8 April 2025
John B
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 25/02/00730
File Number:
FA25/02/00730
Dear John B
Freedom of Information (FOI) request – Decision
On 12 February 2025, the Department of Home Affairs (the Department) received a request for
access to documents 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 to
documents under the FOI Act.
1
Scope of request
You have requested access to the following:
I am writing to request access to documents under the Freedom of Information Act 1982. My request pertains
to the policies and decision-making processes within the Department regarding the remuneration of counsel
(barristers) engaged by the Department (either directly, or through solicitors).
Specifically, I am seeking documents detailing the following:
1. The current policy of setting initial fees for counsel.
2. The current policy for increasing fees for counsel.
3. Any analyses, reports, policy papers or correspondence dated from January 2020 to today discussing or
considering whether the policies at [1] and/or [2] should be amended or updated.
4. Any submissions made by or on behalf of the Department to the Attorney-General's Department's current
review of Appendix D of the Legal Services Directions.
Should the Department consider the application of any conditional exemptions, the following public interest
matters should be considered: It is in the public interest to understand the rationale behind the setting of
barrister fees at a relatively low amount by the Department. The fees paid to legal counsel engaged by
government departments directly impact the allocation of taxpayer funds and the quality of legal
representation in matters of public importance. It is well known that the Commonwealth struggles to brief
barristers because of the low rates, and this problem is only increasing over time because the rates are not
keeping up with inflation. Transparency regarding the decision-making process behind fee structures not only
PO Box 25 Belconnen ACT 2616 www.homeaffairs.gov.au
ensures accountability in the expenditure of public funds but also allows for an informed discourse on the
adequacy of compensation for legal professionals. Additionally, insight into the factors influencing fee caps
and adjustments is essential for assessing the fairness and competitiveness of government contracts within
the legal services market, ultimately safeguarding the integrity of legal processes and the public's trust in the
justice system.
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 or to amend or annotate records.
3
Relevant material
In reaching my decision I referred to the following:
the terms of your request
the documents 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)
consultation responses from third parties consulted in accordance with the FOI Act
advice from Departmental officers with responsibility for matters relating to the
documents to which you sought access
4
Documents in scope of request
The Department has identified three documents within the scope of your request. These
documents were in the possession of the Department on 12 February 2025 when your request
was received.
5
Decision
The decision in relation to two of the documents in the possession of the Department which fall
within the scope of your request is as follows:
Conditionally exempt two document in full from disclosure.
One document (Appendix D to the Legal Services Directions 2017) within the scope of your
request is publicly available. The information you seek can be found on the following web page
at:
https://www.legislation.gov.au/F2017L00369/latest/text
6
Reasons for Decision
6.1 Section 47C of the FOI Act – Deliberative Processes
Section 47C(1) 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.
The documents conditionally exempt in full contains deliberative matter. That is they contain
advice, opinions and recommendations prepared or recorded in the course of, or for the purposes
of, the deliberative processes of the Department.
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I am satisfied that the documents conditionally exempt in full do not contain operationally
information or purely factual material (s47C(2) FOI Act).
I am satisfied that the factors set out in subsection (3) do not apply in this instance. That is, the
documents are not reports of a scientific or technical expert or of a body or organisation
established within an agency or are the record of a final decision given in the exercise of a power
or of an adjudicative function (s47C(3(a), (b) and (c) FOI Act).
I have decided that two documents are conditionally exempt under section 47C(1) of the FOI Act.
6.2 The public interest – section 11A of the FOI Act
Section 11A(5) provides that access to a document must be provided if it is conditionally exempt
at a particular time unless (in the circumstances) access to the document at that time would, on
balance, be contrary to the public interest.
I have considered the public interest factors favouring disclosure (s11B(3)(a)-(d) FOI Act).
Whilst the objects of the Act are to give the Australian community access to information (s3(1)),
on balance, I do not consider that access to these documents which contain deliberative matter
in a deliberative process would inform debate of public importance or promote effective oversight
of public expenditure (and section 11B(3)(d) does not apply). The Department briefs external
Counsel in accordance with Appendix E of the Legal Services Directions and the Department’s
legal expenditure is publicly reported at the end of financial year.
I have not taken into account any of the following factors at section 11B(4) FOI Act into account
in my decision:
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.
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.
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:
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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 will 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 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.
Yours Sincerely
Alicia
Position number 60071732 Authorised Decision Maker
Department of Home Affairs
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