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

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References

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

I am writing to advise you that I intend to refuse your request on the
basis that a practical refusal reason exists. However, before I make a
final decision to do this, you have an opportunity to revise your request
to remove the practical refusal reason. This is called a ‘request
consultation process’. You have 14 days to respond to this notice in one
of the ways set out below.

Power to refuse request

Section 24 of the FOI Act provides that if the Department is satisfied
that a practical refusal reason exists in relation to a request, the
Department must undertake a consultation process with you, and if, after
that consultation process, the Department remains satisfied that the
practical refusal reason still exists, the Department may refuse to give
you access to the documents subject to the request.

Practical refusal

A practical refusal reason exists under section 24AA of the FOI Act if
either (or both) of the following applies:

(1)(a)(i) the work involved in the processing of the request would
substantially and unreasonably divert the resources of the Department from
its other operations

(1)(b) the request does not satisfy the requirement in section
15(2)(b) of the FOI Act, which requires you to provide such information
concerning the document you are seeking access to, to enable the
Department to be able to identify it.

I consider that the request does not satisfy the requirements of section
15(2)(b) of the FOI Act, and accordingly that practical refusal reasons
exist under section 24AA(1)(b) of the FOI Act.

Reasons for practical refusal

In order for your request to be valid for the purposes of the FOI Act, it
must provide such information concerning the documents that you are
seeking access to, as is reasonably necessary to enable the Department to
identify the documents.

Given the broad nature of the activities undertaken by the Department, I
do not consider that you have provided a reasonable description of the
documents to which you are seeking access.

As such, I am satisfied that your request is not valid and a practical
refusal reason exists in this request. You have not provided sufficient
information concerning the document you are seeking to access, to enable
the Department to be able to identify it.

Request Consultation Process

To enable the Department to consider your request for access under the FOI
Act, the Department will require sufficient information concerning the
specific existing documents to which you seek access, in order to enable
the Department to identify those documents.

You do not necessarily need to be able to identify the exact documents you
are seeking, but you need to provide the Department with sufficient
information to enable us to identify them. Given the very broad nature of
the functions that this Department has responsibility for, at a very
minimum, we will require advice as to which business areas might hold the
documents you are seeking to access. A copy of the Department’s
organisation chart is available on the Department’s website [1]here which
may assist you with this.

In addition, you may wish to consider providing a timeframe for your
request to assist the Department’s officers to reasonably be able to
identify the documents to which you seek access.

You now have an opportunity to revise your request to ensure it is a
valid request under section 15(2)(b) of the FOI Act andto enable it to
proceed.

· Scope is unclear as to what is being requested – please clarify
scope

· Right to Know has already requested all the advice, and the
decisions and documents in relation to those other numerous requests are
nearing finalisation and release

Under section 24AB(6) of the FOI Act, you have 14 days to do one of the
following:

· withdraw your request;

· make a revised request;

· indicate that you do not wish to revise your request.

If you do not do one of the three things listed above during the
consultation period (14 days), or you do not consult the contact person
listed below during this period, your request will be taken to have been
withdrawn in accordance with section 24AB(7) of the FOI Act.

Contact

Should you wish to revise your request or have any questions in relation
to this process, please do not hesitate to contact [Department of Home Affairs request email].

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

-----Original Message-----
From: Oliver Smith <[FOI #11492 email]>
Sent: Wednesday, 5 June 2024 12:05 PM
To: FOI <[Department of Home Affairs request email]>
Subject: Freedom of Information request - AE24-038 Advice Provided to
Minister on Release of Detainees on 8 November 2023

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

-------------------------------------------------------------------

Please use this email address for all replies to this request:

[3][FOI #11492 email]

Is [4][Department of Home Affairs request email] the wrong address for Freedom of Information
requests to Department of Home Affairs? If so, please contact us using
this form:

[5]https://www.righttoknow.org.au/change_re...

This request has been made by an individual using Right to Know. This
message and any reply that you make will be published on the internet.
More information on how Right to Know works can be found at:

[6]https://www.righttoknow.org.au/help/offi...

