18 March 2020
REF: DOC20/5658
Mr Chris Smyth
Email
: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
By Email via Right to Know website
Dear Mr Smyth,
NOTICE OF DECISION
FREEDOM OF INFORMATION APPLICATION
1. I refer to your request made under the
Freedom of Information Act 1982 (the FOI Act) on 25 February
2019 for documents held by the Australian Fisheries Management Authority (
AFMA) relating to various
aspects concerning foreign fishing vessels as outlined below.
2. I again offer my apologies for the long delay in finalising your application.
3. The specific details that you have sought access to are reproduced in
Attachment A.
Authority
4. Pursuant to section 23 of the FOI Act, I as the principal officer of AFMA may make a decision in respect
of a request made under the FOI Act to AFMA.
Time frame
5. On 1 February 2019 AFMA received your request. On 22 February 2019 AFMA consulted with you to
clarify the scope of your request. On 25 February 2019 you responded, clarifying the scope of your
request and AFMA formally acknowledged your request as a valid request on that date.
6. Pursuant to paragraph 15(5)(b) of the FOI Act, AFMA is required to notify you of a decision on your
request at the end of the period of 30 days after the day on which the request was received by AFMA.
This means AFMA was required to notify you of its decision on 27 March 2019. The notification of the
decision on your request was not issued by that date and pursuant to subsection 15AC(3) of the FOI
Act, I as the principal officer of AFMA was taken to have made and notified you of a decision to
personally refuse to give access to the documents on 27 March 2019.
7. As explained to you in my letter of 2 December 2019, this was completely unintentional, and AFMA’s
lack of action within the specified timeframe was due to a series of issues largely unrelated to the
request.
8. On 20 December 2019 I applied to the Information Commissioner for further time to deal with your
request. On 13 January 2020 the Information Commissioner advised me that the application for further
time was unlikely to be granted. The Information Commissioner further advised that where an access
refusal decision is deemed to have made before a substantive decision is made, AFMA continues to
have an obligation to provide a statement of reasons on your request. The obligation to provide a
statement of reasons continues until any Information Commissioner review of the deemed decision is
finalised. Based on these factors, I withdrew the request for further time and now issue this statement
of reasons.
1
Material Taken into Account
9. In making my decision I had regard to:
a. You request dated 25 February 2019;
b. The content of the documents in scope as set out in Schedule 1 - Schedule of Documents;
c. Relevant provisions of the FOI Act;
d. FOI Guidelines published by the Office of the Australian Information Commissioner; and
e. Comments provided by the then Department of Agriculture and Water Resources (now the
Department of Agriculture, Water and Environment).
Documents in Scope
10. AFMA staff initially identified 106 documents as being potentially relevant to your request. Following a
detailed review, there are 34 documents that are within the scope of your request. A schedule of those
documents is set out in Schedule 1.
11. The main reasons that the remaining 72 documents are considered to be out of scope included that
some documents were:
a. already publicly available;
b. duplicative – especially in the case of e-mail traffic where multiple individual e-mails were
initially identified, but where a single string was available that included all of them; or
c. outside the parameters of the request, such as relating to dates before the request period, or
subject matter that did not fall within the specifics of the request as reproduced in Attachment
A.
Decision on Access
12. I make the decision as follows:
a. Not to release documents numbered 1-8, 11, 13-16, and 22-24.
b. To release in part documents numbered 0, 9, 10, 12, 17-21, and 25-33. These documents with
redactions are at
Attachment B.
Reasons for Decision
13. The schedule of documents at Schedule 1 sets out the decision on access and relevant sections of the
FOI Act pertaining to the access decision. My reasoning in relation to the application of each of the
sections to the respective document is set out below. Copy of the relevant sections of the FOI Act is at
Attachment C.
A. Not to release – conditionally exempt and exempt documents
Section 47C: Deliberative process documents
14. Section 47C of the FOI Act provides that a document is conditionally exempt if its disclosure under the
FOI Act would disclose matter (
deliberative matter) in the nature of, or relation to, opinion, advice or
recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place
in the course of, or for the purpose of, the deliberative processes involved in the functions of an
agency.
