29 January 2024
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 23/11/00733
File Number:
FA23/11/00733
Dear Oliver 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:
I am seeking the document with PDR Number: MS22-002716 with the title: Ministerial
Direction on character related visa decision making - new primary consideration.
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
• advice from other Commonwealth Departments.
PO Box 25 Belconnen ACT 2616 • xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au
4
Documents in scope of request
The Department has identified six documents 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.
Attachment A is a schedule which describes the relevant documents and sets out my decision
in relation to each of them.
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 full; and
• Release five documents in part with deletions.
6
Reasons for Decision
Detailed reasons for my decision 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 15 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 5.36] 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.
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You have requested access to documents that reveal the Department’s confidential
communications with the New Zealand government. 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)(ii )" is exempt from
disclosure under section 33(a)(i i) of the FOI Act.
6.3 Section 34 – Cabinet documents
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 material in the documents redacted and marked
“s34(2)" consists of a part of, or an extract
of, a document an official record of the 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.
A strong Cabinet system is fundamental to well-informed decision-making and policy
development by the Government. Cabinet is a forum in which Ministers, while working towards a
collective position, are able to discuss proposals, options and views with complete freedom. The
maintenance of frank and collegiate discussion is dependent upon Cabinet deliberations being
treated confidentially.
I have sought advice from the Department of Prime Minister and Cabinet, and on the basis of
this advice, find that the material redacted and marked '
s34(3)’ in the documents would, if
disclosed, involve the disclosure of deliberations of the Cabinet, and is therefore exempted under
section 34(3) of the Act.
6.4 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 parts of Document 1 redacted and marked
“s42(1)" comprise confidential
communications passing between the Department and its legal advisers, for the dominant
purpose of giving or receiving legal advice.
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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 this material is not part of the rules, guidelines, practices or precedents relating to
the decisions and recommendations of the Department. The document does not fall within the
definition of operational information, and remains subject to legal professional privilege.
I have therefore decided that the parts of Document 1 redacted and marked
“s42(1)" are exempt
from disclosure under section 42 of the FOI Act.
6.5 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 in scope of your request 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 government. 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
and that the material would disclose the Department’s or Minister’s deliberative process in
connection with Cabinet.
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 am
satisfied that the deliberative material is not purely factual in nature. I am further satisfied that the
factors set out in subsection (3) do not apply in this instance.
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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I have decided that the material redacted and marked '
s47C(1)’ in the documents 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 6.6 below.
6.6 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.
•
Insight into public expenditure may 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:
•
Disclosure of the conditionally exempt information under section 47C could reasonably
be expected to prejudice the ability of the Government to manage future review
processes, inquiries and proposals to legislative amendments. I consider that the
disclosure of this type of deliberative material may hinder the future cooperation or
participation in those processes, and that there is a real public interest in this agency
being able to undertake effective deliberation in the future. I consider that this would
be contrary to the public interest and that this factor weighs strongly against disclosure.
•
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.
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.
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.
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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]
Kirrily Cunningham
Position No. 60001672
Authorised Decision Maker
Department of Home Affairs
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