Please note that in some cases publication of requests and responses will
be delayed.

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

-------------------------------------------------------------------

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.

References

Visible links
1. https://www.homeaffairs.gov.au/about-us-...
2. mailto:[Department of Home Affairs request email]
3. mailto:[FOI #11492 email]
4. mailto:[Department of Home Affairs request email]
5. https://www.righttoknow.org.au/change_re...
6. https://www.righttoknow.org.au/help/offi...

hide quoted sections

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

-----Original Message-----

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

I am writing to advise you that I intend to refuse your request on the

basis that a practical refusal reason exists. However, before I make a

final decision to do this, you have an opportunity to revise your request

to remove the practical refusal reason. This is called a ‘request

consultation process’. You have 14 days to respond to this notice in one

of the ways set out below.

Power to refuse request

Section 24 of the FOI Act provides that if the Department is satisfied

that a practical refusal reason exists in relation to a request, the

Department must undertake a consultation process with you, and if, after

that consultation process, the Department remains satisfied that the

practical refusal reason still exists, the Department may refuse to give

you access to the documents subject to the request.

Practical refusal

A practical refusal reason exists under section 24AA of the FOI Act if

either (or both) of the following applies:

(1)(a)(i) the work involved in the processing of the request would

substantially and unreasonably divert the resources of the Department
from

its other operations

(1)(b) the request does not satisfy the requirement in section

15(2)(b) of the FOI Act, which requires you to provide such information

concerning the document you are seeking access to, to enable the

Department to be able to identify it.

I consider that the request does not satisfy the requirements of section

15(2)(b) of the FOI Act, and accordingly that practical refusal reasons

exist under section 24AA(1)(b) of the FOI Act.

Reasons for practical refusal

In order for your request to be valid for the purposes of the FOI Act, it

must provide such information concerning the documents that you are

seeking access to, as is reasonably necessary to enable the Department to

identify the documents.

Given the broad nature of the activities undertaken by the Department, I

do not consider that you have provided a reasonable description of the

documents to which you are seeking access.

As such, I am satisfied that your request is not valid and a practical

refusal reason exists in this request. You have not provided sufficient

information concerning the document you are seeking to access, to enable

the Department to be able to identify it.

Request Consultation Process

To enable the Department to consider your request for access under the
FOI

Act, the Department will require sufficient information concerning the

specific existing documents to which you seek access, in order to enable

the Department to identify those documents.

You do not necessarily need to be able to identify the exact documents
you

are seeking, but you need to provide the Department with sufficient

information to enable us to identify them. Given the very broad nature of

the functions that this Department has responsibility for, at a very

minimum, we will require advice as to which business areas might hold the

documents you are seeking to access. A copy of the Department’s

organisation chart is available on the Department’s website [1]here which

may assist you with this.

In addition, you may wish to consider providing a timeframe for your

request to assist the Department’s officers to reasonably be able to

identify the documents to which you seek access.

You now have an opportunity to revise your request to ensure it is a

valid request under section 15(2)(b) of the FOI Act andto enable it to

proceed.

· Scope is unclear as to what is being requested – please clarify

scope

· Right to Know has already requested all the advice, and the

decisions and documents in relation to those other numerous requests are

nearing finalisation and release

Under section 24AB(6) of the FOI Act, you have 14 days to do one of the

following:

· withdraw your request;

· make a revised request;

· indicate that you do not wish to revise your request.

If you do not do one of the three things listed above during the

consultation period (14 days), or you do not consult the contact person

listed below during this period, your request will be taken to have been

withdrawn in accordance with section 24AB(7) of the FOI Act.

Contact

Should you wish to revise your request or have any questions in relation

to this process, please do not hesitate to contact [Department of Home
Affairs request email].

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

-------------------------------------------------------------------

Please use this email address for all replies to this request:

[2][FOI #11492 email]

This request has been made by an individual using Right to Know. This
message and any reply that you make will be published on the internet.
More information on how Right to Know works can be found at:

[3]https://www.righttoknow.org.au/help/offi...