2
Documents numbered 1-4, 13, 14, 16 and 22 and 24
15. Documents numbered 1-4, 13, 14, 16, and 22-24 as per Schedule 1 contain deliberative matters which
are conditionally exempt under section 47C of the FOI Act. The documents are in the nature of or
relation to opinions, advice, and recommendations obtained, prepared or recorded in the course of
deliberative process associated with the development of the foreign fishing policy. The documents also
contain various versions of the draft foreign fishing policy that were prepared in the course of that
deliberative process.
16. These documents do not fall under the exceptions set out in subsections 47C(2) and (3) in that they are
not operational information, or purely factual material; or reports of scientific or technical experts,
reports prescribed by the regulations, or the record of a final decision given in the exercise of a power
or of an adjudicative function.
17. However, pursuant to subsection 11A(5) of the FOI Act I must give you access to the documents unless
access to the documents would, at this time, on balance, be contrary to the public interest. Below are
the factors favouring access prescribed by subsection 11B(3), which I must consider:
a. promote the objects of the FOI Act;
b. inform debate on a matter of public importance;
c. promote effective oversight of public expenditure; and
d. allow a person to accesses his or her personal information.
18. I am of the view that disclosure would promote the objects of the FOI Act, specifically to give the
Australian community access to information held by the government. However, I do not consider the
disclosure of these documents would satisfy the remaining factors. The advice, opinions and
recommendations relating to the foreign fishing policy which is yet to be published for public
consultation is unlikely to inform debate on a matter of public importance as they are not a finalised
policy adopted by the government. The other two factors are not relevant for consideration because
the issue does not relate to public expenditure or access to personal information.
19. The factors against disclosure are not prescribed in the FOI Act but the FOI Guidelines provide a non-
exhaustive list of factors against disclosure1. I form the view that disclosure of these documents in
particular when the draft policy is not yet ready for public consultation could reasonably be expected to
create uncertainty within the fishing industry about government’s intention and direction on foreign
vessels fishing in the Australia Fishing Zone and this in turn could reasonably be expected to negatively
affect the behaviour (including consultation and information sharing between industry and
Government) and commercial decision making of the fishing industry.
20. Further, disclosure of these documents could reasonably be expected to inhibit frankness and candour
in the provision of advice, opinions and recommendations; and consultation between the then
Department of Agriculture and Water Resources (the
Department) and other departments/agencies
within the Commonwealth government with respect to deliberative process concerning the
Department’s functions and activities.
21. The issues raised in paragraphs 19 and 20 would prejudice the management and regulatory functions
that AFMA discharges.
22. Having considered these factors, on balance, I have decided that the disclosure of these documents
would be contrary to the public interest and therefore have decided not to disclose these documents.
1 Paragraph 6.22 of FOI Guidelines.
3
23. I have not taken into account irrelevant factors set out in subsection 11B(4) of the FOI Act in coming to
this decision.
Documents numbered 5-7 and 15
24. Documents numbered 5-7, and 15 contain deliberative material which is conditionally exempt under
section 47C. The documents have copies of a ministerial brief from the Department to the Assistant
Minister, providing recommendations and advice in relation to the deliberative process associated with
the adoption of the foreign fishing policy. In reviewing these documents, I have considered the same
factors favouring disclosure and against disclosure as set out above in paragraphs 17 and 19. For the
same reasons as discussed above in paragraphs 15 to 23 and, on balance, I form the view that
disclosure of these documents would be contrary to the public interest and have decided not to give
you access to these documents.
Section 42: legal professional privilege
25. Document number 8 is exempt under section 42 of the FOI Act because the document contains legal
advice that is subject to legal professional privilege and the legal privilege has not been waived.
Accordingly, I have decided to not provide you with access to this document.
Section 45: documents containing information obtained in confidence
26. Document numbered 11 contains information exempt under section 45 of the FOI Act because it refers
to confidential discussions held with a third party, and the disclosure of that material may be found in
breach of confidence. Therefore, having consulted the author of that document (the Department), I
have decided not to give access to this document.
B. To release in part
Section 22(1): information that is irrelevant to the FOI request
27. The effect of subsection 22(1) of the FOI Act is that where the granting of access to a document would
disclose information that is not within the scope of the request and it is possible to provide a copy with
information deleted, I can do so unless it is evident that you do not wish to be provided with access to
such a copy.
