5 August 2020
Mr E Ross
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 20/06/00253
File Number:
OBJ2020/18661
Dear Mr Ross,
Freedom of Information (FOI) request - Access Decision
On 4 June 2020, 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 for access under the
FOI Act.
1
Scope of request
You have requested access to the following documents:
Al 'Individualised Assessment Obligations File Notes', 'Individualised Assessment
Protection File Notes' and other documents that have been written for the
individualised assessments undertaken when persons travelling by boat from Sri
Lanka in an attempt to reach Australia have been intercepted and interviewed at
sea.
On 25 June 2020 the Department issued you a notice under section 24AB of the FOI Act.
On 25 June 2020, you provided a response and amended the scope of your request to:
During the Operations Sovereign Borders reporting period 1 August 2019 to 31
August 2019, 13 Sri Lankan nationals were intercepted by the Australian
Government at sea. Please provide the Individualised Assessment Obligations File
Notes and Individualised Assessment Protection File Notes which were conducted
for the purposes of individualised assessment of Australia's non-refoulement
obligations. Please also provide interview transcripts and screening outcomes for
those 13 people assessed.
6 Chan Street Belconnen ACT 2617
PO BOX 25 Belconnen ACT 2616 • Telephone: 02 6264 1111 • Fax: 02 6225 6970 • www.homeaffairs.gov.au
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
4
Documents in scope of request
The Department has identified two documents as falling within the scope of your request.
These documents were in the possession of the Department on 4 June 2020 when your
request was received.
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:
• Release two documents in part with deletions
6
Reasons for Decision
My findings of fact and reasons for deciding that the exemption provision applies to that
information are set out below.
6.1 Section 22 of the FOI Act – irrelevant to request
Section 22 of the FOI Act provides that if giving access to a document would disclose
information that would reasonably be regarded as irrelevant to the request, it is possible for
the Department to prepare an edited copy of the document, modified by deletions, ensuring
that the edited copy would not disclose any information that would reasonably be regarded
as irrelevant to the request.
On 5 June 2020, the Department advised you that its policy is to exclude the personal
details of officers not in the Senior Executive Service (SES), as well as the mobile and work
telephone numbers of SES staff, contained in documents that fall within scope of an FOI
request.
I have decided that parts of documents marked ‘s22(1)(a)(i )’ would disclose information
that could reasonably be regarded as irrelevant to your request. I have prepared an edited
copy of the documents, with the irrelevant material deleted pursuant to section 22(1)(a)(i )
of the FOI Act.
The remainder of the documents have been considered for release to you as they are
relevant to your request.
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6.2 Section 33 of the FOI Act – Documents affecting National Security, Defence or
International Relations
Section 33(a)(i) of the FOI Act permits exemption of a document if disclosure of the
document would, or could reasonably be expected to cause damage to the security of the
Commonwealth.
For the reasons set out below, I consider that there are real and substantial grounds for
expecting that the disclosure of the documents exempted under section 33(a)(i) would
cause damage to the security of the Commonwealth.
Security
‘Security’ is a concept with a fluctuating content which can depend upon the circumstances
as they exist from time to time.1 ‘Security of the Commonwealth’ is defined in section 4(5)
of the FOI Act as follows
(5) Without limiting the generality of the expression security of the
Commonwealth, that expression shall be taken to extend to:
(a) matters relating to the detection, prevention or suppression of
activities, whether within Australia or outside Australia, subversive of,
or hostile to, the interests of the Commonwealth or of any country
allied or associated with the Commonwealth; and …
I also consider that the definition of ‘security’ in the
Australian Security and Intelligence
Organisation Act 1979 is relevant.2 That Act defines ‘security’ as:
(a) The protection of, and of the people of, the Commonwealth and
the several States and Territories from:
(i)
Espionage
(ii) Sabotage
(iii) Politically motivated violence
(iv) Promotion of communal violence
(v) Attacks on Australia’s defence system; or
(vi) Acts of foreign interference;
Whether directed from, or committed within, Australia or not; and
(aa) the protection of Australia’s territorial and border integrity from
serious threats; and
(b) The carrying out of Australia’s responsibilities to any foreign
country in relation to a matter mentioned in any of the
subparagraphs of paragraph (a) or the matter mentioned in
paragraph (aa).
