fa 201100503 Decision Record.pdf

4 May 2021
Mr E Ross
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:  FA 20/11/00503
File Number:
OBJ2020/35640
Dear Mr Ross
Freedom of Information (FOI) request - Access Decision
On 10 November 2020, the Department of Home Affairs (the Department) received a request for
access to 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:
1) Enhanced Screening Operational Guidelines
2) Enhanced Screening Quality Assurance Plan.
On 16 November 2020 you revised the scope of your request to the following documents:
A previous FOI released with the file number ADF2013/18867 (Enhanced
Screening Policy Guidelines) makes reference to two documents titled 'Enhanced
Screening Operational Guidelines' and 'Enhanced Screening Quality Assurance
Plan'. These are documents that are connected to the enhanced screening process
that was introduced in 2012 for assessment of Australia's non-refoulment
obligations. As suggested by the titles, the former concerns the operational
guidelines for this policy, the later is the policy guidelines for quality assessment.
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 document or to amend or annotate records.
3
Relevant material
In reaching my decision I referred to the following:

6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 • Telephone: 02 5127 9077 • Fax:  • www.homeaffairs.gov.au

•  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
4
Document in scope of request
In  relation to  Part 1 of  your request, a document titled ‘2013 Enhanced Screening
Operational Guidelines’ was administratively released to you on 25 March 2021.
In relation to Part 2 of your request, you have requested access to the ‘Enhanced Screening
Quality Assurance Plan’.  The Department has identified one document  titled ‘Non-
Refoulement Screening Quality Control and Assurance Framework’ as falling within  the
scope of your request despite its title differing from that which you originally specified. It is
noted that this draft document was  not finalised and was not put into operation. This
document was in the possession of the Department on 10  November 2020 when  your
request was received.
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:
•  Release one document in part with deletions
Reasons for Decision
Detailed reasons for my  decision that the exemption provision applies to that information
are set out below.
5.1  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.
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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).
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.


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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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 and
•  Response and Returns—led by this Department, which includes the Australian Border
Force (ABF) and MBC
•  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 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)
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.
(b)
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.
5.2  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 the parts of documents marked ‘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.
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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 resulting in the prejudice of 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 jeopardising their future effectiveness.
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 5.3 below.

5.3  The public interest – section 11A of the FOI Act
As I  have decided that parts of the document 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.
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 does not seem to have a general characteristic
of public importance. The matter has a limited scope and, in my view, would be of
interest to a very narrow section of the public.
•
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.
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I  have also considered the following factors that weigh against the release of the
conditionally exempt information in the document:
•
Disclosure of the parts of the documents that are conditional y 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.
6
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
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.
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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.
8
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.
9
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]

Franca
Position number: 7402
Authorised Decision Maker
Department of Home Affairs
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