File No: 2015/021463
30 July 2015
Mr M Cordover
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Cordover
Request for access to documents – Freedom of Information Act 1982 (FOI Act)
I refer to your email dated 15 June 2015 in which you requested access to documents held by the
Department of Immigration and Border Protection (the Department) under the
Freedom of
Information Act 1982 (the FOI Act).
The subject matter of the documents requested by you is more closely connected with the
functions of the Australian Customs and Border Protection Service (ACBPS) than the functions of
the Department. At the date your request was received, ACBPS and the Department remained
separate agencies for the purposes of the FOI Act. As such, your request was transferred to
ACBPS on 16 June 2015 under section 16 of the FOI Act.
As of 1 July 2015, ACBPS consolidated with the Department. Whilst your request has been
processed by ACBPS in relation to documents in the possession of ACBPS at the date your
request was received, a decision is now being made in relation to your request by the Department.
Scope of Request
You have requested access to the following documents:
'
all documents produced or received by the Department between 1 April 2015 and 8 June
2015, excluding any enquiries from journalists after 2 June 2015, relating to the payment of
people smugglers in order to "turn the boats around".'
Extension of time
On 7 July 2015, you agreed to a 16 day extension of time under section 15AA of the FOI Act.
6 Chan Street Belconnen ACT 2617
1
PO Box 25 BELCONNEN ACT 2616 • Telephone: 02 6264 1111 • Fax: 02 6225 6970 • www.border.gov.au
Decision on access
ACBPS has identified two documents that fall within the scope of your request. These documents
were in the possession of ACBPS on 15 June 2015 when your FOI request was received.
The decision in relation to the documents in the possession of ACBPS which come within the
scope of your request is as follows:
• Release two documents in part with deletions.
Detailed reasons for the decision are provided in the Decision Record at
ATTACHMENT A.
A schedule of the documents is at
ATTACHMENT B for your reference.
Legislation
I have attached an extract of the exemption provisions of the FOI Act and the public interest test for
your information at
ATTACHMENT C.
Your Review Rights
The FOI Act grants you rights to have the decision reviewed.
Information regarding your review rights is available in the Office of the Australian Information
Commissioner's FOI Fact Sheet 12 at
ATTACHMENT D for your reference.
Making a Complaint
FOI fact sheet 13 from the OAIC is at
ATTACHMENT E for your reference. This sets out how you
may complain to the Australian Information Commissioner if you have concerns about how ACBPS
has handled your request for documents under the FOI Act.
Contact
Should you wish to discuss this decision, please do not hesitate to contact the FOI team
a
t xxx@xxxxxx.xxx.xx.
Alison Smith
FOI Officer | Freedom of Information Section
Access to Information Branch
Department of Immigration and Border Protection
2
ATTACHMENT B
Schedule of Documents
Date of
No. of Description
document
pages
Decision on release
1.
11 June 2015
2
Question Time Brief - 11 June 2015
Release in part
s33(a) (i ),
s47E (d) &
47F
2. 14 June 2015
2
Question Time Brief - 14 June 2015
Release in part
33(a) (i ),
s47E (d) &
47F
8
ATTACHMENT C
Relevant Legislation
Section 33 - Documents affecting national security, defence or international relations
A document is an exempt document if disclosure of the document under this Act:
(a)
would, or could reasonably be expected to, cause damage to:
…
(iii) the international relations of the Commonwealth; or
…
Section 47E - Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably
be expected to, do any of the following:
…
(d)
have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Section 47F - Public interest conditional exemptions—personal privacy
(1)
A document is conditionally exempt if its disclosure under this Act would involve the
unreasonable disclosure of personal information about any person (including a
deceased person).
(2)
In determining whether the disclosure of the document would involve the unreasonable
disclosure of personal information, an agency or Minister must have regard to the
following matters:
(a)
the extent to which the information is well known;
(b)
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;
(c)
the availability of the information from publicly accessible sources;
(d)
any other matters that the agency or Minister considers relevant.
(3)
Subject to subsection (5), subsection (1) does not have effect in relation to a request by
a person for access to a document by reason only of the inclusion in the document of
matter relating to that person.
…
11B - Public interest exemptions—factors
(1)
This section applies for the purposes of working out whether access to a conditionally
exempt document would, on balance, be contrary to the public interest under
subsection 11A(5).
(2)
This section does not limit subsection 11A(5).
Factors favouring access
(3)
Factors favouring access to the document in the public interest include 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.
