AE24-038 Advice Provided to Minister on Release of Detainees on 8 November 2023

Oliver Smith made this Freedom of Information request to Department of Home Affairs

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The request was refused by Department of Home Affairs.

Dear Department of Home Affairs,

Under the FOI, I would like the advice provided to government referenced in Senate Estimates Question on Notice AE24-038, which was published online in May 2024, which says: "There is no record of advice being provided to the Government, following the making of orders by the High Court on 8 November 2023 in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, that the only response necessary was to release the plaintiff". Give the department has already indicated what is not in the advice, what is in the advice.

Yours faithfully,

Oliver Smith

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OFFICIAL: Sensitive
Personal-Privacy

In reply please quote:

FOI Request: FA 24/06/00292

File Number: FA24/06/00292

Dear Oliver Smith

I refer to your email dated 5 June 2024, in which you requested access to
documents held by the Department of Home Affairs (the Department) under
the Freedom of Information Act 1982 (the FOI Act).

You have requested access to the following:

Under the FOI, I would like the advice provided to government referenced
in Senate Estimates Question on Notice AE24-038, which was published
online in May 2024, which says: "There is no record of advice being
provided to the Government, following the making of orders by the High
Court on 8 November 2023 in NZYQ v Minister for Immigration, Citizenship
and Multicultural Affairs [2023] HCA 37, that the only response necessary
was to release the plaintiff". Give the department has already indicated
what is not in the advice, what is in the advice.

Intention to refuse request

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Section 24 of the FOI Act provides that if the Department is satisfied
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(1)(a)(i) the work involved in the processing of the request would
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(1)(b) the request does not satisfy the requirement in section
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I consider that the request does not satisfy the requirements of section
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Kind Regards

David
Team Leader – Authorised FOI Officer, Freedom of Information
Position Number 60157647

Privacy, FOI and Records Management Branch

Legal Group

Department of Home Affairs

E: [2][Department of Home Affairs request email]

Personal-Privacy
OFFICIAL: Sensitive

show quoted sections

Dear FOI,

Thanks for your email. To clarify I am seeking the advice provide to the Minister for Immigration sent after 8 November 2023 that indicates the course of action required in relation to the cohort of NZYQ detainees.

I draw your attention to the Senate Estimates Question on Notice AE24-038, which was published
online in May 2024, which says: "There is no record of advice being provided to the Government, following the making of orders by the High Court on 8 November 2023 in NZYQ v Minister for Immigration, Citizenship
and Multicultural Affairs [2023] HCA 37, that the only response necessary was to release the plaintiff". Because this document demonstrates the department is prepared to say what is not in the advice, it reduces your credibility in citing legal priviledge if you were minded to deny this request.

Yours sincerely,

Oliver Smith

OFFICIAL: Sensitive
Personal-Privacy

Hello Oliver,

Thank you for your response to the Practical Refusal Notice.

Can we please further clarify and ask if your scope can be further revised
to the following:-

“The formal advice provided to Minister Giles, sent after 8 November 2023,
that indicated that the NZYQ High Court decision applied to other people
in the same circumstances.”

Please provide your response if you agree/disagree to the revised scope by
21 June 2024.

Kind Regards

David
Team Leader – Authorised FOI Officer, Freedom of Information
Position Number 60157647

Privacy, FOI and Records Management Branch

Legal Group

Department of Home Affairs

E: [1][Department of Home Affairs request email]

Personal-Privacy
OFFICIAL: Sensitive

From: Oliver Smith <[FOI #11492 email]>
Sent: Tuesday, 11 June 2024 10:41 AM
To: FOI <[Department of Home Affairs request email]>
Subject: Re: FA 24/06/00292 - Practical Refusal Notice - Due 21 June 2024
[SEC=OFFICIAL:Sensitive, ACCESS=Personal-Privacy]

Dear FOI,

Thanks for your email. To clarify I am seeking the advice provide to the
Minister for Immigration sent after 8 November 2023 that indicates the
course of action required in relation to the cohort of NZYQ detainees.

I draw your attention to the Senate Estimates Question on Notice AE24-038,
which was published

online in May 2024, which says: "There is no record of advice being
provided to the Government, following the making of orders by the High
Court on 8 November 2023 in NZYQ v Minister for Immigration, Citizenship

and Multicultural Affairs [2023] HCA 37, that the only response necessary
was to release the plaintiff". Because this document demonstrates the
department is prepared to say what is not in the advice, it reduces your
credibility in citing legal priviledge if you were minded to deny this
request.

Yours sincerely,

Oliver Smith

show quoted sections

Dear FOI,

Thanks for the email, I agree to the suggested revised scope.

