The Hon Tony Burke MP
Minister for Home Affairs
Minister for Immigration and Citizenship
Minister for Cyber Security
Minister for the Arts
Leader of the House
Mr Ben Fairless
Email to
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
MO23/11/00001
File Number:
ADF2023/333981
Dear Mr Fairless
Freedom of Information (FOI) request – Access Decision
I refer to your correspondence received on 30 November 2023, seeking access to
documents held by the former minister for Immigration, Citizenship and Multicultural Affairs,
the Hon. Andrew Giles MP (the Former Minister), under the Freedom of Information Act (the
FOI Act).
The purpose of this letter is to provide you with a decision on your request for access under
the FOI Act.
Scope of request
You have requested access to the following documents:
I refer to allegations in parliament about letters from Senator Smith to the minister
advocating for an individual on Christmas Island who is a child sex offender.
The letter I’m referring to was sent by Senator Dean Smith, to the Minister for
Immigration personally, advocating for the release of an individual from immigration
detention.
I have no objection to the withholding of information which would identify the individual.
Authority to make decision
I am authorised under section 23 of the FOI Act to make decisions on requests to access
documents or to amend or annotate records.
The Hon Tony Burke MP
Minister for Home Affairs
Minister for Immigration and Citizenship
Minister for Cyber Security
Minister for the Arts
Leader of the House
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; and
• Guidelines published by the Office of the Information Commissioner under section
93A of the FOI Act (the FOI Guidelines).
Documents in scope of request
I identified two documents falling within the scope of your request. These documents were in
the possession of the Former Minister’s Office on 30 November 2023 when your request was
received.
Decision
The decision in relation to the documents is as follows:
• Release two documents with exemptions and deletions
Reasons for Decision
Detailed reasons for my decision, as well as my findings of fact and reasons for deciding that
the exemption provision applies to that information, are set out below.
Personal Privacy - Section 47F of the FOI Act
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).
The documents contain information that would reasonably identify a number of people, either
through names, dates, positions or other personal identifiers.
I consider that disclosure of the information marked 's47F(1)' in the documents would
disclose personal information relating to these individuals.
The Hon Tony Burke MP
Minister for Home Affairs
Minister for Immigration and Citizenship
Minister for Cyber Security
Minister for the Arts
Leader of the House
When deciding whether the disclosure of the personal information would be ‘unreasonable’, I
considered:
- The information relating to the third parties is not wel 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 specific personal and private submissions
discussed in the documents. This information is also not available from publicly
accessible sources.
- You have not provided any evidence to indicate that you have the consent of the
individuals to access their personal information. It is not reasonable for the Minister’s
Office to consult with these individuals as to whether they consent for their personal
information to be released to you and the world at large.
- I consider that any release of the personal information without express consent would
be contrary to the
Privacy Act 1988, and would therefore be an unreasonable
disclosure of their personal information.
For the reasons set out above, 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 conditionally exempt documents 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.
The public interest – section 11A of the FOI Act
Having regard to the objects of the FOI Act and the other factors listed in section 11B(3) of
the FOI Act, 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.
The Hon Tony Burke MP
Minister for Home Affairs
Minister for Immigration and Citizenship
Minister for Cyber Security
Minister for the Arts
Leader of the House
I have also considered the following factors that weigh against the release of the
conditionally exempt information in the documents:
• 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 Minister uphold the rights of
individuals to their own privacy, and this factor weighs strongly against disclosure.
• If the Minister were to release personal information without that person’s express
consent to do so, it would seriously undermine public confidence in the Minister’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.
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.
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.
You’re 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 se
e https:/ www.oaic.gov.au/freedom-of-information/your-freedom
ofinformation-rights/freedom-of-information-reviews/internal-review.
Making a Complaint
You may complain to the Australian Information Commissioner about action taken by the
Office of the Minister in relation to your request.
Your enquiries to the Australian Information Commissioner can be directed to:
Phone 1300 363 992 (local call charge)
Ema
il xxxxxxxxx@xxxx.xxx.xx
The Hon Tony Burke MP
Minister for Home Affairs
Minister for Immigration and Citizenship
Minister for Cyber Security
Minister for the Arts
Leader of the House
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 Office of the Minister for Home Affairs as the relevant agency.
Contacting the Office of the Minister
Should you wish to discuss this decision, please do not hesitate to contact the FOI Section
at xxx@xxxxxxxxxxx.xxx.xx quoting reference MO23/11/00001.
Kind regards,
Authorised decision maker
The Office of the Minister Home Affairs
xxx@xxxxxxxxxxx.xxx.xx
20 May 2025
The Hon Tony Burke MP
Minister for Home Affairs
Minister for Immigration and Citizenship
Minister for Cyber Security
Minister for the Arts
Leader of the House
ATTACHMENT A
SCHEDULE OF DOCUMENTS
REQUEST UNDER FREEDOM OF INFORMATION ACT 1982
FOI request: MO23/11/00001
File Number: ADF2023/333981
No.
Date of
No. of Description
document
pages
Decision on release
1.
26 September 14 Letter from Senator Dean Smith
Release in s. 47F(1)
2022
written to the Minister for
Immigration, Citizenship and
Part
Multicultural Affairs
2
28 February
2
Letter from Senator Dean Smith
Release in s. 47F(1)
2023
written to the Minister for
Immigration, Citizenship and
Part
Multicultural Affairs
Document Outline
