11 May 2023
Arj S
BY EM AIL: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
In reply please quote:
FOI Request:
FA 23/02/01635
File Number:
FA 23/02/01635
Dear Arj S
Freedom of Information (FOI) request – Notice of charge decision under section 29(8) of
FOI Act following applicant contention that charge be reduced or not imposed
On 25 February 2023, the Department of Home Affairs (the Department) received a request for
access to documents under the
Freedom of Information Act 1982 (the FOI Act).
On 14 March 2023, the Department wrote to you to advise you that it has made a preliminary
assessment that you were liable to pay a charge for the processing of this FOI request. On 13
April 2023, you requested the Department waive or reduce the charge.
The purpose of this letter is to provide the decision of the Department in response to your request
for a waiver or reduction of charges.
1
Scope of request
You have requested access to the following:
I am requesting the following documents.
1. Key Briefs relating to Outcome 2 of Senate Estimates February 2023 2. Key Briefs
relating to Outcome 3 of Senate Estimates February 2023.
In response to the Practical Refusal Notice dated 8 March 2023, you re-scoped the scope
as follows:
Decision: I am seeking to revise my request to the following:
The key briefs relating to outcome 2 of the February Senate Estimate hearing, outcome 2
refers to: "Support a prosperous and united Australia through effective coordination and
delivery of immigration and social cohesion policies and programs."
6 Chan Street Belconnen ACT 2617
PO Box 25 Belconnen ACT 2616 Telephone: 02 6264 1111
www.homeaffairs.gov.au
Please note the Outcome 2 key briefs for October Senate estimates hearing was
released to the applicant on 30 January 2023 (File number FA 22/11/00795)
2
Preliminary notice of charges
On 14 March 2023, the Department wrote to you to advise you that it had made a preliminary
assessment that you were liable to pay a charge of $208.00 for the processing of this FOI request.
3
Request for waiver/reduction of charges
On 13 April 2023 you requested a waiver or reduction of the charges on the following grounds:
public interest (section 29(5)(b) of the FOI Act).
Your reasons for requesting a waiver were as follows:
I refer to FOI request FA 23/02/01635 which was made on 25 February 2023. The
Department contacted me on 14 March 2023 with an invoice for this FOI request.
Please note due to formatting issues, the correct AGLC4 citation could not be added and
the document has included the case citation within the text for the relevant authorities.
I contest the charges are incorrect as the access to the documents is in the general
public’s interest or in the interest of a substantial section of the public. Section 29(1)(f)(ii)
of the FOI Act 1982 (Cth) gives the power to contest such charges imposed by the
agency or the Minister.
Documents Requested:
“The key briefs relating to outcome 2 of the February Senate Estimate hearing, outcome
2 refers to: "Support a prosperous and united Australia through effective coordination and
delivery of immigration and social cohesion policies and programs."
Public Interest Tests
As outlined in the assessment notice provided by the Department on 14 March 2023, one
of the grounds I could contest the charges imposed on this FOI request is the documents
released is in general public’s interest or in the interest of a substantial section of the
public.
One of the main ways to assess public interest is to refer to the Freedom of Information
Guidelines published by the Australian Information Commissioner (Wilson AM v Office of
the Australian Information Commissioner 2023) Paragraph 6.5 of the Guidelines set out
the general principles regarding what is in the public interest:
• something that is of serious concern or benefit to the public, not merely of individual
interest;
•not something of interest to the public, but in the interest of the public;
•not a static concept, where it lies in a particular matter will often depend on a balancing
of interests;
•necessarily broad and non-specific, and
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•related to matters of common concern or relevance to al members of the public, or a
substantial section of the public.
The guidelines went on further to state it is not necessity for a matter to be in the interest
of the public as a whole. It may be sufficient that the matter is in the interest of a section
of the public bounded by geography or another characteristic th at depends on the
particular situation.
In Wilson v Office of the Australian Information Commissioner, the AAT by referece to the
guidelines, listed the public interest lists within the FOI Act. The factors that in particular
relevant to this situation are:
(a)promotes the objects of the FOI Act, including to:
(i)inform the community of the Government’s operations, including, in particular, the
policies, rules, guidelines, practices and codes of conduct followed by the Government in
its dealings with members of the community
(ii)reveal the reason for a government decision and any background or contextual
information that informed the decision
(iii)enhance the scrutiny of government decision making
The AAT went out further to explain the factors in favour of disclosure and the ways for
an agency to balance such operation [67]. The tribunal in conclusion found the ground of
public interest against disclosure outweighs the other because the disclosure of the
document, although considered as an exempt file, would have very real and serious
negative consequences for the future operation of the respondent. The tribunal in this
case focused on the possible consequences of the release of documents that
Application in this case
The main difference between the Wilson case and the present FOI request is the possible
consequences the release of the document may have.
As stated above, the test for public interest under FOI is not exhaustive and as stated in
Wilson v AIC, the balance should be outweighed based on the particular facts of the
matter at the time the decision is made.
Facts in the case
This FOI request concerns outcome 2 February 2023 Senate Budget Estimate. As stated
in the guidelines and the FOI Act, a document would be considered as a matter of public
interest if:
• it related to matters of common concern or relevance to all members of the public, or a
substantial section of the public.
