FA 23 11 00777 Decision Record Smith Oliver.pdf

21 December 2023
Mr Oliver Smith
BY EMAIL:  xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 23/11/00777
File Number:
FA23/11/00777
Dear Mr Smith
Freedom of Information (FOI) request – Access Decision
On 14 November 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:
Under the FOI Act, I am seeking the document with PDR Number: MS22-001225
called Long term detention overview.
Any personal information can be redacted to expedite this process.
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 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)
•  advice from Departmental officers with responsibility for matters relating to the
documents to which you sought access

Level 3/299 Adelaide Street • xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au

4
Documents in scope of request
The Department has identified two documents, MS22-001225  -  (including At achment A) as
falling within the scope of your request. These documents were in the possession of the
Department on 14 November 2023 when your request was received.
5
Decision
The decision in relation to the documents in the possession of the Department which fall within
the scope of your request is as follows:
•  Release one document in part with deletions
6
Reasons for Decision
Detailed reasons for my decision are set out below.
My findings of fact and reasons for deciding that the exemption provisions  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.
On 16 November 2023, the Department advised you that its policy is to exclude the personal
details of officers not in the Senior Executive Service (SES), as well as the mobile and work
telephone numbers of SES staff, contained in documents that fall within scope of an FOI 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 33 of the FOI Act – Documents affecting National Security, Defence or
International Relations

Section 33(a)(i 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 international relations of the
Commonwealth.

The FOI Guidelines [at 5.29] advise that:

5.29 The term ‘security of the Commonwealth’ broadly refers to: (a) the protection of
Australia and its population from activities that are hostile to, or subversive of, the
Commonwealth’s interests.

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The FOI Guidelines [at 5.36] advise that:

5.36 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 exemption is not confined to relations at the formal diplomatic or ministerial
level. It also covers relations between Australian Government agencies and agencies of
other countries.

You have requested access to documents that reveal the Department’s consultation with
foreign governments regarding the management of their detainee population. I am satisfied that
revealing these details could reasonably be expected to inhibit the good working relations
between the governments of Australia and our international partners.

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.

As such I have decided that the information redacted and marked “s33(a)(i i)" is exempt from
disclosure under section 33(a)(i i) of the FOI Act.
6.3  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 grounds  of legal
professional privilege.
I am satisfied that parts of the documents released to you 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 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.
Therefore, I have decided  that the information redacted and marked “s42(1)" is exempt from
disclosure under section 42 of the FOI Act.
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6.4  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.
‘Deliberative processes’ generally involves “the process of weighing up or evaluating competing
arguments or considerations”1  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.’2
Parts of the documents released to you contain advice, opinions and recommendations prepared
or recorded in the course of, or for the purposes of, the deliberative processes involved in the
functions of the 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
or review a program. 3
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, full 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 am
satisfied that the deliberative material is not purely factual in nature.
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 6.5 below.
6.5  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 ef ect on the proper and
efficient conduct of the operations of an agency.
I consider that the disclosure of the parts of documents 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.
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.


1
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
2
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
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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 therefore decided that parts of the documents are conditionally exempt under section
47E(d) 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 6.6 below.
6.6  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 document would disclose
personal information relating to a third party. The information within the document 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 fol owing 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 a third party 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 individual(s) concerned is/are not generally known to be associated with the
matters discussed in the document. This information is not available from publicly accessible
sources.
I consider that any release of such third party details without the consent of the individual would
be contrary to the Privacy Act 1988, and would therefore be an unreasonable disclosure of their
personal information. Therefore, I am satisfied that the disclosure of the information within the
document would involve an unreasonable disclosure of personal information about an individual.
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
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the information would be contrary to the public interest, and have included my reasoning in that
regard at paragraph 6.7 below.
6.7  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 conditionally 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:
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.
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•
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 conditionally 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 that
individual's 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.
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.
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8
Your Review Rights
Information Commissioner Review
You may apply directly to the Office of the Australian Information Commissioner (OAIC) for an
Information Commissioner 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/your-freedom-of-
information-rights/freedom-of-information-reviews/information-commissioner-review.
9
Making a complaint
You may complain to the Information Commissioner about action taken by the Department in
relation to your request.
Your enquiries to the 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 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,

Position number: 60040814
Authorised Decision Maker
Department of Home Affairs

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