FA 22 11 01372 Decision.pdf

22 January 2023
Oliver Smith
BY EMAIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request: FA 22/11/01372
File Number:
FA22/11/01372
Dear Oliver Smith
Freedom of Information (FOI) request – Access Decision
On 25 November 2022, 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:
Under the Freedom of Information Act 1982 (FOI Act), I am seeking access to ministerial
brief and all other relevant department advice to the Minister for Immigration, Citizenship
and Multicultural Affairs and his office in relation to the issue of Novak Djokovic and
options regarding his entry into Australia.
I am seeking documents in my original request covering the period 22 May 2022 to the
time this application is actioned.
On 13 December 2022 you agreed to revise the scope of your request to the following
documents:
Only any ministerial brief in relation to the issue of Novak Djokovic entry into Australia.
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.

9 Wentworth Street Parramatta NSW 2150
PO Box 25 Belconnen ACT 2616 • Email:xxx@xxxxxxxxxxx.xxx.xx • www.homeaffairs.gov.au

3
Relevant material
In reaching my decision, I referred to:
•
the terms of your request;
•
the documents relevant to the request;
•
the FOI Act;
•
the Guidelines published by the Office of the Information Commissioner under section
93A of the FOI Act (the FOI Guidelines); and
•
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 25 November 2022 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:
•
Release two documents in part with deletions.
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 1 December 2022, 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.
Parts of the documents contain information which  consists of footers which have automatically
been added to those documents when they were printed from the Department’s system. That
information provides an online address for the Department’s computer systems and does not
form part of your file and records held by the Department about you. I consider this information
to be irrelevant to your 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.
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The remainder of the documents have been considered for release to you as they are relevant
to your request.
6.2  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.
‘Deliberative processes’ generally involves “the process of weighing up or evaluating competing
arguments or considerations”1 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.’2
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. 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.
Disclosure of this deliberative information could reasonably be expected to inhibit full and frank
advice from the Department to its Minister, and, as a result, ful  consideration by the Government
on any potential future considerations.
Section 47C(2) provides that “deliberative matter” does not include purely factual material. I have
had regard to the fact that “purely factual material” does not extend to factual material that is an
integral part of the deliberative content and purpose of a document, or is embedded in or
intertwined with the deliberative content such that it is impractical to excise it.3 A factual summary
prepared to aid a complex issue may be classed as purely factual material, but may also be of a
character as to disclose a process of section involving opinion, advice or recommendation. As
such, a  conclusion which involves a deliberative process may well  prevent material from being
purely factual4.
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.


1
Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
2
JE Waterford and Department of Treasury (No 2) [1984] AATA 67
3 Dreyfus and Secretary Attorney-General’s Department (Freedom of information) [2015] AATA 962 [18]
4 Harris v Australian Broadcasting Corporation and Others (1984) 1 FCR 150

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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 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.
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  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 parts of the documents are conditionally exempt under section 47E(d) of the
FOI Act.  Access to a conditionally exempt document must general y 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 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 section 4 of the FOI
Act and section 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.

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The FOI Act states that, when deciding whether the disclosure of the personal information would
be ‘unreasonable’, I must have regard to the following 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;
•
any other matters that I consider relevant.
I have considered each of these factors below.
The information relating to the third parties is not well known and would only be known to a limited
group of people with a business need to know. As this information is only known to a limited
group of people, the individual(s) concerned is/are not generally known to be associated with the
matters discussed in the document. This information is not available from publicly accessible
sources.
I  do not consider that the information relating specifical y to the third parties would be relevant to
the broader scope of your request, as you are seeking access to Ministerial Briefs in relation to
Novak Djokovic rather than information which wholly relates to other individuals.
I  am  satisfied that the disclosure of the information within the documents would  involve an
unreasonable disclosure of personal information about a number of individuals.
I  have decided that the information referred to above is conditionally exempt under section 47F
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.
6.5  The public interest – section 11A of the FOI Act
As  I  have decided that parts of the documents are conditionally exempt, I am now required to
consider whether access to the conditional y 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.
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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 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
documents.
•
You do not require access to the documents 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 documents:
•
Disclosure of the conditionally exempt information under section 47C of the FOI Act
could reasonably be expected to prejudice the ability of Departments across
government to provide full and honest advice to stakeholders.
•
A Ministerial Submission  plays an important role in the relationship between a
Department and its Minister. Its  purpose is to provide frank and honest advice. It  is
inherently confidential between the Department and its Minister and the preparation
of a Ministerial Submission is essentially intended for the audience of that Minister
alone. A precedent of public disclosure of advice given as a part of a Ministerial
Submission would result in:
o
concerns existing in the open and honest nature of advice being provided which
may then hinder future deliberations and decision making processes for the
Department and the Government as a whole and
o
future Ministerial Submissions being prepared with a different audience in mind,
which would compromise the quality of the advice being prepared for the
Minister.
•
I  consider that the public interest in protecting the process of the provision of free and
honest confidential advice by a Department to its Minister has, on balance, more
weight, than the public interest that might exist  in disclosing the deliberative matter.
Endangering the proper working relationship that a Department has with its Minster
and its ability to provide its Minister with  honest advice confidentially would be
contrary to the public interest.
•
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.
•
Disclosure of the personal information which is  conditionally exempt under section
47F of the FOI Act could reasonably be expected to prejudice the protection of those
individuals' right to privacy.
[Continued…..]
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•
The Department is committed to complying with its obligations under the Privacy Act
1988, which sets out standards and obligations that regulate how  the Department
must handle and manage personal information. It is firmly  in the public interest that
the Department uphold the rights of individuals to their own  privacy and meets its
obligations under the  Privacy Act.  I  consider that non-compliance with  the
Department’s statutory obligations concerning the protection of personal information
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.
7
Legislation
A copy of the FOI Act is available at 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
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
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

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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,

Jodi
Position number: 60045916
Authorised Decision Maker
Department of Home Affairs

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