia and our international partners.
Maintaining strong bilateral and multilateral relationship with foreign governments requires trust.
Integral to maintaining trusted relationships is the capacity for the Australian Government to
protect its communications with foreign governments, including by maintaining confidentiality
over the flow of information. Officials of the respective countries, including those based at
embassies in Australia, need to be able to negotiate and share information with the assurance
that the details of their discussions or correspondence wil not be inappropriately or unlawfully
disclosed.
As such I have decided that the information redacted and marked ‘
s. 33(a)(iii)’ is exempt from
disclosure under section 33(a)(i i) of 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.
- 4 –
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.
You can make an FOI complaint to the Office of the Australian Information Commissioner
(OAIC) at: FOI Complaint Form on the OAIC website.
- 5 –
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]
Matthew
Position No. 48000496
Authorised Decision Maker
Department of Home Affairs
- 6 –