Yours sincerely,

Oliver Smith

OFFICIAL: Sensitive
Personal-Privacy

In reply please quote:

FOI Request: FA 24/06/00292

File Number: FA24/06/00292

Dear Oliver Smith

Acknowledgement of Freedom of Information Access request

This letter acknowledges that on 5 June 2024 the Department of Home
Affairs (the Department) received your request to access documents held
by the Department under the Freedom of Information Act 1982 (the FOI
Act). This letter also provides important information about your request.

Scope of request

You have requested access to the following:

Revised Scope 12/06
The formal advice provided to Minister Giles, sent after 8 November 2023,
that indicated that the NZYQ High Court decision applied to other people
in the same circumstances.

Revised scope 11/06/2024
To clarify I am seeking the advice provide to the Minister for Immigration
sent after 8 November 2023 that indicates the course of action required in
relation to the cohort of NZYQ detainees.
I draw your attention to the Senate Estimates Question on Notice
AE24-038, which was published online in May 2024, which says: "There is no
record of advice being provided to the Government, following the making of
orders by the High Court on 8 November 2023 in NZYQ v Minister for
Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, that
the only response necessary was to release the plaintiff". Because this
document demonstrates the department is prepared to say what is not in the
advice, it reduces your credibility in citing legal privilege if you were
minded to deny this request.

Original Scope 05/06/2024
Under the FOI, I would like the advice provided to government referenced
in Senate Estimates Question on Notice AE24-038, which was published
online in May 2024, which says: "There is no record of advice being
provided to the Government, following the making of orders by the High
Court on 8 November 2023 in NZYQ v Minister for Immigration, Citizenship
and Multicultural Affairs [2023] HCA 37, that the only response necessary
was to release the plaintiff". Give the department has already indicated
what is not in the advice, what is in the advice.

Your request has been allocated FOI request number FA 24/06/00292. Please
include your FOI request number in all correspondence with the Freedom of
Information Section.

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Kind Regards

David
Team Leader – Authorised FOI Officer, Freedom of Information
Position Number 60157647

Privacy, FOI and Records Management Branch

Legal Group

Department of Home Affairs

E: [5][Department of Home Affairs request email]

Personal-Privacy
OFFICIAL: Sensitive

show quoted sections

OFFICIAL: Sensitive
Personal-Privacy

In reply please quote:
FOI Request: FA 24/06/00292
File Number: FA24/06/00292

Dear Oliver Smith,

I refer to your request received on 05 June 2024 for access to documents under the FOI Act.
The current due date for your request is 05 July 2024. The Department seeks your agreement under section 15AA of the FOI Act to extend the timeframe for the processing of your request by 30 days. This would extend the due date for your request to 05 August 2024.

The reason we are seeking an extension of time is due to demand for Departmental documents is high and we continue to experience increasing volumes of incoming requests particularly in recent months. Each request received by the Department is managed in the context of this large volume which can impact the timeliness of our decisions and as such we seek agreement from applicants on extensions of time where possible. We are endeavouring to ensure, as an applicant, you understand the likely timeframe for your request to be finalised. We continue to try to process requests as quickly as possible regardless of if an extension is provided.
If you could please provide a response to this request by close of business, 26 June 2024

Kind Regards,

David
Team Leader – Authorised FOI Officer, Freedom of Information
Position Number 60157647
Privacy, FOI and Records Management Branch
Legal Group
Department of Home Affairs
E: [Department of Home Affairs request email]

Personal-Privacy
OFFICIAL: Sensitive

Important Notice: The content of this email is intended only for use by the individual or entity to whom it is addressed. If you have received this email by mistake, please advise the sender and delete the message and attachments immediately. This email, including attachments, may contain confidential, sensitive, legally privileged and/or copyright information.

Any review, retransmission, dissemination or other use of this information by persons or entities other than the intended recipient is prohibited. The Department of Home Affairs, the ABF and the National Emergency Management Agency respect your privacy and have obligations under the Privacy Act 1988.

Unsolicited commercial emails MUST NOT be sent to the originator of this email.

Dear FOI,

I agree to thank request.

Yours sincerely,

Oliver Smith

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OFFICIAL

Dear Oliver Smith

FOI request FA 24/06/00292

I refer to your FOI request received on 5 June 2024, seeking access to the
following:

Revised Scope 12/06
The formal advice provided to Minister Giles, sent after 8 November 2023,
that indicated that the NZYQ High Court decision applied to other people
in the same circumstances.

The Department has made a decision on this request. Please find attached
the decision record.

This request has now been closed.

Kind regards

Tony

Position number: 60186973

Authorised FOI Officer | Freedom of Information

Privacy, FOI and Records Management Branch | Legal Group

Department of Home Affairs

E: [1][Department of Home Affairs request email]

[2]Acknowledgement of Country Signature Block Graphic 2022

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AE24-038 Advice Provided to Minister on Release of Detainees on 8 November 2023

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