Documents numbered 10 and 18
28. Documents numbered 10 and 18 contains details of junior staff that do not fall within the scope of your
FOI request. I consider that providing you with full access to these documents would disclose
information that does not fall within the scope of your FOI request.
29. The details of the junior staff have been deleted pursuant to section 22(1) of the FOI and I give you
access to the above documents with staff’s details redacted at
Attachment B.
Document numbered 33
30. Document numbered 33 was specifically generated in response to your request for a list of declared
boats over the past five years. Some of the information that you requested in the list is commercial in
nature.
31. The information of commercial nature is conditionally exempt under section 47G of the FOI Act. Having
taken into account the factors favouring and against disclosure, I have decided not to provide you with
access to that information because it would disclose information concerning the business and
commercial affairs of an organisation that would or could reasonably be expected, to unreasonably
affect that organisation in respect of its business and commercial affairs.
32. With respect to information that fall outside the period of request as outlined above in paragraph 31, I
have decided to redact that information under subsection 22(1) of the FOI Act. Accordingly, I give you
4
access to document 33 with the commercial nature information and irrelevant information redacted at
Attachment B.
Section 47C: Deliberative process documents
Documents numbered 0, 9, 12, 17, 19-21, and 25- 32
33. I consider that some information contained in documents numbered 0, 9, 12, 17, 19-21, and 25- 32 is
conditionally exempt based on the same grounds as outlined above in paragraphs 15 to 17. However, I
must give you access to the information unless, on balance, it would be contrary to the public interest.
Having considered the factors favouring disclosure listed under subsection 11B(3) and factors against
disclosure as suggested in the FOI Guidelines, on balance, for the same reasons as discussed above in
paragraph 15 to 23, I am of the view that giving access to the information at this time would be
contrary to the public interest. Accordingly, I have made the decision not to give you access to the
conditionally exempt information within these documents.
34. The conditionally exempt information has been deleted pursuant to section 22(1) of the FOI and I give
you access to the above documents with the conditionally exempt information redacted at
Attachment
B.
Review Rights
35. If you are dissatisfied with my decision, you can make an application to the Information Commissioner
for a review within 60 days after receiving my decision. You can also make a complaint to the Office of
the Australian Information Commissioner (OAIC).
36. Below is the link to the internet page on the OAIC website that contains information about your rights
and procedure for exercising those rights.
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-commissioner-
review/
37. If you want to make a complaint, below is the link to the internet page on the OAIC website that
contains information about how to make a complaint.
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/make-an-foi-complaint/
Important Information
38. It is important for you to note that disclosure of any of the documents released (now or possibly in the
future) to you under the FOI Act does not, for the purpose of the law of defamation or copyright,
constitute an authorisation or approval to republish the documents or to do an act comprised within
the copyright in the document (s 91(2) of the FOI Act). That is, if you disseminate defamatory or
copyright material in any document received following an FOI Act request you will have no FOI Act
protection against an action for defamation or breach of copyright.
Publication of information in the FOI disclosure log
39. Information released under the FOI Act may be published in a disclosure log on the AFMA’s website at
http://www.afma.gov.au/about/afma-disclosure-log/. Section 11C of the FOI Act requires this
publication, subject to certain exceptions, including where publication of personal, business,
professional or commercial information would be unreasonable.
5
Contacts
40. Should you require further information please do not hesitate to contact Summer Nguyen-Aulmann on
(02) 6225 5317 or via email at
xxxxxxxxxxx@xxxx.xxx.xx
Yours sincerely
Wez Norris
Chief Executive Officer
Australian Fisheries Management Authority
6
Attachment A – Details of FOI Request
a. Letters, email communications and minutes of meetings between the CEO and/or staff of the
Australian Fisheries Management Authority and the CEO and/or members of Tuna Australia
pertaining to:
i.
the entry and use of foreign fishing vessels into the Australian Fishing Zone under Sections 34–
37 of the Fisheries Management Act 1991 either through importation, deeming, joint ventures
or under bilateral agreements or treaties over the past five years;
ii.
possible changes to Sections 34–37 of the Fisheries Management Act with respect of changes
to entry of and/or operational requirements on foreign fishing vessels (deemed or otherwise)
in the Australian Fishing Zone;
iii.