Paragraph (aa) is particularly on point. It was inserted by the
Anti-People Smuggling and Other
Measures Act 2010 (Cth) (Schedule 2). The Explanatory Memorandum for the
Anti-People
Smuggling and Other Measures Bil 2010 (Cth), states that ‘
serious threats to Australia’s territorial
and border integrity’ include ‘
those posed by people smuggling activities’ (at 2-3).
1
Church of Scientology v Woodward (1982) 154 CLR 25 at [19].
2 See
Staats and National Archives of Australia [2010] AATA 531 at [99].
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Operation Sovereign Borders
The Department is part of a whole-of-government response to border protection issues that
has been established through Operation Sovereign Borders (OSB). OSB is a military-led,
border security initiative supported and assisted by a wide range of federal government
agencies. The OSB Joint Agency Task Force (JATF) has been established to ensure a
whole-of-government effort aimed at combating maritime people smuggling and protecting
Australia's borders.
OSB was established on 18 September 2013 and has successfully reduced the number of
il egal maritime ventures to Australia and prevented loss of life at sea. Australia remains
committed to ending the criminal activity of people smuggling. It aims to ensure that
Australia has effective control of the circumstances in which people enter Australia.
The JATF is supported by two operational task groups:
• Disruption and Deterrence Task Group—led by the Australian Federal Police and
• Detection, Interception and Transfer Task Group—led by this Department, which
includes the Australian Border Force (ABF) and MBC.
Vessel tasks
The vessels referred to in the documents are engaged in a range of operations on behalf
of the Australian Government, patrolling waters off the Australian coast. In undertaking
that work the vessels are under the direction of Maritime Border Command (MBC). MBC
is Australia’s lead maritime law enforcement agency. It brings together officers from the
Department and the Department of Defence (Defence) as a joint multi-agency taskforce to
identify and respond to il egal activity in Australia’s Maritime Jurisdiction (the AMJ). The
vessels include Australian Navy vessels, MBC vessels and civilian vessels contracted to
the Department.
The vessels are responsible for a number of functions, including in relation to:
• il egal exploitation of natural resources;
• il egal activity in protected areas;
• illegal maritime arrivals;
• prohibited imports and exports;
• maritime terrorism;
• piracy, robbery or violence at sea;
• compromise to biosecurity; and
• marine pollution.
In respect of these areas of responsibility, the vessels and their crew have a range of
functions and powers including:
• patrolling Australia’s Maritime Jurisdiction (AMJ);
• surveil ance and intelligence gathering;
• detaining and inspecting vessels suspected of il egal activity within the AMJ;
• taking control of vessels or directing them to take particular action, including leaving
the AMJ or sailing under the Australian vessel’s watch to a designated destination;
and
• where necessary, destroying craft which pose a risk to Australia (such as craft which
are infected with biohazardous organisms, or craft engaged in maritime terrorism).
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For a document (or part of a document) to be exempt under s 33(a)(i), I must be satisfied
that, on the balance of probabilities, disclosure would, or could reasonably be expected to,
cause damage to the security of the Commonwealth.
I consider that the disclosure of the information contained within the document that I regard
as exempt under s 33(a)(i) could cause damage to the security of the Commonwealth by
compromising operational functions, increasing the risk to Australian vessels and
personnel and encouraging il egal activity. I consider the particular damage to the security
of the Commonwealth to be as follows:
(a)
Information within the documents would provide insight into the manner in which
vessels involved in national security operations undertake those functions, including
tactics, training and procedures.
(b)
Australia’s maritime borders are vast. Australia’s maritime domain comprises some
12 million square nautical miles – about 11.5% of the world’s oceans. Australia has
insufficient resources to continuously patrol every possible point of maritime entry
into Australia. Even if the insight afforded is considered to be slight, any reduction
in the efficiency or effectiveness of current operational methods is likely to have
significant consequences given the ever-present challenge of managing such an
enormous jurisdiction with finite resources.
(c)
If the exempt information contained within this Joint Review Report were released,
border protection authorities would be forced to revise current operational
methodology to minimise the harm caused by those disclosures. This is, by
definition, damage to security operations. Current procedures and activities are set
with a view to achieving maximum security outcomes with the available resources.
