OFFICIAL
Freedom of Information (FOI) request
Notice of Decision
Reference: FOI/2023/126
Mr Oliver Smith
By email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
I refer to your request to the Department of the Prime Minister and Cabinet (the Department) of
2 May 2023, seeking 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 under the
FOI Act.
Scope of request
You set out your request in the fol owing terms:
… all documents provided to members of National Cabinet in relation to any discussion or
agenda item about Net Overseas Migration or Australia's population that took place at the
National Cabinet meeting held on 28 April 2023.
Request decided out of time
A decision on your request was due 3 July 2023. Unfortunately the Department was unable to
complete the processing of your request by the due date. In these circumstances the Department
fol ows the advice in the Information Commissioner Guidelines at paragraph 3.163.
As a result review rights for your request can be direct to the Information Commissioner, information
on how to submit a review is at the bottom of this letter.
Authorised decision-maker
I am authorised to make this decision in accordance with arrangements approved by the
Department’s Secretary under section 23 of the FOI Act.
Postal Address: PO Box 6500, CANBERRA ACT 2600
Telephone: +61 2 6271 5849 Fax: +61 2 6271 5776 www.pmc.gov.au ABN: 18 108 001 191
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OFFICIAL
Material taken into account
In reaching my decision I referred to the fol owing:
• the terms of your request
• the FOI Act
• consultation with third parties
• the Guidelines issued by the Information Commissioner under section 93A of the FOI Act
(the Guidelines)
Documents in scope of request
The Department has identified 2 documents that fall within the scope of your request.
Decision
I have decided to grant access in part, with exempt and irrelevant material deleted. The Schedule of
Documents at Attachment A set out the decision with respect to each document.
The material subject to access is enclosed.
Reason for decision
My findings of fact and reasons for deciding that certain information is irrelevant are set out below.
1.
Deliberative process
Section 47C of the FOI Act provides:
A document is conditionally exempt if its disclosure under this Act would disclose matter
(deliberative matter) in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purposes of, the deliberative processes involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth.
The document found to contain deliberative material includes a National Cabinet Paper and its
attachment. The purpose of this paper is to brief members of National Cabinet for their deliberations
and contains advice from relevant agencies. I am satisfied the artefacts exemplify the ‘thinking
processes’ and ‘deliberative process’ as discussed in the FOI Guidelines
1.
1 6.58-6.62 of the FOI Guidelines
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OFFICIAL
In reaching this decision I have had regard to the exceptions set out in section 47C(2) and (3) of the
FOI Act and the discussion within the FOI Guidelines on these matters. In the circumstances these are
not applicable.
I am satisfied that the document contains deliberative material and the material, as referenced in the
Schedule of Documents is exempt under section 47C of the FOI Act.
2.
Public interest
The FOI Act provides that a conditional y exempt document must nevertheless be disclosed unless its
disclosure would, on balance, be contrary to the public interest
2. In determining whether its disclosure
would be contrary to the public interest, the FOI Act requires a decision-maker to balance the public
interest factors.
I have decided that material as discussed above is conditional exempt, thus I am now required to
consider the public interest factors, in doing so I have not taken into account the irrelevant factors as
set out in s 11B(4) of the FOI Act.
Factors favouring access
I have noted the objects of the FOI Act
3 and the factors favouring access as listed in s 11B(3) of the
FOI Act. Having regard to the material before me and the circumstances of the material found to be
conditional y exempt, I find the fol owing relevant:
• access would promote the objects of the FOI Act
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• access may inform debate on a matter of public importance
• access may promote effective oversight of public expenditure
Factors favouring non-disclosure
The FOI Act does not set out any public interest factors against disclosure and require me to have
regard to the FOI Guidelines in order to work out if disclosure would, on balance, be contrary to the
public interest
5.
The FOI Guidelines contain a non-exhaustive list of factors that, depending on the circumstances may
weigh against disclosure. I consider the relevant factors include:
2 section 11A(5) of the FOI Act
3 section 3 of the FOI Act
4 section 11B(3)(a) of the FOI Act
5 section 11B(5) of the FOI Act
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OFFICIAL
• disclosure of the deliberative aspects of the agency advice to government and the Prime
Minister, would affect trusted relationships and inhibit the inclusion of ful and frank advice to
briefing materials
I have further considered, in balancing these factors, the extent to which the exempt material would
go towards the public interest. In the circumstances I find the pertinent facts about the outcomes and
decisions of National Cabinet has been made public, as per the terms of reference for publication of
such material on the Federation website.
I have balanced these factors and find the factors favouring non-disclosure outweigh those favouring
disclosure. Accordingly, I am of the view that disclosure of the deliberative material would be contrary
to the public interest.
3.
Deletion of irrelevant matter
Section 22 of the FOI Act provides that the Department may prepare an edited copy of documents, to
remove information reasonably regarded as irrelevant to the request.
I have found that the documents contain material that is irrelevant to your request. I have decided to
modify the documents by deleting the irrelevant material under section 22(1)(a)(i ) of the FOI Act.
The remainder of the documents have been released to you.
Review rights
If you disagree with my decision you may apply for review with the Information Commissioner.
Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to
review my decision. An application for review by the Information Commissioner must be made in
writing within 60 days after the date of this letter.
More information about Information Commissioner review is available
here.6
FOI Complaints
If you are unhappy with the way we have handled your FOI request, please let us know what we could
have done better. If you are not satisfied with our response, you can make a complaint to the
Australian Information Commissioner. A complaint to the Information Commissioner must be made in
writing. More information about complaints is available
here.7
6 https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-information-reviews/information-
commissioner-review
7 https://www.oaic.gov.au/freedom-of-information/your-freedom-of-information-rights/freedom-of-information-complaints/make-an-foi-
complaint
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OFFICIAL
If you wish to discuss any aspect of your requests, you can contact the FOI Section by email at
xxx@xxx.xxx.xx. Yours sincerely
Hope Peisley
Assistant Secretary
Commonwealth-State Relations Branch
Department of the Prime Minister and Cabinet
23 January 2024
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Document Outline