any references to the operation of foreign or deemed vessels and the proposed changes to
Commonwealth marine park management plans, particularly in the Coral Sea Marine Park,
Temperate East Marine Region, South West Marine Region and the North West Marine
Region.
b. Letters, email communications and minutes of meetings between the CEO and/or staff of the
Australian Fisheries Management Authority and individual owners/operators of Australian tuna
fishing vessels pertaining to:
i.
the entry and use of foreign fishing vessels into the Australian Fishing Zone under Sections 34–
37 of the Fisheries Management Act 1991 either through importation, deeming, joint ventures
or under bilateral agreements or treaties over the past five years;
ii.
possible changes to Sections 34–37 of the Fisheries Management Act with respect of changes
to entry of and/or operational requirements on foreign fishing vessels (deemed or otherwise)
in the Australian Fishing Zone;
iii.
any references to the operation of foreign or deemed vessels and the proposed changes to
Commonwealth marine park management plans, particularly in the Coral Sea Marine Park,
Temperate East Marine Region, South West Marine Region and the North West Marine
Region.
c. Letters, email communications and minutes of meetings between the CEO and/or staff of the
Australian Fisheries Management Authority and individual owners/operators of fishing vessels used
in the Small Pelagics Fishery pertaining to:
i.
the entry and use of foreign fishing vessels into the Australian Fishing Zone under Sections 34–
37 of the Fisheries Management Act 1991 either through importation, deeming and joint
ventures or under bilateral agreements or treaties over the past five years;
ii.
possible changes to Sections 34–37 of the Fisheries Management Act with respect of changes
to entry of and/or operational requirements on foreign fishing vessels (deemed or otherwise)
in the Australian Fishing Zone;
iii.
any references to the operation of foreign or deemed vessels and the proposed changes to
Commonwealth marine park management plans, particularly in the Coral Sea Marine Park,
Temperate East Marine Region, South West Marine Region and the North West Marine
Region.
d. Emails, letters, briefing papers or notes prepared by the Australian Fisheries Management
Authority for the federal Minister or Assistant Minister for Agriculture and Water Resources,
pertaining to:
7
i.
the entry and use of foreign fishing vessels into the Australian Fishing Zone under Sections 34–
37 of the Fisheries Management Act 1991 either through importation, deeming, joint ventures
or under bilateral agreements or treaties over the past five years;
ii.
possible changes to Sections 34–37 of the Fisheries Management Act with respect of changes
to entry of and/or operational requirements on foreign fishing vessels (deemed or otherwise)
in the Australian Fishing Zone;
iii.
any references to the operation of foreign or deemed vessels and the proposed changes to
Commonwealth marine park management plans, particularly in the Coral Sea Marine Park,
Temperate East Marine Region, South West Marine Region and the North West Marine
Region.
e. Letters, emails and minutes of meetings between Australian Fisheries Management Authority
officers and the Department of Agriculture and Waters Resources managers of tuna fisheries and
the Small Pelagics Fishery pertaining to:
i.
the entry and use of foreign fishing vessels into the Australian Fishing Zone under Sections 34–
37 of the Fisheries Management Act 1991 either through importation, deeming, joint ventures
or under bilateral agreements or treaties over the past five years;
ii.
possible changes to Sections 34–37 of the Fisheries Management Act with respect of changes
to entry of and/or operational requirements on foreign fishing vessels (deemed or otherwise)
in the Australian Fishing Zone;
iii.
any references to the operation of foreign or deemed vessels and the proposed changes to
Commonwealth marine park management plans, particularly in the Coral Sea Marine Park,
Temperate East Marine Region, South West Marine Region and the North West Marine
Region.
f. A list of the foreign fishing vessels that have entered the Australian Fishing Zone through
importation, deeming and joint ventures or under bilateral agreements or treaties over the past
five years, the names of their owners (including the new owners for those vessels imported) and
the fishery in which they have been used over the past five years.
g. A list of current applications under Sections 34–37 of the Fisheries Management Act for the entry
into and operation of foreign fishing vessels in the Australian Fishing Zone either through
importation, deeming, joint ventures or under bilateral agreements or treaties, including the names
of the vessels, the names of their owners (including the new owners for those vessels imported)
and the fishery in which each vessel is proposed to be used.
