fa 230601261 decision record Smith Oliver.pdf

6 October 2023
Mr Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:  FA 23/06/01261
File Number:
FA23/06/01261
Dear Mr Smith
Freedom of Information (FOI) request – Access Decision
On 21 June 2023, 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 under the
FOI Act.
1
Scope of request
You have requested access to the following documents:
Please provide a list of Ministerial Submissions sent to the Andrew Giles during his
appointment as the Minister for Immigration and Citizenship, including PDR No.,
subject and date sent to the office.
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 documents or to amend or annotate records.
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
documents to which you sought access
•  Advice from the Department of the Prime Minister and Cabinet FOI team

PO BOX 25 Belconnen ACT 2616 • xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au

4
Documents in scope of request
In  accordance with section 17 of the FOI Act, the Department has used its computer system to
produce 1,062 ministerial submissions (min subs) titles that falls within  the scope of your request.
The list of min subs existed in the possession of the Department on 21 June 2023 when your FOI
request was received.
5
Decision
The decision in relation to the min sub titles in the possession of the Department which fall within
the scope of your request is as follows:
•  Release the titles of 1,049 ministerial submissions in part with deletions
•  13 are out of scope
6
Reasons for Decision
Detailed reasons for my decision are set out below.
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.
I  have decided that parts of  documents marked ‘s22(1)(a)(i )’ would disclose information that
could reasonably be regarded as irrelevant to your request. I  have prepared an edited copy of
the documents, with the irrelevant material deleted pursuant to section 22(1)(a)(i ) of the FOI Act.
The remainder of the documents have been considered for release to you as they are relevant
to your request.
6.2  Section 22 of the FOI  Act – deletion of exempt material
I  have decided to prepare an edited list of the titles of min subs that fall within the scope of your
request.
6.3  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.
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.
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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 fol ows
(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 is relevant.2 That 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).

The requested documents contain information which pertains to security as defined above, and
I  am satisfied that disclosure of this material would cause damage to the security of the
Commonwealth. As such I  have decided that the requested documents are exempt in full from
disclosure under section 33(a)(i) of the FOI Act.
Section 33(a)(iii) 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 international relations of the
Commonwealth.
The phrase 'international relations' has been interpreted as meaning the ability of the Australian
Government to maintain good working  relations with  other governments and international
organisations and to protect the flow of confidential information between them.  The expectation
of damage to international relations must be reasonable in all the circumstances, having regard
to the nature of the information; the circumstances in which it was communicated; and the nature


