FA 23 11 00784 Decision Record Smith Oliver.pdf

7 December 2023
Mr Smith
BY EMAIL:  xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 23/11/00784
File Number:
FA23/11/00784
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: MS23-001158 called
Australian citizenship test update.
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 • Telephone:  • www.homeaffairs.gov.au

4
Documents in scope of request
The Department identified one document as fal ing within the scope of your request. This
document was in the possession of the Department on 14 November 2023 when your request
was received.
5
Decision
The decision in relation to the document in the possession of the Department which falls within
the scope of your request is as follows:
•  Exempt Ministerial Submission (Min Sub) MS23-001158 in full from disclosure
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 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
The document 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 the
Department. These  deliberative matters,  include  recommendations, opinions and advice
provided to the Minister of Immigration, Citizenship and Multicultural Affairs to inform future policy
decisions relating to the Australian citizenship test, and records of the Minister’s deliberative
processes in relation to the test,  is contrary to public interest. Therefore, the ministerial
submission is exempt under s47C of the FOI Act
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. 3


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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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 legislation. Disclosure of some
deliberative information, on which a decision has not yet been taken, could also reasonably be
expected to prejudice consultations with relevant stakeholders
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.4 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 factual5.
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 6.2 below.
6.2  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 MS23-001158 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 ef ect on the operations of
the Department.

Disclosure of deliberative material including the Citizenship test topics and questions would
prejudice the effectiveness of procedures or methods for conducting the test, and would have a
substantial adverse effect on the proper and efficient conduct of the operations of the
Department of Home Affairs.

I have deemed that document MS23-001158 is fully 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


4 Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
5 Harris v Australian Broadcasting Corporation and Others (1984) 1 FCR 150

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information would be contrary to the public interest, and have included my reasoning in that
regard at paragraph 6.3 below.
6.3  The public interest – section 11A of the FOI Act
As I have decided that document MS23-001158 is fully exempt, I am now required to consider
whether access to the exempted document would be contrary to the public interest (section 11A
of the FOI Act).
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 fully exempted 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 conditionally exempt document under section 47E(d) of the FOI Act
could reasonably be expected to prejudice the fair  and honest delivery of the
Citizenship test in which some users could gain advantage over others. This would
prejudice the effectiveness of procedures or methods for conducting the test and
have a substantial adverse effect on the proper and efficient operations of the
Department. 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.
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 fully exempted Ministerial Submission  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.
8
Your Review Rights
Internal review
If you disagree with this decision, you have the right to apply for an internal review by the
Department of this decision. Any request for internal review must be provided to the Department
within 30 days of you being notified of the decision.  Where possible please attach reasons why
you believe a review of the decision is necessary.  The internal review wil  be carried out by an
officer other than the original decision maker and the Department must make a review decision
within 30 days.
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Applications for review should be sent to:
By email to: xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx
OR
By mail to:
Freedom of Information Section
Department of Home Affairs
PO Box 25
BELCONNEN   ACT 2617
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,
[Electronically Signed]

Anjani
Position No. 60165359
Authorised FOI Officer - Freedom of Information
FOI and Records Management Branch | Legal Group
Department of Home Affairs | www.homeaffairs.gov.au
Email xxx@xxxxxxxxxxx.xxx.xx
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