23 April 2024
Mr Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/02/01171
File Number:
FA24/02/01171
Dear Mr Smith
Freedom of Information (FOI) request – Access Decision
On 19 February 2024, 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.
1
Scope of request
You have requested access to the following documents:
Under the FOI Act, can I please obtain a copy of the email from Assistant Secretary
Migration & Citizenship Litigation to Minister O’Neil and Minister Giles offices sent on 19
September 2023 and described as "Provided litigation update, noting affidavits filed by
Australian Human Rights Commission (AHRC), the Human Rights Law Centre (HRLC) and
the Kaldor Law Centre; resettlement efforts." in the document tabled at the Legal and
Constitutional Affairs Legislation Committee Senate Estimates on 12 February 2024.
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 • www.homeaffairs.gov.au
4
Documents in scope of request
The Department has identified five documents as falling within the scope of your request. These
documents were in the possession of the Department on 19 February 2024 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:
• Exempt three documents, an email and two attachments, in full from disclosure;
and
• Release two documents, the attachments ‘Intervener’s Submissions’, in full by
providing weblinks to the publicly available documents on the High Court of
Australia’s website as follows:
o https:/ www.hcourt.gov.au/assets/cases/08-Sydney/s28-2023/NZYQ-
MICMA-IntAHRC.pdf
o https:/ www.hcourt.gov.au/assets/cases/08-Sydney/s28-2023/NZYQ-
MICMA-IntHRLCKaldor.pdf
6
Reasons for Decision
Detailed reasons for my decision are set out below.
6.1 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 documents comprise of confidential communications passing between the
Department and its legal advisers, for the dominant purpose of giving or receiving legal advice.
The material either contains privileged legal advice or confidential communications created for
the dominant purpose of seeking or giving instructions in legal proceedings.
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.
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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.
I have therefore decided that the documents are exempt in full from disclosure under section
42(1) of 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.
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,
Clare
Position number 60006163
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