FA 22 08 01482 Decision.PDF.pdf

21 September 2022
BE
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply, please quote:
FOI Request:  FA 22/08/01482
File Number:
OBJ2022/23140
Dear BE
Freedom of Information (FOI) request – Access Decision
On 25 August 2022, 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:
I  seek access to any Hot Issues Briefs provided by the Department to a portfolio Minister during the period 1 August 2022 -
20 August 2022.
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:
•
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

6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 • Telephone: 02 6264 1111 • www.homeaffairs.gov.au

4
Document in scope of request
The Department has identified one document as falling within  the scope of  your request. This
document was in the possession of the Department on 25 August 2022 when your request was
received.
5
Decision
The decision in relation to the document in the possession of the Department, which falls within
the scope of your request, is as follows:
•
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 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 fol ows
(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 …



1 Church of Scientology v Woodward (1982) 154 CLR 25 at [19].
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I  also consider that the definition of ‘security’ in the Australian Security 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.
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 activities performed
by the Department both in response to, or as a result of, an incident falling within
the national security functions of the Department.
(b)
If the exempt information contained within this  document  were  released, the
Department  would be forced to  revise current  national security  response
methodologies 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 to these methodologies by a need to counter the advantage
afforded to persons engaging, or preparing to engage, in illegal activities represents
a compromise to the effectiveness of the methodologies and therefore a reduction
to national security.
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.
6.2  Section 37 of the FOI  Act - Documents Affecting Enforcement of Law and
Protection of Public Safety
Section 37(2)(b) of the FOI Act provides that a document is exempt from disclosure if its
disclosure would, or could reasonably be expected to disclose lawful methods or procedures for
preventing, detecting, investigating, or dealing with matters arising out of breaches or evasions
of the law the disclosure of which would or could reasonably likely to, prejudice the effectiveness
of those methods or procedures.
I consider that parts of  document would, or could reasonably be expected to  disclose lawful
methods or procedures for preventing or detecting breaches or evasions of the law  and that
disclosure would, or would reasonably likely to, prejudice the effectiveness of those methods or
procedures.


2 See Staats and National Archives of Australia [2010] AATA 531 at [99].
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It  is noted that the Department’s role includes managing the security and integrity of Australia's
borders. The Department leads the management of  risks to Australia's border in  close
collaboration with  other government agencies, including State  and Federal law  enforcement
agencies.  As such, the Department's role includes law enforcement functions.
The disclosure of information within  these documents would  be reasonably likely to impact on
ongoing investigative methodology and relationships both domestically and internationally that
support Australian government investigative capabilities. The release of this information would
prejudice the effectiveness of those methods or procedures, assisting endeavours to evade them
and thereby reducing the ability of the Department and other law enforcement agencies to protect
the borders of Australia.
I  have decided that this information is exempt from disclosure under Section 37(2)(b) 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.
I  consider that the disclosure of the document 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.
Information marked 's47E(d)' 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 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 the document is 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 6.4 below.
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6.4  The public interest – section 11A of the FOI Act
As I have decided that the document is 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 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 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)  Al ow  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 have the character of public importance
and that there may be broad public interest in the document.
•
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 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.

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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.
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

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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
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
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.

Yours sincerely

[Electronically signed]

Justin
Position No. 60071849
Authorised Decision Maker
Department of Home Affairs

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