13 February 2025
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/12/00198
File Number:
FA24/12/00198
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. MS24-001756.
On 16 December 2024 you agreed to revise the scope of your request 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 13/9/24 and 16/9/24 with the Brief PDR No. MS24-
001756.
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 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)
consultation responses from third parties consulted in accordance with the FOI Act
advice from Departmental officers with responsibility for matters relating to the
document to which you sought access
advice from other Commonwealth Departments
4
Documents in scope of request
The Department has identified one document with attachments 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.
Section 4(1)(d) of the FOI Act provides that a document for the purpose of the FOI Act does not
include material that is otherwise publicly available.
Two attachments
1.2 and
1.3 are publicly available and can be found on the Parliament of
Australia website. The document can be accessed using the following links:
https://www.aph.gov.au/
https://www.aph.gov.au/Parliamentary Business/Tabled Documents/7382
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:
Release one document in part with deletions; and
Release one attachment 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 7 of the FOI Act – exemption of certain persons and bodies
Section 7(2A)(a) of the FOI Act provides that an agency is exempt from the operation of the FOI
Act in relating to a document (an intelligence agency document) that has originated with, or has
been received from, any of the following agencies:
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(a) the Australian Secret Intelligence Service
(b) the Australian Security Intelligence Organisation
(c) the Inspector-General of Intelligence and Security
(d) the Office of National Intelligence
(e) the Australian Geospatial-Intelligence Organisation
(f) the Defence Intelligence Organisation
(g) the Australian Signals Directorate.
Section 7(2A)(b) of the FOI Act extends the exemption to apply to documents that contain an
extract from or a summary of an intelligence agency document.
I am satisfied that the material marked and redacted ‘s.7(2A)’ comprises an extract or summary
of a document originating from one of the exempt agencies listed above.
Accordingly, I consider that the Department is exempt from the operation of the FOI Act in relation
to this material. This means that you do not have a right under the FOI Act to obtain access to
these parts of the document.
6.2 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 4 December 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 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)(ii) of the FOI Act.
The remainder of the document has been released to you as it is relevant to your request.
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.
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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
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. 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 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 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 at
paragraph 6.4 below.
6.4 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.
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.
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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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 may have a general characteristic of public
importance.
No insights 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 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.
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.
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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 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 review
s 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.
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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,
Michael
Position number 60166944
Authorised Decision Maker
Department of Home Affairs
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ATTACHMENT A
SCHEDULE OF DOCUMENTS
REQUEST UNDER
FREEDOM OF
INFORMATION ACT 1982
FOi request: FA 24/12/00198
File Number: FA24/12/00198
No.
Date of
No. of Description
document
pages
Decision on release
1.
13 September
4
MS24-001756
Release in part
s.7(2A);
2024
s.22(1 )(a)(ii);
s.47C(1)
1.1 13 September
1
Attachment A
Release in full
2024
1.2 11 September
1
Attachment B: No. 592 -
Refuse in full
s.4
2024
Visas issued to
Palestinians
1.3 16 September
1
Attachment C:
Refuse in full
s.4
2024
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