FA 20.09.01170 Decision record.pdf

19 March 2021
Mr E Ross
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:  FA 20/09/01170
File Number:
OBJ2020/30645
Dear Mr Ross
Freedom of Information (FOI) request - Access Decision
On 24 September 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:
Please provide all communications between the Department and the following
organisations that were consulted for the purposes of producing the procedural
instruction Individualised Assessments (document ID: VM-5272):

- Refugee and International Law Section, Legal Advice and Operational Support
Branch
  - Temporary Protection Visa Assessment Branch
  - Secrecy and Disclosure Section
  - Status Resolution Framework Return & Removal Policy Section, Community
Protection and Border Policy Branch
  - Child Welfare Policy Section, Child Protection and Wel being Branch
  - Onshore Protection Policy Section, Humanitarian, Family and Citizenship Policy
Branch
  - Joint Agency Taskforce, Operation Sovereign Borders
  - Counter People Smuggling Section, Pacific and Transnational Issues Branch
  - Records Management Section, FOI Privacy and Records Management Branch.

6 Chan Street, Belconnen ACT 2617
PO Box 25, Belconnen ACT 2617 • Telephone: (02) 5127 9087 • Fax:  • 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 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 35 documents as falling within  the scope of  your request.
These documents were in the possession of the Department on 24 September 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:
•  Exempt 35 documents in full from disclosure
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 25 September 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 also  decided  that parts of documents would disclose information that could
reasonably be regarded as irrelevant to your request under section 22(1)(a)(i ) of the FOI
Act.
The remainder of the documents have been considered as relevant to your request.

- 2 -

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 commit ed 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].
- 3 -

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 three main lines of effort:
•  Disruption and Deterrence—led by the Australian Federal Police;
•  Response and Returns—led by this Department, which includes the Australian Border
Force (ABF) and MBC; and
•  Regional Processing and Resettlement—led by this Department.
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 documents 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:

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 in the documents is exempt from disclosure
under section 33(a)(i) of the FOI Act.
6.3  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.
‘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.
- 4 -

‘Deliberative processes’ generally involves  “the process of weighing up or evaluating
competing arguments or considerations”3 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.’4
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, being policy settings relating to, and the development of the Procedural
Instruction for  Individualised Assessments.  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, revise or prepare a policy, administer or review a
program, or some similar activity.5
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  am further satisfied that the factors set out in subsection (3) do not apply in this instance.
I  have decided that the information 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 at paragraph 6.5 below.
6.4  Section 47E of the FOI Act – Operations of Agencies
Section  47E(d) of the FOI Act provides that documents are conditionally exempt  if
disclosure would, or could reasonably be expected to, have a substantial adverse effect on
the proper and efficient conduct of the operations of an agency.
I consider that the disclosure of  parts of documents under s47E(d)  would, or could
reasonably be expected to, have a  substantial adverse effect on the proper and efficient
conduct of the operations of the Department.
Managing the security and integrity of Australia's borders is integral to the operations of the
Department.  Any prejudice to the effectiveness of the operational methods and procedures
used in undertaking that role would result in a substantial adverse effect on the operations
of the Department.
Any disclosure that could  prejudice the effectiveness of the Department’s operational
methods and procedures would result in the need for this Department, and potentially its
law  enforcement partners, to  change those methods  and/or procedures to  avoid
undermining their future effectiveness.
Some information under s47E(d) also consists of operational email addresses used by this
Department.   These email addresses are not otherwise publicly available, and disclosure
of this information could reasonably be expected to result in potential vexatious


3
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
4
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
5
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962
- 5 -

communication and public inquiries which these operational areas are not resourced to
manage.  The Department has established channels of communication for members of the
public into the Department, and I  consider there is no public interest in disclosing these
operational contact details.   Given the operational focus of those business areas, such a
diversion of the resources of that business area could reasonably be expected to have a
substantial adverse effect on the proper and efficient conduct of  the operations of this
Department and its partner agencies.
I  have decided that parts of the documents are conditionally exempt under section 47E(d)
of the FOI Act.  Access to a conditional y 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 at paragraph 6.5 below.
6.5  The public interest – section 11A of the FOI Act
As I have decided that parts of the documents are conditional y 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 parts of the documents
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.
Having regard to the above I am satisfied that:
•  access to the documents would promote the objects of the FOI Act;
•  the subject matter of the documents  does have the character of public
importance and that there may be broad public interest in the documents;
•  no insights into public expenditure wil  be provided through examination of the
documents;
•  you do not require access to the documents in order to access your own
personal information.

- 6 -

I  have also considered the following factors that weigh against the release of the
conditionally exempt information in the documents:
•  Disclosure of the conditionally exempt information under section 47C could
reasonably be expected to prejudice the ability of the Department to manage
future deliberations of a similar nature. I  consider that this would be contrary
to the public interest and that this factor weighs strongly against disclosure.
•  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 disclosure would
be contrary to the public interest and that this factor weighs strongly against
disclosure.
•  Disclosure of the operational email addresses which are conditional y exempt
under section 47E(d) of the FOI  Act would have a substantial adverse effect
on the ability of the relevant operational areas to  conduct their business as
usual. The Department has established avenues in place for members of the
public to contact when they have queries, complaints or comments. I consider
that there is  a  strong public interest in  ensuring public feedback is  filtered
through these available channels so that operational areas within the
Department are able to carry out their functions in an effective matter. I
consider that disclosure would be contrary to the public interest and that this
factor weighs strongly against disclosure of the exempt information.
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.
- 7 -

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 No. 7402
Authorised Decision Maker
Department of Home Affairs
- 8 -