1
Irrelevant factors
(4)
The following factors must not be taken into account in deciding whether access to the
document would, on balance, be contrary to the public interest:
(a)
access to the document could result in embarrassment to the Commonwealth
Government, or cause a loss of confidence in the Commonwealth Government;
(aa) access to the document could result in embarrassment to the Government of
Norfolk Island or cause a loss of confidence in the Government of Norfolk Island;
(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.
Guidelines
(5)
In working out whether access to the document would, on balance, be contrary to the
public interest, an agency or Minister must have regard to any guidelines issued by the
Information Commissioner for the purposes of this subsection under section 93A.
2
link to page 11
ATTACHMENT D
FOI fact sheet 12
Freedom of information – Your review rights
April 2011
If you disagree with the decision of an Australian Government agency or minister under the
Freedom of
Information Act 1982 (the FOI Act), you can ask for the decision to be reviewed. You may want to seek
review if you sought certain documents and were not given ful access, if someone is to be granted access
to information that is about you, if the agency has informed you that it wil impose a charge for processing
your request or if your application to have your personal information amended was not accepted. There
are two ways you can ask for review of a decision: internal review by the agency, and external review by
the Australian Information Commissioner.
Internal review
or would not address your concerns (for example,
if you were not consulted about a document
If an agency makes an FOI decision that you
that contains your personal information before it
disagree with, you can ask the agency to review
was released). For more information see FOI fact
its decision. The review wil be carried out by a
sheet 13 –
Freedom of information: How to make
different agency officer, usually someone at a more
a complaint.
senior level. There is no charge for internal review.
Do I have to go through the agency’s internal
You must apply within 30 days of being notified
review process first?
of the decision, unless the agency extended the
No. You may apply directly to the Information
application time. You should contact the agency if
Commissioner. However, going through the
you wish to seek an extension. The agency must
agency’s internal review process gives the
make a review decision within 30 days. If it does
agency the opportunity to reconsider its initial
not do so, its original decision is considered to be
decision, and your needs may be met more
affirmed.
quickly without undergoing an external review
Internal review is not available if a minister or
process.
the chief officer of the agency made the decision
Do I have to pay?
personal y.
No. The Information Commissioner’s review is
Review by the Information Commissioner
free.
The Information Commissioner is an independent
How do I apply?
office holder who can review the decisions of
You must apply in writing and you can lodge your
agencies and ministers under the FOI Act.
application in one of the fol owing ways:
Is a review the same as a complaint?
online: www.oaic.gov.au
No. The Information Commissioner also investigates
post:
GPO Box 2999, Canberra ACT 2601
complaints about agency actions under the FOI Act.
However, if you are complaining that an agency
fax:
+61 2 9284 9666
decision is wrong, it will be treated as an application
for a review. Your matter wil be treated as a
email:
xxxxxxxxx@xxxx.xxx.xx
complaint when a review would not be practical
in person: Level 3,
175 Pitt Street
Sydney NSW 2000
An application form is available on the website at
FOI Fact Sheet 12 – Freedom of information: Your review rights
D1
link to page 11
www.oaic.gov.au. Your application should include
Can I withdraw my application?
a copy of the notice of the decision that you are
objecting to (if one was provided), and your
Yes. An application can be withdrawn at any time
contact details. You should also set out why you are
before the Information Commissioner makes a
objecting to the decision.
decision.
Can I get help in completing the application?
What happens in the review process?
Yes. The Information Commissioner’s staff are
The review process is designed to be as informal
available to help you with your application if
as possible. The Information Commissioner
anything is unclear.
may contact you or any of the other parties to
clarify matters and seek more information. The
When do I have to apply?
Information Commissioner may also ask the agency
If you are objecting to a decision to refuse access
or minister to provide reasons for their decision if
to documents, impose a charge or refuse to amend
the reasons given were inadequate.
a document, you must apply to the Information
Most reviews wil be made on the basis of the
Commissioner within 60 days of being given notice
submissions and papers provided by the parties.
of the decision. If you are objecting to a decision
Sometimes the Information Commissioner may
to grant access to another person, you must apply
decide to hold a hearing if one of the parties
within 30 days of being notified of that decision.
applies. Parties may participate in a hearing by
You can ask the Information Commissioner for an
telephone. If confidential matters are raised, the
extension of time to apply, and this may be granted
hearing may be held partly or whol y in private.
if the Information Commissioner considers it is
Wil there be other parties to the review?
reasonable in the circumstances.