I refer you to the title of this outcome: Support a prosperous and united Australia thr ough
effective coordination and delivery of immigration and social cohesion policies and
programs."
One of the main duties of the Department is to maintain social cohesion and effectively
coordinate the delivery of the Australian Immigration program. Th ese documents have
particular importance to the Australian community because the Department’s work would
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have a profound impact on the Australian people, but also on the national interest itself.
There are NO possible factors against such disclosure as the key briefs would not
include:
…
• Personal information,
• To prejudice the fair treatment of individuals
• Prejudice the management of the agency
…
The above is a non-exhaustive list and the FOI Act has clearly stated the agency should
ensure no irrelevant factor will be considered. Which includes the possible access of the
document that could result in embarrassment to the Commonwealth etc.
Conclusion
I conclude that the charges should be waived and the documents should be released to
me in accordance with the statutory timeframe.
4
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 or to amend or annotate records.
5
Relevant material
I have considered the following information:
the arguments you have put forward in your request for waiver dated 13 April 2023
the FOI Act
Guidelines published by the Office of the Information Commissioner under section
93A of the FOI Act (the FOI Guidelines).
6
Decision on waiver or reduction of charges
I have reviewed the information you provided in requesting a waiver or reduction in the charges.
Under section 29(4) of the FOI Act, the Department has decided to:
not reduce the charges, and affirm its original assessment of the charges to be
imposed.
Fol owing the Department’s decision, the amount you are liable to pay remains $208.00.
7
Reasons for decision
In reaching my decision, I have considered the following:
Whether payment of the charge, or part of it, would cause financial hardship to the
applicant or a person on whose behalf the application was made.
Whether giving access to the document in question is in the general public interest
or in the interest of a substantial section of the public.
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Whether disclosure of a document would advance the objects of the Act, for example
by promoting better informed decision making, or increasing scrutiny of or oversight
into the operations of the Department.
Financial hardship
I have determined that the payment of the charge, or part of it, would not
cause financial hardship
to the applicant. In forming that view, I have taken the following into consideration:
Applicant’s claims of financial hardship
You have not sought review of the charges on the grounds of financial hardship.
The public interest
I have determined that the disclosure of the documents is not
in the general public interest or in
the interest of a substantial section of the public. In forming that view, I have taken the following
into consideration:
Applicant’s claims that disclosure is in the public interest
You have not provided evidence in support of your claim that disclosure of the documents would
be in the public interest.
o Information relates to a decision made by the Department, and disclosure will
better inform the public on the basis for the decision.
Department’s assessment of claims that disclosure is in the public interest
Section 29(5)(b) of the FOI Act requires the Department to consider whether the giving of access
to a document or documents is in the general public interest or in the interest of a substantial
section of the public. As provided in paragraph 4.107 of the FOI Guidelines, an assessment of
the public interest may require consideration of both the content of the documents requested and
the context in which their public release would occur. Matters to be considered include whether
the information in the documents is already publicly available, the nature and currency of the
topic of public interest to which the documents relate, and the way in which the public may benefit
from the release of the documents.
I consider that the following factors indicate that disclosure is not in the public interest:
o The matters referred to in the documents are primarily of interest to the applicant. They
are not of broader public interest or of interest to a substantial section of the public.
o The disclosure of the information in the documents would not increase public
understanding of a decision made by the Department.
Part 4 of the of the OAIC guidelines with specific reference to the following has also been taken
into consideration in arriving at this decision.
4.107An applicant relying on s 29(5)(b) should identify or specify the ‘general public interest’ or
the ‘substantial section of the public’ that wil benefit from this disclosure (s 29(1)(f)(ii)). This
may require consideration of both the content of the documents requested and the context in
which their public release would occur.
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For these reasons, I have decided to not reduce the charges, and affirm the Department's original
assessment of the charges to be imposed. The amount you are liable to pay remains $208.00.
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
How to pay the charge
You may pay by using the online payment facility for credit/debit cards; automated te lephone
payment system and BPay. You may also pay the charge by cheque or money order.
Electronic funds transfer/credit card payment
If you wish to pay the charges using a credit card, the online payment facility, telephone payment
system or BPay, please refer to the tax invoice attached which will include full details of how the
payment can be made.
The deposit can be paid by cheque, money order or credit card. Cheques and money orders
should be made payable to "Collector of Public Monies DIBP" and sent to :
Freedom of Information Section
Department of Home Affairs
PO Box 25
BELCONNEN ACT 2616
9
Time in which to respond
Under the Act you have 30 days from the date of this notice to provide the Department with a
response to my decision and either agree to pay the charges or seek an internal review of my
decision. Your ful review rights are set out in the next section, headed ‘Review Rights’.
Therefore, you must provide the Department with a written response as to how you wish to
proceed by close of business
Saturday, 10 June 2023. However, as this date falls on a non-
working day, section 36(2) of the Acts Interpretation Act 1901 provides that the latest date you
may respond is close of business the next working day, which is
12 June 2023.
10
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
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
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11
M aking 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.
12
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
Susan
Case Officer Position Number: 60156398
Freedom of Information Section
FOI & Records Management Branch | Legal Group
Department of Home Affairs
E:
xxx@xxxxxxxxxxx.xxx.xx
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