Any changes required by a need to counter the advantage afforded to vessels or
persons engaging in il egal maritime activities necessarily represents a compromise
to operational effectiveness.
(d)
Increasing the risk to Australian vessels and personnel undertaking border
protection work. Patrolling and protecting Australia’s AMJ is an inherently
dangerous task. By releasing information that would make the activities of
Australian vessels more predictable, the risk that a person would be wil ing to, and
successful in, causing harm or damage to Australian vessels or people is increased.
(e)
A significant component of Australia’s border protection strategy is the deterrent
effect of routine patrolling of the AMJ. Persons with an interest in undertaking il egal
activities in the AMJ - and compromising Australia’s border security in the process
- run the risk that they wil be detected and intercepted by Australian vessels. By
disclosing information which has the potential, or even creates a perceived
potential, to assist in circumventing those patrol operations, encouragement is given
to those persons that they may be able to more successfully elude border protection
patrol vessels.
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(f)
In some cases a people smuggling voyage sets out with the intention of intersecting
with border protection vessels at an early stage. The release of vessel positioning
information is likely to be used by people smugglers to good effect to increase the
confidence of potential passengers in the likelihood of the success of the people
smuggling venture, thereby encouraging more passengers on more voyages.
Given the finite resources available for detecting and dealing with such activities,
this increases the risk that such activities wil be successful. This increased risk of
success itself is reasonably expected to damage the security of the Commonwealth.
(g)
The disclosure of the exempt information would likely provide people smuggling
operators with official government information which they could use to manipulate
and convince any potential il egal immigrants to embark on voyages to Australia.
This would be an improper use of the information which may also cause a risk to
human life. To disclose information that indicates the success or otherwise of
ventures may also encourage others to engage in people smuggling activities. I
consider that there is a strong public interest in preventing the potential risk to
human life associated with people smuggling.
As such I have decided that the information marked '
s33(a)(i)" in the document(s) is exempt
from disclosure under section 33(a)(i) of the FOI Act.
6.3 Section 47E of the FOI Act – Operations of Agencies
6.4 The public interest – section 11A of the FOI Act
As I have decided that parts of the documents are 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 part of 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 part of the document
would be, on balance, contrary to the public interest.
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.
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Having regard to the above:
• I am satisfied that access to the documents would promote the objects of the
FOI Act.
• I consider that the subject matter of the documents does not seem to have the
character of public importance. The matter has a very limited scope and, in my
view, would be of interest to a very narrow section of the public.
• I consider that no insights into public expenditure wil be provided through
examination of the documents.
• I am satisfied that you do not require access to the documents 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 documents:
• disclosure of the parts of the documents that are conditionally exempt under
section 47E(d) of the FOI Act could reasonably be expected to prejudice law
enforcement functions and, as a result, the ability of the Department to protect
Australia's borders. I consider there to be a strong public interest in ensuring
that the ability of the Department to conduct its law enforcement functions is
not compromised or prejudiced in any way. I consider that this would be
contrary to the public interest and that this factor weighs strongly against
disclosure.
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.
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8
Your Review Rights
Internal Review
If you disagree with this decision, you have the right to apply for an internal review by the
Department of this decision. Any request for internal review must be provided to the
Department within 30 days of you being notified of the decision. Where possible please
attach reasons why you believe a review of the decision is necessary. The internal review
wil be carried out by an officer other than the original decision maker and the Department
must make a review decision within 30 days.
Applications for review should be sent to:
By email to: xxx.xxxxxxx@xxxxxxxxxxx.xxx.xx
OR
By mail to:
Freedom of Information Section
Department of Home Affairs
PO Box 25
BELCONNEN ACT 2617
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 see Fact Sheet 12 "Freedom of information – Your review rights", available online
at https://www.oaic.gov.au/freedom-of-information/foi-review-process.
9
Making a Complaint
You may complain to the Australian Information Commissioner about action taken by the
Department in relation to your request.
Your enquiries to the Australian 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 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 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.
[Signed electronically]
Position Number 60083089
Authorised Decision Maker
Department of Home Affairs
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