There may be. The Information Commissioner
Who wil conduct the review?
can join other parties who are affected by the
Staff of the Information Commissioner wil conduct
application. For example, if you are objecting to
the review. Only the Information Commissioner, the
someone else being granted access to information
FOI Commissioner or the Privacy Commissioner can
that concerns you, that person may be joined in
make a decision at the end of the review.
the review.
Does the Information Commissioner have to
Can someone else represent me?
review my matter?
Yes, including a lawyer. However, the Information
No. The Information Commissioner may decide
Commissioner prefers the process to be as informal
not to review an application that is frivolous,
and cost-effective as possible and does not
misconceived or lacking in substance, or if you fail
encourage legal representation.
to cooperate with the process or cannot be contacted
Wil the Information Commissioner look at al
after reasonable attempts. You cannot appeal
documents, including ones that are claimed to
against that decision.
be exempt?
Alternatively the Information Commissioner may
Yes. The Information Commissioner’s review is a
decide that the Administrative Appeals Tribunal
fresh decision, so all the relevant material must be
(AAT) would be better placed to review the matter,
examined, including documents that the agency or
and if so, wil advise you of the procedure for
minister has declined to release. Developments that
applying to the AAT. This wil not be common.
have occurred since the original decision may also
be considered.
FOI Fact Sheet 12 – Freedom of information: Your review rights
D2
link to page 11
What powers does the Information Commissioner
What can I do if I disagree with the Information
have?
Commissioner’s review decision?
While the review process is designed to be
You can appeal to the AAT. The Information
informal, the Information Commissioner has formal
Commissioner wil not be a party to those
powers to require anyone to produce information
proceedings. The fee for lodging an AAT application
or documents, to compel anyone to attend to
is $777 (at November 2010), although there are
answer questions and to take an oath or
exemptions for health care and pension concession
affirmation that their answers wil be true.
card holders and the AAT can waive the fee on
financial hardship grounds.
An agency or minister can also be ordered to
undertake further searches for documents.
FOI applications made before 1 November
What decisions can the Information Commissioner
2010
make?
The Information Commissioner can only review an
After reviewing a decision, the Information
agency’s or minister’s FOI decision if you made your
Commissioner must do one of three things:
FOI request on or after 1 November 2010. If you
set the decision aside and make a fresh decision
made your FOI request before 1 November, even if
affirm the decision, or
the decision was made after that date, the review
vary the decision.
process is different.
The Information Commissioner wil give reasons for
You must first ask the agency for internal review of
the decision.
the decision. You may then appeal to the AAT if you
are not satisfied with the decision.
Wil the decision be made public?
Yes. The Information Commissioner will publish
The information provided in this fact sheet is of a
decisions on the website. Exempt material (that is,
general nature. It is not a substitute for legal advice.
material that is not released) wil not be included.
Nor wil the name of the review applicant, unless
that person requests otherwise or there is a special
For further information
reason to publish it.
telephone: 1300 363 992
email: xxxxxxxxx@xxxx.xxx.xx
write: GPO Box 2999, Canberra ACT 2601
or visit our website at
www.oaic.gov.au
FOI Fact Sheet 12 – Freedom of information: Your review rights
D3
link to page 14
ATTACHMENT E
FOI fact sheet 13
Freedom of information – How to make a complaint
October 2010
You may complain to the Australian Information Commissioner if you have concerns
about how an Australian Government agency handled a request for documents under
the
Freedom of Information Act 1982 (the FOI Act) or took any other action under that
Act. If you are unhappy with the agency’s decision about giving or refusing access to
documents, you should ask for the decision to be reviewed, which is a separate process.
Disagree with an FOI decision?
If the Information Commissioner decides to
If you disagree with an agency’s or minister’s
investigate your complaint, the agency you have
decision on your request under the FOI Act, you
complained about wil be notified in writing of
have the right to have the decision reviewed.
the complaint. The Information Commissioner
You can ask an agency to review its decision
conducts investigations of complaints in private.
internal y. You also have the right to ask the
Information Commissioner to review an agency’s
Who can make a complaint?
or minister’s decision. See
FOI Fact Sheet 12
Any person can make a complaint about the
Freedom of information – Your review rights
actions of an agency in relation to an FOI activity.
for more information about the review process.
You do not need to have requested documents
If you are concerned about the way an agency
under the FOI Act.
has handled your matter, you can complain to the
Information Commissioner.
When should I make a complaint?
