28 March 2024
Lynne
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 23/11/01408
File Number:
FA23/11/01408
Dear Lynne,
Freedom of Information (FOI) request – Revised decision under section 55G of FOI Act
On 26 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).
On 8 February 2024, the Office of the Australian Information Commissioner (OAIC) issued a
notice under section 54z of the FOI Act in which it notified the Department that the Information
Commissioner would review the deemed access refusal decision of the Department.
Following the commencement of the Information Commissioner review, the Department has now
made a revised decision on your request under section 55G of the FOI Act. The purpose of this
letter is to provide you with the Department’s revised decision.
1
Scope of request
You have requested access to the following documents:
I note the draft investigation findings of innumerable contraventions of the APS Code of
Conduct (in s.13 of the Public Service Act 1999) recently put, for procedrual fairness
reasons, to stood down Secretary of the Department of Home Affairs, and crooked
Liberal Party grub, Michael Pezzullo.
Under the FOI Act, I seek a copy of every email contained in the whole of Michael
Pezzullo’s Home Affairs’ issued email account containing the phrase ‘liberal.org.au’.
Documents failing within the scope of my request can be quickly identified and retrieved
by searching the entirety of Mr Pezzullo’s email client (including sent and archived
emails) using the search term ‘liberal.org.au’.
I'm happy to set out the wide public interest in the documents at issue by reference to
particular acts engaged in by Mr Pezzullo as well as Ms Stephanie Foster's dealings
with her crooked Liberal Party colleagues (eg. Phil Gaetjens and John Lloyd).
PO Box 25 Belconnen ACT 2616 · xxx@xxxxxxxxxxx.xxx.xx · www.homeaffairs.gov.au
2
Revocation or variation of access refusal decision
Under section 15AC of the FOI Act, the Department was deemed to have refused your request
for access to documents when it did not make a decision on your request within the statutory
timeframes prescribed by the FOI Act.
Section 55G of the FOI Act provides for the revocation or variation of an access refusal decision,
including a deemed refusal decision, during a review by the Information Commissioner.
Specifically, section 55G(1)(a) of the FOI Act provides that an agency may vary (or set aside and
substitute) an access refusal decision if the variation or substitution would have the effect of
giving access to a document in accordance with the request.
As a substantive decision on this request would have the effect of the Department giving access
to one or more documents, either in full or in part, the Department has now revised its original
deemed access refusal decision under section 55G(1)(a) of the FOI Act.
3
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.
4
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.
5
Documents in scope of request
The Department has identified 15 documents as falling within the scope of your request,
comprising 15 emails with 30 attachments. These documents were in the possession of the
Department on 26 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.
6
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 6 documents in full
Release 8 documents in part with deletions
Release 1 document (Document 17) in full by providing access to the version of the
document published on The Australia Institute:
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o https://australiainstitute.org.au/wp-content/uploads/2023/02/P1218-Party-
platforms-on-corporate-democracy-Web-1.pdf
The following attachments of the various emails are also publicly available:
Document 1 – Attachment of email – page 3 – 150, by providing access to the version of
the document published on the Parliament of Australia:
o https://www.aph.gov.au/Parliamentary Business/Committees/Senate/Finance a
nd Public Administration/digitaldelivery/~/media/Committees/fapa ctte/digitaldel
ivery/report.pdf
Document 3 – Attachment of email – page 157 - 160 and 164 – 167, by providing access
to the version of the document published on the John Menadue’s Public Policy Journal
and the ABC News:
o https://johnmenadue.com/elaine-pearson-australias-government-must-guard-
against-foreign-interference-but-not-by-curbing-our-rights/
o https://www.abc.net.au/news/2018-08-30/dutton-ignored-border-force-advice-to-
grant-au-pairs-visa/10182374
Document 6 – Attachment of email – page 194 – 237, by providing access to the version
of the document published on The Centre for Independent Studies:
o https://www.cis.org.au/wp-content/uploads/2019/08/ap5.pdf
Document 8 – Attachment of email – page 247 - 248, 249 – 250, 253 – 254, 255 – 256,
263, by providing access to the version of the document published on the ACT
Government, Mirage news, Department of Home Affairs and Paul Fletcher:
o https://www.cmtedd.act.gov.au/open government/inform/act government medi
a releases/gordon-ramsay-mla-media-releases/2019/tougher-laws-to-combat-
organised-crime
o https://www.miragenews.com/australian-government-supports-high-resolves-
school-based-programs-tackling-hatred/
o https://minister.homeaffairs.gov.au/lindareynolds/Pages/disaster-assistance-
longreach-primary-producers.aspx
o https://minister.homeaffairs.gov.au/lindareynolds/Pages/bushfire-assistance-
northern-central-west-nsw.aspx
o https://www.paulfletcher.com.au/media-releases?page=67
o https://www.miragenews.com/police-association-approves-of-labor-s-bill-to-
protect-emergency-services-workers/
Document 9 – Attachment of email – page 294 – 408, by providing access to the version
of the document published on the Analysis & Policy Observatory:
o https://apo.org.au/node/270231#:~:text=This%20report%20seeks%20to%20iden
tify,Law%20Reform%20Commission%20(ALRC).
