28 January 2024
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/12/00316
File Number:
FA24/12/00316
Dear Oliver Smith
Freedom of Information (FOI) request – Decision
On 5 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 6/9/24 with the Brief PDR No. MS24-001185.
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 • Telephone: 02 6264 1111 • www.homeaffairs.gov.au

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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 5 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 part 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 33 of the FOI Act – Documents affecting National Security, Defence or
International Relations
Documents affecting National Security
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 al ied 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’.


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) (austli .edu.au), at [99]
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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).
Paragraph (aa) is particularly on point. It was inserted by the Anti-People Smuggling and Other
Measures Act 2010  (Cth) (Schedule 2). The Explanatory Memorandum for the Anti-People
Smuggling and Other Measures Bil  2010 (Cth), states that ‘serious threats to Australia’s territorial
and border integrity’ include ‘those posed by people smuggling activities’ (at 2-3).
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 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 vessels and personnel and
encouraging il egal activity.  I consider the particular damage to the security of the
Commonwealth to be as follows:
(a)
The disclosure of the exempt information would likely provide people smuggling
operators with official government information which they could use to manipulate
and convince any potential il egal immigrants to embark on voyages to Australia.
This would be an improper use of the information which may also cause a risk to
human life.  To disclose information that indicates the success or otherwise of
ventures may also encourage others to engage in people smuggling activities.  I
consider that there is a strong public interest in preventing the potential risk to
human life associated with people smuggling.
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.
Documents affecting International Relations
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 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
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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.
The information contained in the document relate to transferees to Nauru Regional Processing
Centre. The Republic of Nauru is a sovereign nation and the Government of Nauru is responsible
for regional processing in Nauru.
This document also relates to the country of origin  of these transferees. The release of this
information would be seen as Australia contributing to a perception about these countries and it
may affect future negotiations and bilateral engagements between Australia and source
countries. Notably, the release of this material could limit the Commonwealth’s ability to secure
future assisted voluntary return (AVR) arrangements with source countries, where success relies
heavily on these relations.
I consider releasing the information marked ‘s33(a)(iii)’ would adversely impact on the ability of
the Department to maintain good working relations with the Government of Nauru and other
countries. This assessment is made considering the nature of the information contained within
the document and the current nature and extent of the Australia Government’s relationship with
the Government of Nauru and other countries.
As such I have decided that the information redacted and marked 's33(a)(iii)" is exempt from
disclosure under section 33(a)(i i) of the FOI Act.
6.2  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. 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


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
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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.
Section 47C(2) provides that “deliberative matter” does not include purely factual material 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.
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 parts 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 document would promote the objects of the FOI Act.
•
The subject matter of the document does not seem to have a general characteristic
of public importance. The matter has a limited scope and, in my view, would be of
interest to a very narrow section of the public.
•
No insights into public expenditure wil  be provided through examination of the
document.
•
You do not require access to the document in order to access your own personal
information.
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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 ful and honest advice to stakeholders in future proposals.
•
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.
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.

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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
If you want the Australian Information Commissioner to review this decision, 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 using the Information Commissioner
review application form on the OAIC website.
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.

Shan
Position number 60028140
Authorised Decision Maker
Department of Home Affairs
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Document Outline