You can complain to the Information
What are the powers of the Information
Commissioner at any time. If your complaint
Commissioner?
relates to an FOI request you can make the
The Information Commissioner can investigate
complaint at any stage of the process.
a complaint about how an agency handled
Before making a complaint to the Information
an FOI request, or other actions the agency
Commissioner, you should contact the agency
took under the FOI Act. The Information
directly to try to resolve your concerns. The
Commissioner cannot investigate a complaint
Information Commissioner may decide not to
about a minister.
investigate your complaint if you have not raised
In conducting the investigation the Information
your concerns first with the agency or you have
Commissioner has the power to:
not given the agency a reasonable opportunity
to deal with your complaint.
• make inquiries of an agency
• obtain information from any person
• take possession of, or inspect, any relevant
documents.
FOI Fact Sheet 13 – How to make a complaint
E1
link to page 14
How do I make a complaint?
Can the Information Commissioner decide not to
investigate my complaint?
Your complaint must be in writing and must
Yes. The Information Commissioner may decide
specify the agency you are complaining about.
not to investigate, or may discontinue an
You can send your complaint to us using
investigation, if:
the details at the end of this fact sheet. A
complaint form is also available on our website
• your complaint does not concern an agency’s
at www.oaic.gov.au.
action under the FOI Act
If you need help we can assist you. You can
• it is more appropriate for you to complain
contact us on 1300 363 992 or by email
to another body (such as the agency or the
to xxxxxxxxx@xxxx.xxx.xx.
Commonwealth Ombudsman)
What information do I need to put in the
• it is more appropriate for you to ask for the
complaint?
decision to be reviewed
To help the Information Commissioner give
• the agency you complained about has dealt
the best consideration to your complaint,
with your complaint, or is in the process of
please provide as much relevant information
dealing with it
as possible. Be clear about the issues in your
complaint and what action or outcome you
• your complaint is frivolous, lacking in
would like to see as a result.
substance or not made in good faith
Is there a fee for making a complaint?
• you do not have sufficient interest in the
matter.
No. There are no costs involved in making a
complaint to the Information Commissioner.
If the Information Commissioner decides not to
investigate or discontinues an investigation, the
What will happen to my complaint?
Commissioner wil notify you and the agency of
the reasons for this in writing.
An officer of the Information Commissioner wil
contact you to discuss your complaint and you
How will my complaint be resolved?
wil be kept informed of the progress of your
complaint along the way.
In some cases the Information Commissioner’s
investigation and intervention may result
Before deciding whether to investigate your
in the agency addressing the issues that
complaint the Information Commissioner may
you have complained about. In other cases
make preliminary inquiries of the agency you
the Information Commissioner may make
have complained about.
suggestions or recommendations that the
If the Information Commissioner decides to
agency should implement. You and the agency
investigate your complaint, the Commissioner
wil be notified in writing of the outcome of the
wil write to the agency and request information
investigation.
to assist with the investigation.
FOI Fact Sheet 13 – How to make a complaint
E2
link to page 14
If an agency fails to take adequate
The Information Commissioner can also transfer
and appropriate action to implement
to the Ombudsman a complaint that could more
any recommendations, the Information
appropriately be investigated by the
Commissioner may issue a formal Ombudsman. This could occur where the FOI
implementation notice. This notice requires
complaint is only one part of a wider grievance
the agency to explain what action it will take
about an agency’s actions. It is unlikely that this
to implement the recommendations. The
will be common. You will be notified in writing if
Information Commissioner may also provide a
your complaint is transferred.
written report to the minister responsible for
the agency, and the report wil be tabled in
Parliament.
The information provided in this fact sheet is of a
general nature. It is not a substitute for legal advice.
Your name wil not be included in the report
unless there is a special reason and you were
first consulted.
For further information
Investigation by the Ombudsman
telephone: 1300 363 992
The Commonwealth Ombudsman can also
email: xxxxxxxxx@xxxx.xxx.xx
investigate complaints about action taken by
write: GPO Box 2999, Canberra ACT
agencies under the FOI Act. However, if the issue
2601
complained about either could be or has been
or visit our website at
investigated by the Information Commissioner,
www.oaic.gov.au
the Ombudsman wil consult the Information
Commissioner to avoid the same matter being
investigated twice. If the Ombudsman decides
not to investigate, the complaint and al
relevant documents must be transferred to the
Information Commissioner.
FOI Fact Sheet 13 – How to make a complaint
E3
Document Outline