14 May 2021
Mr Elias Ross
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 20/12/00395
File Number:
OBJ2020/38853
Dear Mr Elias Ross
Freedom of Information (FOI) request - Access Decision
On 10 December 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:
Al email correspondences and other documentation that were generated by the
Department in the processing and refusal of my previous request for the document
'Response to a Suspected Il egal Entry Vessel and Unauthorised Maritime Arrivals
in Australia's Migration Zone (BE-6309)'. A full record of this request can be found
here:https://www.righttoknow.org.au/request/procedural_instructions_maritime#inco
ming-19124.
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 fol owing:
• 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)
5 Chan Street Belconnen ACT 2617
• Telephone: 02 51279123 • Fax:
• www.homeaffairs.gov.au
• advice from Departmental officers with responsibility for matters relating to the
document to which you sought access
4
Document in scope of request
The Department has identified 24 documents as falling within the scope of your request.
The documents were in the possession of the Department on 10 December 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 23 documents in part with deletions
• Exempt one document in full from disclosure
6
Reasons for Decision
Detailed reasons for my decision are set out below.
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 15 December 2020, the Department advised you that its policy is to exclude the
personal details of officers not in the Senior Executive Service (SES). This also includes
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.Section 22 of the FOI Act – deletion of exempt material
I have decided to prepare an edited copy of the documents. The grounds upon which the
edited copies of these documents have been prepared are set out in the Schedule of
Documents.
- 2 –
link to page 3 link to page 3
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 notable, this was introduced 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
established through Operation Sovereign Borders (OSB). OSB is a military-led, border
security initiative supported and assisted by a wide range of Australian Government
agencies. The establishment of OSB Joint Agency Task Force (JATF) has been to ensure
a whole-of-government effort aimed at combating maritime people smuggling and
protecting Australia's borders.
Since its establishment on 18 September 2013, OSB has successfully reduced the number
of il egal maritime ventures to Australia and prevented loss of life at sea. The Australian
Government remains commit ed 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 of the Australian coast. In undertaking this
work, the vessels are under the direction of Maritime Border Command (MBC), 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:
• il egal exploitation of natural resources
• illegal activity in protected areas
• illegal maritime arrivals
• prohibited imports and exports
• maritime terrorism
• piracy, robbery or violence at sea
• compromise to biosecurity
• 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.
- 4 –
• Detaining and inspecting vessels suspected of ilegal 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.
• 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).
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 per cent 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. Particularly 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, and would increase the risk of a wil ing person
or persons to cause harm to, or damage, Australian vessels or people.
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
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.
- 5 –
link to page 6
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.
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.
Some information marked 's47E(d)' consists of internal operational email addresses used
by the Department, and are not otherwise publicly available. It is reasonable to find
disclosure of this information could result in potential vexatious communication and public
inquiries to business areas not resourced to manage communication from members of the
public. The Department has established channels of communication for members of the
public, and I consider there is no public interest in disclosing internal operational contact
details for business areas within the Department. Taking into consideration the operational
focus of those business areas, it’s reasonable to expect such a diversion of resources could
have a substantial adverse effect on the proper and efficient conduct of their operations.
Resulting in a substantial adverse effect to the operation of the 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 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 The p Section 47F of the FOI Act – Personal Privacy
Section 47F of the FOI Act provides that a document is conditionally exempt if its disclosure
under the FOI Act would involve the unreasonable disclosure of personal information of
any person. ‘Personal information’ means information or an opinion about an identified
individual, or an individual who is reasonably identifiable, whether the information or opinion
is true or not, and whether the information or opinion is recorded in a material form or not
(see s 4 of the FOI Act and s 6 of the
Privacy Act 1988).
I consider that disclosure of the information marked 's47F' in the documents would disclose
personal information relating to third parties. The information within the documents would
reasonably identify a person, either through names, positions or descriptions of their role
or employment circumstance.
When deciding whether the disclosure of the personal information would be ‘unreasonable’,
I have had regard to the four factors set out in s.47F(2) of the FOI Act:
• The extent to which the information is well known.
• Whether the person to whom the information relates is known to be (or to have
been) associated with the matters dealt with in the document.
• The availability of the information from publicly available resources
- 6 –
• Any other matters that I consider relevant.
I find the information has been limited to a group of people with a business need to know.
