27 February 2025
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/12/00558
File Number:
FA24/12/00558
Dear Oliver Smith
Freedom of Information (FOI) request – Decision
On 10 December 2024, the Department of Home Affairs (the Department) received a request for
access to a 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 5/9/24 with the Brief PDR No. MS24-001415.
On 21 January 2025 the Department issued you a notice under section 24AB of the FOI Act as
your request was too large to process. You responded on 3 February 2025, and revised your
scope to the following:
Ministerial Submission MS24-001415 only
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.
PO Box 25 Belconnen ACT 2616 • xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au
3
Relevant material
In reaching my decision I referred to the following:
• the terms of your 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
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 10 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:
• Release one document in part with deletions
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 11 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 and non-public facing email addresses, contained in documents
that fall within scope of an FOI request.
I have decided that parts of document marked ‘
s. 22(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.
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.
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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 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 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.
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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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 critical infrastructure assets
and encouraging il egal activity. 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, including requirements, training and
procedures.
(b)
If the exempt information contained within the document was released, the
Department would be forced to revise current operational methodology to minimise
the harm caused by those disclosures. This is, by definition, damage to security
operations.
As such I have decided that the information marked '
s. 33(a)(i)’ in the document is exempt from
disclosure under section 33(a)(i) of the FOI Act.
6.3 Section 47E of the FOI Act – Operations of Agencies
Section 47E(d) of the FOI Act provides that documents are conditionally exempt if disclosure
would, or could reasonably be expected to, have a substantial adverse ef ect on the proper and
efficient conduct of the operations of an agency.
I consider that the disclosure of the parts of the document marked ‘
s. 47E(d)’ would, or could
reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct
of the operations of the Department.
Managing the security and integrity of Australia's infrastructure assets is integral to the operations
of the Department. Any prejudice to the effectiveness of the operational methods and procedures
used in undertaking that role would result in a substantial adverse effect on the operations of the
Department.
Any disclosure resulting in the prejudice of the effectiveness of the Department’s operational
methods and procedures would result in the need for this Department, and potentially its law
enforcement partners, to change those methods and/or procedures to avoid jeopardising their
future effectiveness.
I have decided that parts of the document are conditionally exempt under section 47E(d) 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 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.
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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 document would promote the objects of the FOI Act.
•
The subject mat er of the document 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 parts of the document that are conditionally exempt under section
47E(d) of the FOI Act could reasonably be expected to prejudice law enforcement
functions and, as a result, the ability of the Department to protect Australia's borders.
I consider there to be a strong public interest in ensuring that the ability of the
Department to conduct its law enforcement functions is not compromised or
prejudiced in any way. I consider that this would be contrary to the public interest and
that this factor weighs strongly against disclosure.
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.
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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]
Sally
Position No. 60161913
Department of Home Affairs
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