fa 241200164 decision record.PDF.pdf

24 January 2025
Oliver2
BY EMAIL:  xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/12/00164
File Number:
FA24/12/00164
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 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 11/9/24 with the Brief PDR No. MS24-000715.
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

6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 • 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 the document in part under s. 33, and in full under s. 47C
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 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 document 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
document, with the irrelevant material deleted pursuant to section 22(1)(a)(ii) 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 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 parts of the document exempted under section 33(a)(i) would cause
damage to the security of the Commonwealth.
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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 …
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 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 and
Australia’s national interests. I consider the particular damage to the security of the
Commonwealth to be as follows:
(a)  Information within the document would provide insight into the manner in which
national security operations are undertaken. The disclosure of the exempt information
would likely require security authorities to revise policies and procedures to minimise
the harm cause by those disclosures.


1 Church of Scientology v Woodward (1982) 154 CLR 25 at [19].
2 Staats and National Archives of Australia [2010] AATA 531 (16 July 2010) (austlii.edu.au), at [99]
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As such I have decided that the information marked ‘s33(a)(i)’ in the document is exempt from
disclosure under section 33(a)(i) of the FOI Act.
Section 33(a)(iii) 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 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 expectation
of damage to international relations must be reasonable in all the circumstances, having regard
to the nature of the information; the circumstances in which it was communicated; and the nature
and extent of the relationship.  There must be real and substantial grounds for the conclusion
that are supported by evidence.
I consider that the release of the information marked 's33(a)(iii)' in the document would, or could
reasonably be expected to cause damage to the Australian Government's international relations.
I am of the view that the disclosure of the Ministerial Submission could reasonably be expected
to inhibit future information sharing between the Australian Government and foreign
governments.
As such I have decided that the information redacted and marked ‘s33(a)(iii)’ is exempt from
disclosure under section 33(a)(iii) of the FOI Act.
Section 33(b)  provides that a document is an exempt document if disclosure would divulge
information or matter communicated in confidence by a foreign government, an authority of a
foreign government or an international organization to the Commonwealth.
The Information Commissioner Guidelines state that information is communicated in confidence
by or on behalf of another government if it was communicated and received under an express or
implied understanding that the communication would be kept confidential   Where the information
is, in fact confidential in character and whether it was communicated in circumstances importing
an obligation of confidence are relevant considerations.
The relevant time for the test of confidentiality is the time of communication of the information,
not the time of the request for access to that communication.
An agreement to treat documents as confidential does not need to be formal. A general
understanding that communications or a particular nature will be treated in confidence will suffice.
The understanding of confidentiality may be inferred from the circumstances in which the
communication occurred, including the relationship between the parties and the nature of the
information communications.
Having considered these factors, I am satisfied that information contained within the document
subject to this request was communicated in confidence by or on behalf of another government,
and was received by the Australian Government under an understanding of confidentiality.  There
was clear general understanding between the relevant parties that the communication would be
treated in confidence.
The confidential nature of the document is highlighted by the strict document handling protocols
that have been put in place within the Department itself, with a very limited number of officers
having access to the document, and access being limited to a strictly need-to-know basis.
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Amongst other things this may severely disadvantage Australia in major international
negotiations or strategy, raise international tension, or cause severe damage or disruption, to
diplomatic relations.
As such, I have decided that the release of parts of the document would divulge information
communicated in confidence by or on behalf of a foreign government to the Commonwealth of
Australia and I have decided that parts of the document are exempt from disclosure under section
33(b) of the FOI Act.
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”3  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.’4
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 notification of audits. 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. 5
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 notifying about an audit. 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. I have
had regard to the fact that “purely factual material” does not extend to factual material that is an
integral part of the deliberative content and purpose of a document, or is embedded in or
intertwined with the deliberative content such that it is impractical to excise it.6 A factual summary
prepared to aid a complex issue may be classed as purely factual material, but may also be of a
character as to disclose a process of section involving opinion, advice or recommendation. As
such, a conclusion which involves a deliberative process may well prevent material from being
purely factual7.


3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
4
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
5
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
6
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
7
Harris v Australian Broadcasting Corporation and Others (1984) 1 FCR 150

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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.
6.4  The public interest – section 11A of the FOI Act
As I have decided that the document is  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  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 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 document would promote the objects of the FOI Act.
•  The subject matter of the document  may  have a general characteristic of public
importance.
•  No insights into public expenditure will 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 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 audit
notifications.
•  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:
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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.
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.

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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 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

Matthew
Position number 48000496
Authorised Decision Maker
Department of Home Affairs

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