10 February 2025
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/12/00446
File Number:
FA24/12/00446
Dear Oliver Smith
Freedom of Information (FOI) request – Decision
On 9 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. MS24-001631.
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
• advice from other Commonwealth Departments
PO Box 25 Belconnen ACT 2616
• xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au
4
Document 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 9 December 2024 when
your request was received.
Attachment A is a schedule which describes the relevant document and sets out my decision in
relation to each of them.
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:
• Release one document in part with deletions
• Exempt one attachment in full; and
• Refuse one attachment in full and provide access to the version of the published
document.
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 4(1) of the FOI Act – material maintained for reference purposes
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.
Part of the information you have requested, Document 1.1 Attachment A: Kimberly Marine Park
Zoning, is publicly available from the Australian Marine Park website. The document can be
accessed using the following link:
https:/ australianmarineparks.gov.au/static/f2d924e86afda12b937d2ba563055a6d/amp-
document-factsheet-north-west-management-plan.pdf
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 9 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)(i ) of the FOI Act.
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link to page 3 link to page 3
The remainder of the document has been considered for release to you as it is relevant to your
request.
6.3 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 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’.
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
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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(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, increase the risk and encouraging illegal activity. I consider
the particular damage to the security of the Commonwealth to be as follows:
(a) If the exempt information were released, border protection authorities would be forced
to revise current operational methodology to minimise the harm caused by those
disclosures. This is, by definition, damage to security operations. Current procedures
and activities are set with a view to achieving maximum security outcomes with the
available resources. Any changes required by a need to counter the advantage afforded
to vessels or persons engaging in il egal maritime activities necessarily represents a
compromise to operational effectiveness.
(b) Australia’s maritime borders are vast. Australia’s maritime domain comprises some
12 million square nautical miles – about 11.5% of the world’s oceans. Australia has
insufficient resources to continuously patrol every possible point of maritime entry into
Australia. Even if the insight afforded is considered to be slight, any reduction in the
efficiency or effectiveness of current operational methods is likely to have significant
consequences given the ever-present challenge of managing such an enormous
jurisdiction with finite resources.
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.
6.4 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
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 the document 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 Department’s role includes managing the security and integrity of Australia's borders. The
Department leads the management of risks to Australia's border in close collaboration with other
government agencies, including State and Federal law enforcement agencies. As such, the
Department's role includes law enforcement functions.
The disclosure of information within this document would be reasonably likely to impact on
ongoing investigative methodology and relationships both domestically and internationally that
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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 borders of Australia.
I have decided that this information is exempt from disclosure under Section 37(2)(b) 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.
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.
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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
Electronically signed
Neil
Position number 49009545
Authorised Decision Maker
Department of Home Affairs
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