14 January 2025
Oliver2
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/12/00156
File Number:
FA24/12/00156
Dear Oliver2,
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 12/9/24 with the Brief PDR No. MS24-001755.
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
6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 • www.homeaffairs.gov.au
4
Documents in scope of request
Upon review, PDR No. MS24-001755 dated 12 September 2024 does not exist. PDR No. MS24-
001755 was created to fix a systems error with PDR No. MS24-001753. PDR No. MS24-001753
was provided to the office of Home Affairs Minister Tony Burke on 12 September 2024. The draft
PDR No. MS24-001755 and signed MS24-001753 are identical in contents just that the latter
was signed by Minister Burke on 12 September 2024. The latter will be provided.
Therefore 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:
• Release two documents in part with deletions
• Exempt one document in full from disclosure
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 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 documents marked ‘s22(1)(a)(ii)’ 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)(ii) of the FOI Act.
The remainder of the documents have been considered for release to you as they are relevant
to your request.
6.2 Section 37 of the FOI Act - Documents Affecting Enforcement of Law and
Protection of Public Safety
Section 37(2)(b) of the FOI Act provides that a document is exempt from disclosure if its
disclosure would, or could reasonably be expected to disclose lawful methods or procedures for
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preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions
of the law the disclosure of which would or could reasonably likely to, prejudice the effectiveness
of those methods or procedures.
I consider that parts of document numbered 1 and 2 would, or could reasonably be expected to
disclose lawful methods or procedures for preventing or detecting breaches or evasions of the
law and that disclosure would, or would reasonably likely to, prejudice the effectiveness of those
methods or procedures.
The disclosure of information within these documents would be reasonably likely to impact on
ongoing investigative methodology and relationships domestically that support Australian
government investigative capabilities. The release of this information would prejudice the
effectiveness of those methods or procedures, assisting endeavours to evade them and thereby
reducing the ability of the Department and other law enforcement agencies to protect the
Australian community and Immigration Detention System.
Section 37(2)(c) of the FOI Act provides that a document is exempt from disclosure if its
disclosure would prejudice the maintenance or enforcement of lawful methods for the protection
of public safety.
The words ‘public safety’ do not extend beyond safety from violations of the law and breaches of
the peace. The AAT has observed that ‘public safety’ should not be confined to any particular
situation, such as civil emergencies (bushfires, floods and the like) or court cases involving the
enforcement of the law.1
The disclosure of information within these documents would be reasonably likely to impact on
the maintenance or enforcement of lawful methods for the protection of public safety. The release
of this information would prejudice the effectiveness of those methods or procedures, assisting
endeavours to evade them and thereby reducing the ability of the Department and other law
enforcement agencies to protect the Australian community and Immigration Detention System.
I have decided that this information is exempt from disclosure under Sections 37(2)(b) and
37(2)(c) of the FOI Act.
6.3 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 document one comprises confidential communications passing between the
Department and its legal advisers, for the dominant purpose of giving or receiving legal advice.
1 Re Thies and Department of Aviation [1986] AATA 141; (1986) 9 ALD 454; (1986) 5 AAR 27.
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In determining that the communication is privileged, I have taken into the 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 contents of this document is not part of the rules, guidelines, practices or precedents relating
to the decisions and recommendations of the Department. The documents do not fall within the
definition of operational information and remain subject to legal professional privilege.
I have decided that document one is exempt from disclosure under section 42 of the FOI Act.
6.4 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”2 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.’3
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 proposed amendments to policy. I am satisfied that this deliberative matter
relates to a process that was undertaken within government to consider whether and how to
revise or prepare a policy. 4
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.
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.
2
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
3
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
4
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
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6.5 The public interest – section 11A of the FOI Act
As I have decided that parts of the documents 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.
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:
• 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
policy 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.
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 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.
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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 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
Nada
Position number: 60016437
Authorised Decision Maker
Department of Home Affairs
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