20 December 2024
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/12/00458
File Number:
FA24/12/00458
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. MS24-001670.
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
PO Box 25 Belconnen ACT 2616
• www.homeaffairs.gov.au
link to page 2 link to page 2 link to page 2 link to page 2 link to page 2
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 9 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 full from disclosure
6
Reasons for Decision
Detailed reasons for my decision are set out below.
6.1 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”
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, or some similar activity.
3
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.
4 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 factual
5.
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
4
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
5
Harris v Australian Broadcasting Corporation and Others (1984) 1 FCR 150
2
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.
6.2 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 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 documents may have a general characteristic of public
importance.
•
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.
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.
3
•
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.
8
Your review rights
If you disagree with this decision, you have the right to apply for either an internal review or an
Information Commissioner review of the decision.
Internal review
If you want the Department to review this decision, you must make your internal review request
within 30 days of being notified of this decision.
4
When making your internal review request, please provide the Department with the reasons why
you consider this decision should be changed.
You can send your internal review request to:
Email: xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx
Or
Postal mail:
Freedom of Information
Department of Home Affairs
GPO Box 241 MELBOURNE VIC 3001
The internal review wil be carried out by an officer who is more senior than the original decision
maker. The Department must make its decision on the review within 30 days of receiving your
request for internal review.
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 t
he 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.
Yours sincerely
(Electronically signed)
Gemma
Position number 60061246
Authorised Decision Maker
Department of Home Affairs
5