The individual concerned is not generally known to be associated with the matters
discussed in the document, and the information is not available from publicly accessible
sources.
I am satisfied that disclosure of the information within the documents would involve an
unreasonable disclosure of personal information about an individual.
I therefore decide the information referred to above is conditionally exempt under section
47F of the FOI Act
6.5 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.
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 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.
- 7 –
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.
•
Disclosure of the operational email addresses which are conditionally 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 this would be contrary to the public interest and that
this factor weighs strongly against disclosure of the exempt information.
In deciding whether access to the documents would, on balance, be contrary to public
interest I have had regard to section 11B(4) of the Act and have not taken into account the
following irrelevant factors:
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.
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.
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.
- 8 –
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.
Adelie
Position number: 60086901
Authorised Decision Maker
Department of Home Affairs
- 9 –
SCHEDULE OF DOCUMENTS
REQUEST UNDER FREEDOM OF INFORMATION ACT 1982
FOI request: FA 20/12/00395
File Number: OBJ2020/38853
No.
Date of
Description
Decision on release
document
1. 24.09.2020
FOI Request
Exempt in part 22(1)(a)(ii)
47F
2. 25.09.2020
Acknowledgement email
Exempt in part 22(1)(a)(ii)
47F
3. 25.09.2020
New FOI Request Notification
Exempt in part 22(1)(a)(ii)
email
47E(d)
47F
4. 19.10.2020
Request for extension of time
Exempt in part 22(1)(a)(ii)
47F
5. 19.10.2020
OAIC Extension of time form
Exempt in part 22(1)(a)(ii)
47F
6. 25.09.2020
FOI email requesting documents Exempt in part 22(1)(a)(ii)
sent to JATF OSB
47E(d)
47F
7. 29.09.2020
Email correspondence between Exempt in part 22(1)(a)(ii)
FOI Section and Humanitarian
Program Capability Branch
47E(d)
47F
8. 29.09.2020
Email correspondence between Exempt in part 22(1)(a)(ii)
FOI Section, JATF OSB and
Humanitarian Program Capability
47E(d)
Branch
47F
9. 29.09.2020
Email correspondence between Exempt in part 22(1)(a)(ii)
FOI Section, JATF OSB and
Humanitarian Program Capability
47E(d)
Branch
47F
10. 11.10.2019
Procedural Instruction –
Exempt in full 33(a)(i)
Response to a Suspected Il egal
Entry Vessel and Unauthorised
47E(d)
Maritime Arrivals in Australia’s
Migration Zone
11. 9.10.2020
FOI Section internal email
Exempt in part 22(1)(a)(ii)
correspondence
47F
12. 13.10.2020
FOI email correspondence with Exempt in part 22(1)(a)(ii)
ABF seeking decision maker
47E(d)
47F
- 10 –
No.
Date of
Description
Decision on release
document
13. 25.09.2020
FOI email correspondence with Exempt in part 22(1)(a)(ii)
JATF OSB regarding document
47E(d)
47F
14. 14.10.2020
FOI internal email
Exempt in part 22(1)(a)(ii)
correspondence
47F
15. 21.10.2020
FOI email correspondence with Exempt in part 22(1)(a)(ii)
JATF OSB
47E(d)
47F
16. 23.10.2020
FOI email - file note of discussion Exempt in part 22(1)(a)(ii)
47E(d)
17. 28.10.2020
FOI email correspondence with Exempt in part 22(1)(a)(ii)
JATF OSB
47E(d)
47F
18. 27.10.2020
Email correspondence between Exempt in part 22(1)(a)(ii)
JATF OSB and ABF ABOC
47E(d)
47F
19. 29.10.2020
Draft decision letter
Exempt in part 47F
20. 3.11.2020
FOI email correspondence with Exempt in part 22(1)(a)(ii)
ABF ABOC
47E(d)
47F
21. 3.11.2020
FOI email correspondence with Exempt in part 22(1)(a)(ii)
JATF OSB
47E(d)
47F
22. 9.11.2020
Signed decision record
Exempt in part 47F
23. 9.11.2020
Decision email to applicant
Exempt in part 22(1)(a)(ii)
Attachment (duplicate – refer to
47F
No.22
24. 9.11.2020
FOI email to relevant business
Exempt in part 22(1)(a)(ii)
areas notifying of decision
47E(d)
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Document Outline