Please note that in some cases publication of requests and responses will
be delayed.

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

-------------------------------------------------------------------

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.

References

Visible links
1. mailto:[Department of Home Affairs request email]
2. mailto:[FOI #11492 email]
3. https://www.righttoknow.org.au/help/offi...

hide quoted sections

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.

Timeframe

The timeframe for processing a request is 30 days from the day we receive
your request, as set out in the FOI Act.

Your review rights in relation to your request are available on [1]Freedom
of information reviews | OAIC.

Fees and Charges

Charges do not apply to requests from individuals seeking access to
documents about themselves. However, a charge may apply to all other
requests for access to documents.

Charges are based on the amount of time the Department spends on your
request. Charges can range from $10 to over $1,000 depending on the
complexity and scope of your request. The Office of the Australian
Information Commissioner reported that across the public service, the
average charge notified was $335.50 in 2020-21.

If a charge applies, you will be issued with a Notice of Charge that
explains the charge and your options.

Detailed information about FOI charges that may apply to your FOI request
is available on [2]the Department’s website.

We do not provide personal details of staff or non-public facing
operational email addresses

The Department’s practice is to exclude the personal details of Government
employees, including contractors, not in the Senior Executive Service
(SES), as well as the direct contact details of SES staff, contained in
documents that fall within scope of an FOI request. If you require
personal details of non-SES officers, or direct contact details of SES
staff, please inform us so the decision maker may consider your request.
Otherwise we will take it that you agree to that information being
excluded from the scope of your request as irrelevant under section
22(1)(a)(ii) of the FOI Act. However names of staff that have previously
been released in departmental correspondence may be disclosed.

We do not provide duplicated documents

If the FOI decision-maker deems a document to be a duplicate, they will
not assess those pages as part of your FOI request. This means that if a
there is a decision to release the document to you, you will receive only
one copy, even if multiple copies of that document exist.

Publication of document

Released documents you request may be published to our website.

Where documents are released to you in response to your request, the
Department may be required to publish these documents on its website
within 10 working days in accordance with section 11C of the FOI Act.
Publication will not be required where the documents contain personal or
business affairs information.

How to reduce or withdraw your request

Reducing the scope of your request can reduce the time and charges
associated with processing your FOI request.

To reduce or withdraw your request, contact the FOI section at
[3][Department of Home Affairs request email] and include your FOI request number.

Contacting the FOI Section

Should you wish to discuss your request you may contact the FOI Section at
[4][Department of Home Affairs request email].

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

-----Original Message-----
From: Oliver Smith <[FOI #11492 email]>
Sent: Wednesday, 5 June 2024 12:05 PM
To: FOI <[Department of Home Affairs request email]>
Subject: Freedom of Information request - AE24-038 Advice Provided to
Minister on Release of Detainees on 8 November 2023

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

-------------------------------------------------------------------

Please use this email address for all replies to this request:

[6][FOI #11492 email]

Is [7][Department of Home Affairs request email] the wrong address for Freedom of Information
requests to Department of Home Affairs? If so, please contact us using
this form:

[8]https://www.righttoknow.org.au/change_re...

This request has been made by an individual using Right to Know. This
message and any reply that you make will be published on the internet.
More information on how Right to Know works can be found at:

[9]https://www.righttoknow.org.au/help/offi...

Please note that in some cases publication of requests and responses will
be delayed.

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

-------------------------------------------------------------------

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.

References

Visible links
1. https://www.oaic.gov.au/freedom-of-infor...
2. https://www.homeaffairs.gov.au/access-an...
3. mailto:[Department of Home Affairs request email]
4. mailto:[Department of Home Affairs request email]
5. mailto:[Department of Home Affairs request email]
6. mailto:[FOI #11492 email]
7. mailto:[Department of Home Affairs request email]
8. https://www.righttoknow.org.au/change_re...
9. https://www.righttoknow.org.au/help/offi...

hide 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.

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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

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