5 May 2025
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 24/12/00439
File Number:
FA24/12/00439
Dear Oliver Smith
Freedom of Information (FOI) request – Decision
On 9 December 2024, the Department of Home Affairs (the Department) received a request for
access to a document 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 document:
Under the FOI Act, I seek a copy of the Ministerial Brief provided to the office of Home
Affairs Minister Tony Burke on 6/9/24 with the Brief PDR No. MS24-001578.
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 a document or to amend or annotate records.
3
Relevant material
In reaching my decision I referred to the following:
• the terms of your request
• the document 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
document to which you sought access
6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 • xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au
4
Document in scope of request
The Department has identified one document with attachments as falling within the scope of your
request. This document was in the possession of the Department on 9 December 2024 when
your request was received.
Attachment A is a schedule which describes the relevant document and sets out my decision in
relation to each of them.
5
Decision
The decision in relation to the document in the possession of the Department which fall within
the scope of your request is as follows:
• Exempt one document and attachments in full from disclosure
6
Reasons for Decision
Detailed reasons for my decision are set out below.
6.1 Section 47 of the FOI Act – Documents disclosing commercially valuable
information
Section 47 provides that a document is an exempt document if its disclosure under this Act would
disclose any information having a commercial value that would be, or could reasonably be
expected to be, destroyed or diminished if the information were disclosed.
In determining whether the information within the documents is commercially valuable, I have
had regard to the following factors:
• whether the information is known only to the person for whom it has value or, if it is
known to others, to what extent that detracts from its intrinsic commercial value
• whether the information confers a competitive advantage on the person to whom it
relates – for example, if it lowers the cost of production or allows access to markets not
available to competitors
• whether a genuine "arm's-length" buyer would be prepared to pay to obtain that
information
• whether the information is stil current or out of date (noting that out of date information
may no longer have any value)
• whether disclosing the information would reduce the value of a business operation or
commercial activity, reflected perhaps in a lower share price.
I consider that the information contained within the document marked ‘
s47(1)(b)’ is of a
commercial value and that there is a reasonable likelihood that value would be, or could
reasonably be expected to be, destroyed or diminished if the information were disclosed. I have
therefore decided that the document is exempt from disclosure under section 47 of the FOI Act.
6.2 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.
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‘
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
The document 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
Department. 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, or review a
program.
3
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 policy making or program management.
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 have decided that the information marked ‘
s47C(1)’ 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 below.
6.3 The public interest – section 11A of the FOI Act
As I have decided that the document is 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 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 document would be, on
balance, contrary to the public interest.
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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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 document would promote the objects of the FOI Act.
• The subject matter of the document may have a general characteristic of public
importance.
• No insights into public expenditure wil be provided through examination of the
document.
• You do not require access to the document 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 document:
• 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:
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.
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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
Internal Review
You do not have the right to seek an internal review of this decision. This is because section
54E(b) of the FOI Act provides that, when an agency is deemed to have refused an FOI request
under section 15AC of the FOI Act, the applicant does not have the right to seek an internal
review of the deemed decision.
The Department was deemed to have refused your request under section 15AC of the FOI Act
because it did not make this decision within the statutory timeframes for the request.
While the Department has now made a substantive decision on your request, section 15AC of
the FOI Act continues to apply to your request, which means that any request you make for
internal review wil be invalid.
Information Commissioner Review
You can instead request the Australian Information Commissioner to review this decision. If you
want to request an Information Commissioner review, you must make your request to the Office
of the Australian Information Commissioner (OAIC) within 60 days of being notified of this
decision.
You can apply for an Information Commissioner review at: Information Commissioner review
application form on the OAIC website.
If you have already applied for an Information Commissioner review, there is no need to make a
new review request. The OAIC wil contact you shortly to give you an opportunity to advise
whether you wish the review to continue, and to provide your reasons for continuing the review.
You can find more information about Information Commissioner reviews on the OAIC website.
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9
Making a complaint
You may make a complaint to the Australian Information Commissioner if you have concerns
about how the Department has handled your request under the FOI Act. This is a separate
process to the process of requesting a review of the decision as indicated above.
You can make an FOI complaint to the Office of the Australian Information Commissioner
(OAIC) at: FOI Complaint Form on the OAIC website.
10 Contacting the FOI Section
Should you wish to discuss this decision, please do not hesitate to contact the FOI Section at
xxx@xxxxxxxxxxxx.xxx.xx.
Yours sincerely,
[Electronically signed]
Matthew
Position number 00005201
Authorised Decision Maker
Department of Home Affairs
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