21 April 2021
Mr E Ross
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request: FA 20/09/00552
File Number:
OBJ2020/29439
Dear Mr Ross
Freedom of Information (FOI) request - Access Decision
On 3 September 2020, the Department of Foreign Affairs and Trade received a request for
access to documents under the
Freedom of Information Act 1982 (the FOI Act). The request is
more closely associated with the functions of the Department of Home Affairs (the Department)
and your request was transferred to this Department on 11 September 2020.
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:
1) Memorandum of Understanding on People Smuggling and other Transnational
Border Crime (September 2017)
2) Australia-Sri Lanka Memorandum of Understanding concerning Legal
Cooperation against the Smuggling of Migrants (December 2009)
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
6 Chan Street Belconnen ACT 2616
PO Box 25 Belconnen ACT 2616 • Telephone: 02 6264 1111 • Fax: 02 6225 6970 • www.homeaffairs.gov.au
• 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 3 September 2020 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:
• Release one document in full with deletions of irrelevant information
• Exempt one document in full from disclosure
6
Reasons for Decision
Detailed reasons for my decision are set out below.
Where the schedule of documents indicates an exemption claim has been applied to a
document or part of document, 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.
I have decided that parts of the document 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 document, with the irrelevant material deleted pursuant to section 22(1)(a)(i)
of the FOI Act.
The remainder of the document has been considered for release to you as it is relevant to
your request.
6.2 Section 33 of the FOI Act – Documents affecting National Security, Defence or
International Relations
Section 33(a)(i 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 international
relations of the Commonwealth.
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The phrase 'international relations' has been interpreted as meaning the ability of the
Australian Government to maintain good working relations with other governments and
international organisations and to protect the flow of confidential information between them.
The expectation of damage to international relations must be reasonable in all the
circumstances, having regard to the nature of the information; the circumstances in which
it was communicated; and the nature and extent of the relationship. There must be real
and substantial grounds for the conclusion that are supported by evidence.
I consider that the release of document 2 would, or could reasonably be expected to cause
damage to the Australian Government's international relations under 's33(a)(i i)' of the FOI
Act.
I am of the view that the disclosure of document number 2 in Attachment A could
reasonably be expected to inhibit future negotiations between the Australian Government
and a foreign government.
As such I have decided that document 2 is exempt from disclosure under section 33(a)(ii)
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
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.
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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]
Jacinta
Position Number 60029253
Authorised Decision Maker
Department of Home Affairs
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