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Document 10 – Attachment of email – page 411 – 431, by providing access to the version
of the document published on the Taylor & Francis Online:
o https://www.tandfonline.com/doi/full/10.1080/14799855.2019.1681403
Document 11 – Attachment of email – page 434 – 526, by providing access to the version
of the document published on the Grattan Institute:
o https://grattan.edu.au/report/gridlock/
Document 12 – Attachment of email – page 556 – 571, and Document 16 – Attachment
of email – page 573 - 612 by providing access to the version of the document published
on the Department of Home Affairs:
o https://minister.homeaffairs.gov.au/ClareONeil/Documents/siev-915-JATFOSB-
statement.pdf
7
Reasons for Decision
Detailed reasons for my decision are set out below.
Where the schedule of documents indicates an exemption claim has been applied to a document
or part of document, my findings of fact and reasons for deciding that the exemption provision
applies to that information are set out below.
7.1 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 30 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)(ii) of the FOI Act.
The remainder of the documents have been considered for release to you as they are relevant
to your request.
7.2 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”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
Document 15 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, those functions being the Joint Agency Task Force (JATF) Operation Sovereign
Borders (OSB), specifically the interception of the Suspected Illegal Entry Vessel (SIEV) 915 on
the day of the Federal Election, Saturday 21 May 2022.
The Australian Border Force (ABF) is the front-line operational agency within the Department.
Officers within the ABF are responsible for operational activity relating to the management of
travelers, goods and cargo through the border continuum. This includes the assessment of
individuals at the border. This assessment requires the expression of opinion and deliberation by
those officers.
I am satisfied that disclosure of the deliberative information redacted and marked ‘s47C’ 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 related to
unauthorised arrivals.
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.3 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 factual4.
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 7.4 below.
7.3 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
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 [18]
4
Harris v Australian Broadcasting Corporation and Others (1984) 1 FCR 150
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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 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 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 specifically to the third parties would be relevant to
the broader scope of your request, as you are seeking access to emails related to Mr Pezzullo
rather than information which wholly relates to other individuals.
I am satisfied that the disclosure of the information redacted and marked ‘s47F’ 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 7.4 below.
7.4 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.
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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.
Some insights 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 Department to manage future
review processes, inquiries and investigations. 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
undertaken effective reviews, investigations and inquiries in the future. I consider that
this would be contrary to the public interest and that this factor weighs strongly
against disclosure.
disclosure of the conditionally exempt information under section 47C of the FOI Act
could reasonably be expected to prejudice the ability of the Department to manage
its role of protecting Australia's borders. The information marked 's47C' in the
documents consists of information prepared during a process of deliberation by a
Border Force officer during their assessment of an individual at the border. Any
precedent of disclosure of this type of information would, or could, result in an
environment where Border Force officers were reticent to express their opinions and
recommendations in relation to a particular individual. This would prejudice the ability
of the Department to protect Australia's borders. I consider that the disclosure of this
type of deliberative material may hinder similar future deliberations and decision
making processes, and that there is a real public interest in this agency being able to
undertake effective assessments of individuals at the border. I consider that this
would be contrary to the public interest and that this factor weighs strongly against
disclosure.
Disclosure of the personal information of individuals contained in these documents
could reasonably be expected to prejudice the protection of those individuals' right to
privacy. Disclosing the names of Departmental officers who work in an operational
environment may invite inappropriate approaches by third parties and may prejudice
the safety of those officers and their families. The names of these particular officers
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are not available through any other publicly available source and are not included in
the Department organisational chart.
Disclosure of personal information which is conditionally exempt under section 47F
of the FOI Act could reasonably be expected to prejudice the protection of third
parties’ right to privacy. It is firmly in the public interest that the Department uphold
the rights of individuals to their own privacy, and this factor weighs strongly against
disclosure.
I am satisfied that if the Department were to release personal information without that
person’s express consent to do so, it would seriously undermine public confidence in
the Department’s ability to receive, retain and manage personal information. I
consider such a loss of confidence to be against the public interest, and 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.
8
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.
9
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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10
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.
11
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
Anthony Coles
First Assistant Secretary
Integrity, Security and Assurance Division
Position number 60037742
Authorised Decision Maker
Department of Home Affairs
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