h. A list of foreign vessels that have become “Australian boats’ under the Australian Fisheries
Management Act 1991 and nominated to Commonwealth concessions harvesting fish from the
Australian Fishing Zone over the past five years, including the names of their owners, the
concession owners and the fishery in which they have been used over the past five years.
i. Briefing notes prepared for or by the CEO of the Australian Fisheries Management Authority for his
presentation at the Senate Rural and Regional Affairs and Transport Legislation Committee
Estimates on 24 October 2017.
j. The analyses conducted or commissioned by the Australian Fisheries Management Authority that
determined that tuna stocks within the Australian Fishing Zone were ‘underutilised’.
k. The assessments carried out or commissioned by the Australian Fisheries Management Authority,
and the criteria used, to determine that the tuna fisheries and the Small Pelagic Fishery in the
Australian Fishing Zone were ecologically sustainable.
l. The analyses used to define a ‘super trawler’ in terms of the length of a vessel.
8
SCHEDULE 1 – SHEDULE OF DOCUMENTS
Number
Doc No. Date of
of pages Description of Document
Author
Document Type Decision on Access
Document
0
08/02/2018
2
AFMA internal e-mail containing e-mail from DAWR AFMA
email
Conditionally exempt -
to AFMA and DFAT – Japanese access
contains deliberative
material under section
47C of the FOI Act
Conditionally exempt -
AFMA to DAWR - response to query on foreign
contains deliberative
1
28/06/2018
2
AFMA
email
fishing vessel
material under section
47C of the FOI Act
Conditionally exempt -
contains deliberative
2
18/04/2018
10
DAWR to AFMA - editorial changes to draft foreign DAWR
email
material under section
fishing policy
47C of the FOI Act
Conditionally exempt -
contains deliberative
3
6/04/2018
12
DAWR to AFMA - response to response on draft
DAWR
email
material under section
guidelines
47C of the FOI Act
Conditionally exempt -
contains deliberative
material under section
4
6/04/2018
6
DAWR to AFMA - draft guidelines for declaring
DAWR
email
47C of the FOI Act
boats
Conditionally exempt -
contains deliberative
material under section
5
13/03/2018
9
DAWR to AFMA - re draft foreign fishing policy
DAWR
email
47C of FOI Act
9
Conditionally exempt -
contains deliberative
material under section
6
7/03/2018
17
AFMA to DAWR - AFMA comments on foreign
AFMA
email
47C of FOI Act
fishing briefing
Conditionally exempt
- contains material
7
5/03/2018
16
DAWR to AFMA - Brief on foreign fishing
DAWR
email
under section 47C of
FOI Act
Exempt under section
42(1) of FOI Act -
8
2/03/2018
19
DAWR to AFMA - legal advice
DAWR
email
contains information
subject to legal
professional privilege
Release in part - contains
conditionally exempt
9
24/01/2018
13
AFMA to DAWR - AFMA comments on foreign
AFMA
email
deliberative material
fishing policy
under section 47C of FOI
Act - redaction made
under section 22 of FOI
Act
Release in part -
redaction of junior staff's
10
23/11/2017
39
DAWR email to AFMA - seeking information on tuna DAWR
email
names under section 22
statutory fishing right conditions
of FOI Act
Exempt under section 45
of FOI Act - contains
11
24/04/2017
2
DAWR to AFMA - Detail of discussions between
DAWR
email
material obtained in
DAWR and a third party
confidence
10
Release in part - contains
exempt deliberative
12
6/07/2016
97
DAWR to AFMA - request for comments on Foreign DAWR
email
material under section
Fishing Policy review
47C of FOI Act - redaction
made under section 22 of
FOI Act
Conditional exempt -
contains deliberative
13
5/01/2018
13
DAWR to AFMA - draft Foreign Fishing policy for
DAWR
email
material under section
comment
47C
of FOI Act
Conditionally exempt -
contains deliberative
14
18/04/2018
10
DAWR to AFMA - advising updates on editorial
DAWR
email
material under section
changes to foreign fishing policy
47C of FOI Act
Conditionally exempt -
contains deliberative
15
13/03/2018
9
DAWR to AFMA -re ministerial brief from DAWR on DAWR