1 Church of Scientology v Woodward (1982) 154 CLR 25 at [19].
2 See Staats and National Archives of Australia [2010] AATA 531 at [99].
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and extent of the relationship.  There must be real and substantial grounds for the conclusion
that are supported by evidence.
Maintaining strong bilateral and multilateral relationship with foreign governments requires trust.
Integral to maintaining trusted relationships is the  capacity for the Australian Government to
protect its  communications with  foreign governments, including by  maintaining confidentiality
over the flow of information. Officials of the respective countries, including those based at
embassies in  Australia, need to be able to negotiate and share information with the assurance
that the details of  their discussions or correspondence wil   not be inappropriately or unlawfully
disclosed.
I  consider that the  release of  the information marked 's33(a)(i i)' in the document(s) would, or
could reasonably be expected to cause damage to the Australian Government's international
relations.
As such I  have decided that the information redacted and marked 's33(a)(iii)" is exempt from
disclosure under section 33(a)(i i) of the FOI Act.
6.4  Section 34 – Cabinet documents
Section 34(1)(a) of the FOI Act permits exemption of a document if both of the following are
satisfied:
(i)
the document has been submitted to the Cabinet for its  consideration, or
is or was proposed by a Minister to be so submitted, and
(ii)
it  was  brought into existence for the dominant purpose of submission for
consideration by the Cabinet
The list of min sub titles exempted under section 34(1)(a) was submitted to the Department of
Prime  Minister and Cabinet FOI team for their consideration and advice was  received that the
document was  brought into existence for the dominant purpose of briefing a Minister on a
submission to Cabinet.
The documents contain information which, if disclosed, would reveal Cabinet deliberations and
information that has not, to date, been official y disclosed.
Accordingly, I  have decided that the information marked ‘s34’ is exempt  under section 34(1)(a)
of the FOI Act.
Section 34(1)(c) of the FOI Act permits exemption of a document if it was brought into existence
for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies.
At the time the titles/documents were created, they were brought into existence for the dominant
purpose of briefing the Minister for Home Affairs on a submission to Cabinet.
Accordingly, I am satisfied that the documents are exempt under section 34(1)(c).
Section 34(2) of the FOI Act exempts a document that is a copy or part of or an extract of a
document that is itself exempt from disclosure under section 34(1) of the Act.
The documents are copies of, or a part of, or an extract of a document submitted to Cabinet or
proposed to be submitted to Cabinet and created for that dominant purpose.
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The list of min sub titles exempted under section 34(2) was submitted to the Department of Prime
Minister and Cabinet for its consideration and advice was  received that the documents were
brought into existence for the dominant purpose of briefing a Minister on a submission to Cabinet
Accordingly, I am satisfied that the documents are exempt under section 34(2).
Section 34(3)  exempts documents to the extent that disclosure would reveal a Cabinet
deliberation or decision, unless the existence of  the deliberation or decision has been officially
disclosed. Deliberation has been interpreted as active debate in Parliament or its weighing up of
alternatives, with a view to reaching a decision on a matter.
I  find that the documents exempted under section 34(3) would, if disclosed, involve the disclosure
of deliberations of the Cabinet.
6.5  Section 42 of the FOI  Act – Legal Professional Privilege
Section 42 of the FOI Act provides that a document is an exempt document if it is of such a nature
that it would be privileged from production in legal proceedings on the ground of legal professional
privilege.
I am satisfied that the title of some of the ministerial submissions and parts of some ministerial
submissions comprise confidential communications passing between the Department   and its
legal advisers, for the dominant purpose of giving or receiving legal advice.
In  determining that the communication is privileged, I  have taken into the consideration the
following:  •  there is a legal adviser-client relationship
•  the communication was for the purpose of giving and/or receiving legal advice;
•  the advice given was independent and
•  the advice was  given on a legal-in-confidence basis  and  was  therefore
confidential.
The content of these documents are not part of the rules, guidelines, practices or precedents
relating to the decisions and recommendations of the Department. The documents do not fall
within the definition of operational information and remain subject to legal professional privilege.
I  have decided that the titles of these ministerial submissions are exempt from disclosure under
section 42 of the FOI Act.
6.6  Section 47C of the FOI  Act – Deliberative Processes
Section 47C 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.
‘Deliberative matter’  includes opinion, advice or  recommendation obtained, prepared or
recorded, or consultation or deliberation that has taken place, in the deliberative processes of an
agency.
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‘Deliberative processes’ generally involves “the process of weighing up or evaluating competing
arguments or considerations”3 and the ‘thinking processes –the  process of  reflection, for
example, upon the wisdom  and expediency of a proposal, a particular decision or a course of
action.’4
Parts of the titles of some ministerial submissions and some submissions contains advice,
opinions and recommendations prepared or recorded in the course of, or for the purposes of, the
deliberative processes involved in the functions of Department.
I  am satisfied that this deliberative matter relates to a process that was undertaken within
government to consider whether and how to make or implement a decision, revise or prepare a
policy, administer or review a program, or some similar activity. 5
Disclosure of this deliberative information could reasonably be expected to inhibit full and frank
advice from the Department to its Minister, and, as a result, ful  consideration by the Government
on any potential future consideration of amendments to policy making or program management.
Section 47C(2) provides that “deliberative matter” does not include purely factual material. I have
had regard to the fact that “purely factual material” does not extend to factual material that is an
integral part of the deliberative content and purpose of a document, or is embedded in or
intertwined with the deliberative content such that it is impractical to excise it.6 A factual summary
prepared to aid a complex issue may be classed as purely factual material, but may also be of a
character as to disclose a process of section involving opinion, advice or recommendation. As
such, a  conclusion which involves a deliberative process may well  prevent material from being
purely factual7.
I am further satisfied that the factors set out in subsection (3) do not apply in this instance.
I  have decided that the information is conditionally exempt under section 47C 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 at
paragraph 6.7 below.
6.7  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 effect on the proper and
efficient conduct of the operations of an agency.
I  consider that the disclosure of some of the titles marked ‘s47E(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.