email
material under section
foreign fishing policy
47C of FOI Act
Conditionally exempt -
contains deliberative
16
5/03/2018
16
DAWR to AFMA - re ministerial brief from DAWR on DAWR
email
material under section
foreign fishing policy
47C of FOI Act
Release in part - contains
exempt deliberative
17
1/02/2018
16
DAWR to AFMA - agenda for meeting and draft
DAWR
email
material under section
foreign fishing policy
47C of FOI Act - redaction
made under section 22 of
FOI Act
11
Release in full - redaction
of junior staff's names
18
31/01/2018
1
DAWR to AFMA - request for details relating to the DAWR
email
under section 22 of FOI
operations of the fishing vessel Rahua
Act
Release in part - contains
exempt deliberative
19
18/01/2018
15
DAWR to AFMA - request for comment on draft
DAWR
email
material under section
foreign fishing policy
47C of FOI Act - redaction
made under section 22 of
FOI Act
Release in part - contains
exempt deliberative
20
8/11/2017
3
DAWR to AFMA -request for meeting on foreign
DAWR
email
material under section
fishing policy
47C of FOI Act - redaction
made under section 22 of
FOI Act
Release in part - contains
exempt deliberative
21
6/09/2017
2
DAWR to AFMA -request for meeting on foreign
DAWR
email
material under section
fishing policy
47C of FOI Act - redaction
made under section 22 of
FOI Act
Conditionally exempt -
contains deliberative
22
25/08/2017
2
DAWR to AFMA - high level principles of a foreign DAWR
email
material under section
fishing policy
47C of FOI Act
Conditionally exempt -
DAWR to AFMA - meeting agenda and discussion
contains deliberative
23
2/05/2017
5
paper on foreign fishing policy and fishing in the
DAWR
email
material under section
Western Tuna and BillFish Fishery
12
47C of FOI Act
Conditionally exempt -
contains deliberative
24
1/09/2016
6
DAWR to AFMA - request for comment of foreign
DAWR
email
material under section
fishing review
47C of FOI Act
Release in part - contains
exempt deliberative
25
3/09/2015
5
AFMA to DAWR - confirming attendance at foreign DAWR
email
material under section
fishing policy review workshop
47C of FOI Act - redaction
made under section 22 of
FOI Act
Release in part - contains
exempt deliberative
26
25/05/2017
4
DAWR to AFMA - comments on draft letter from
DAWR
email
material under section
AFMA CEO to DAWR
47C of FOI Act - redaction
made under section 22 of
FOI Act
Release in part - contains
exempt deliberative
27
30/10/2015
19
AFMA to DAWR - comments on foreign fishing
DAWR
email
material under section
policy review
47C of FOI Act - redaction
made under section 22 of
FOI Act
13
Release in part - contains
exempt deliberative
28
2/08/2016
68
AFMA to DAWR - comments on foreign fishing
DAWR
email
material under section
policy review
47C of FOI Act - redaction
made under section 22 of
FOI Act
Release in part - contains
exempt deliberative
29
17/05/2019
3
AFMA to DAWR - request for comments on draft
DAWR
email
material under section
letter from AFMA CEO to DAWR
47C of FOI Act - redaction
made under section 22 of
FOI Act
Release in part - contains
exempt deliberative
30
2/02/2018
7
AFMA to DAWR - exchange of text on guidelines to DAWR
email
material under section
foreign fishing policy
47C of FOI Act - redaction
made under section 22 of
FOI Act
Release in part - contains
exempt deliberative
31
29/05/2017
5
AFMA to DAWR - request for comments on draft
AFMA
email
material under section
letter from AFMA CEO to DAWR
47C of FOI Act - redaction
made under section 22 of
FOI Act
14
Release in part - contains
exempt deliberative
32
24/01/2018
13
AFMA to DAWR - comments on draft foreign fishing AFMA
email
material under section
policy
47C of FOI Act - redaction
made under section 22 of
FOI Act
Release in part -
contains conditionally
33
26/03/2019
1
Copy of boats declared to be Australian from 2013 - AFMA
excel
exempt commercial
2019
spreadsheet
nature information
section 47G of FOI Act -
redaction of irrelevant
information
under section 22 of FOI
Act
15