3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
4
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
5
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA  962
6 Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
7 Harris v Australian Broadcasting Corporation and Others (1984) 1 FCR 150

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Managing the security and integrity of Australia's borders 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 documents are conditionally exempt under section 47E(d) of the
FOI Act.  Access to a conditionally exempt document must general y 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 at paragraph 6.8 below.
6.8  Section 47F of the FOI Act – Personal Privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure
under the FOI  Act would  involve the unreasonable disclosure of personal information of any
person. ‘Personal information’ means information or an opinion about an identified individual, or
an individual who is reasonably identifiable, whether the information or opinion is true or not, and
whether the information or opinion is recorded in a material form or not (see section 4 of the FOI
Act and section 6 of the Privacy Act 1988).
I  consider that disclosure of the information marked 's47F' in the documents would disclose
personal information relating to  third  parties. The  information within  the documents would
reasonably identify a person, either through names, positions or  descriptions of their role or
employment circumstance.
The FOI Act states that, when deciding whether the disclosure of the personal information would
be ‘unreasonable’, I must have regard to the following four factors set out in s.47F(2) of the
FOI Act:
•  the extent to which the information is well  known;
•  whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document;
•  the availability of the information from publicly available resources;
•  any other matters that I consider relevant.
I  have considered each of these factors below.
The information relating to the third parties is not well known and would only be known to a limited
group of people with a business need to know. As this information is only known to a limited
group of people, the individuals concerned are not generally known to be associated with the
matters discussed in the document. This information is not available from publicly accessible
sources.
I  do not consider that the information relating specifical y to the third parties would be relevant to
the broader scope of your request, as you are seeking access to titles of ministerial submissions
rather than information which wholly relates to other individuals.
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I  am  satisfied that the disclosure of the information within the documents would  involve an
unreasonable disclosure of personal information about a number of individuals.
I  have decided that the information referred to above is conditionally exempt under section 47F
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 at paragraph 6.9 below.
6.9  The public interest – section 11A of the FOI Act
As  I  have decided that parts of  the documents are conditionally exempt,  I  am  now  required to
consider whether access to the conditional y 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.
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 documents would promote the objects of the FOI Act.
•
The subject matter of the documents does have the character of public importance
and that there may be broad public interest in the documents.
•
No  insights into public expenditure wil   be provided through examination of the
documents.
•
You do not require access to the documents 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 documents:
•
A  Ministerial Submission plays an important role in the relationship between a
Department and its Minister. Its  purpose is to provide frank and honest advice. It  is
inherently confidential between the Department and its Minister and the preparation
of a  Ministerial Submission is  essentially intended for the audience of that Minister
alone. A precedent of public disclosure of advice given as a part of a Ministerial
Submission would result in:
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o
concerns existing in the open and honest nature of advice being provided which
may then hinder future deliberations and decision making processes for the
Department and the Government as a whole and
o
future Ministerial Submissions being prepared with a different audience in mind,
which would compromise the quality of the advice being prepared for the
Minister.
•
I  consider that the public interest in protecting the process of the provision of free and
honest confidential advice by a Department to its Minister has, on balance, more
weight, than the public interest that might exist  in disclosing the deliberative matter.
Endangering the proper working relationship that a Department has with its Minster
and its ability to provide its Minister with  honest advice confidentially would  be
contrary to the public interest.
•
Disclosure of the parts of the documents that are conditional y 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.
•
Disclosure of the personal information which is  conditionally exempt under section
47F of the FOI Act could reasonably be expected to prejudice the protection of those
individuals' right to privacy.
•
The Department is committed to complying with its obligations under the Privacy Act
1988, which sets out standards and obligations that regulate how  the Department
must handle and manage personal information. It is firmly  in the public interest that
the Department uphold the rights of individuals to their own  privacy and meets its
obligations under the  Privacy Act.  I  consider that non-compliance with  the
Department’s statutory obligations concerning the protection of personal information
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
Review  by the Office of the Australian Information Commissioner
You may apply directly to the Office of the Australian Information Commissioner (OAIC) for a
review of this decision.  You must apply in writing within 60 days of this notice.  For further
information about review rights and how to submit a request for a review to the OAIC, please see
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
9
Making a Complaint
You may complain to the Australian Information Commissioner about action taken by the
Department in relation to your request.
Your enquiries to the Australian Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
Email  xxxxxxxxx@xxxx.xxx.xx
There is no particular form required to make  a complaint to  the Australian Information
Commissioner. The request should be in writing and should set out the grounds on which it is
considered that the action taken in relation to the request should be investigated and identify the
Department of Home Affairs as the relevant agency.
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]

Steve Biddle
Position No: 60040191
Authorised Decision Maker
Department of Home Affairs

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