Case note: Kollaras & Co Pty Ltd and Department of Home Affairs

Kollaras & Co Pty Ltd and Department of Home Affairs [2026] AICmr 73 (21 August 2026)

In this recent decision, the Freedom of Information Commissioner, Alice Linacre (the Commissioner) discusses the application of ss 47E(a) and 47E(d) of the FOI Act. This decision provides useful guidance on what evidence the Commissioner will consider relevant when making a decision on conditional exemptions.

Background

On 18 November 2021, the applicant made an FOI request to the Department of Home Affairs (Department) seeking access to:

1. Final versions of any internal reports, assessments or analysis of the ABF’s performance detaching and preventing illegal importation of and/or fraudulent claims under the Duty Drawback Scheme relating to alcohol products created from 1 January 2018 to the date of this request.
2. Final versions of any revised policies and procedures relating to the detection and prevention of illegal importation of and/or the processing of duty drawback claims/refunds relating to alcohol products that were created from 1 January 2018 to the date of this request.

On 22 March 2022, the Department purported to make a decision on the applicant’s request, which had become a deemed refusal under the FOI Act, due to no decision being made within the required timeframe.

The Department found five documents that fell within the scope of request. The Department released one document in full, three in part and refused access to one document in full. The Department relied on ss 47E(a), 47E(d), 47F and 22 in refusing access to certain material within the documents at issue.

The applicant only sought review of the application of ss 47E(a) and 27E(d) in the IC review.  

The Commissioner therefore outlined that the issues to be decided on this IC review were as follows:

• whether the material that the Department contended is conditionally exempt under ss 47E(a) or 47E(d) is conditionally exempt under those provisions and, if so,
• whether giving the applicant access to that material at this time would, on balance be contrary to the public interest (s11A(5)).

Section 47E(a) - Disclosure would prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits

Section 47E(a) of the FOI Act provides that a document is conditionally exempt if its disclosure would or could reasonably be expected to ’prejudice the effectiveness of procedures or methods for the conduct of tests, examinations or audits by an agency’.

At paragraph [12] of the Decision, the Commissioner referred to paragraph [6.93] of the FOI Guidelines noting that to establish s47E(a) the decision maker is required to ’identify the likely effect of disclosure of a document and to assess whether that effect would, overall, be prejudicial to the effectiveness of a method or procedure of an audit, test or examination being conducted’. The Commissioner noted at paragraph [13] that, as per the FOI Guidelines, ’in the context of this exemption, a prejudicial effect may be one which would cause a bias or change to be expected results leading to detrimental or disadvantageous outcomes. The change does not need to have a substantial or adverse impact’.

The applicant’s submissions

The applicant submitted the following:

• As the deletions under s 47E(a) include material in the table of contents of each instruction, it is likely that the deletions under s 47E(a) are too extensive. The applicant contended that entries in a table of contents are unlikely to be conditionally exempt under s 47E(a).
• That it is likely that the instructions had been superseded so that they are now only of historical relevance, and therefore their disclosure could prejudice the effectiveness of current procedures or methods for the conduct of tests, examination or audits.
• It is unlikely that the disclosure of a procedural instruction on processing claims would be so prejudicial as to decrease the effectiveness of Australian Border Force (ABF) investigations.

The Department’s submissions

In addition to confidential submissions, the Department submitted the following:

• The documents contain specific procedures or methods by which ABF staff conduct tests, examinations, and audits to assess drawback claims, as well as considerations for further actions commensurate with the results of those tests, examination and audits.
• The release of this information would undermine the ABF’s ability to properly administer duty drawback, control and correct inadvertent errors of omissions by applicants and combat fraudulent activity, and would undermine the effectiveness of those tests, examinations and audits used in administering the scheme, in particular by giving malicious actors insight into the nature of those tests, examination and audits and how they could be circumvented.
• This in turn would reduce the ABF’s ability to detect fraudulent activity and therefore to properly manage revenue collection.
• If disclosed, the material would be rendered ineffectual and new tests, examinations and audits would need to be developed. This would be a complex undertaking as the new tests, examinations and audits would need to be compatible with the ABF’s broader practices and systems (as the current procedures are).
• While the procedural instructions have been updated since their creation, the procedures described in the documents remain current.

Consideration

Having considered the above outlined submissions and the documents at issue, the Commissioner found that the material which the Department had deleted from the documents (including the headings in the table of contents) was conditionally exempt under s 47E(a).

The Commissioner was satisfied that this material consisted of ‘procedures or methods for the conduct of tests, examination or audits’ for the purposes of s 47E(a) as it set out the detailed steps to be followed in assessing applications under the scheme.

The Commissioner, having regard to the nature of the deleted material, the fact that those procedures remain current, and the context to which those procedures are relevant,  considered that the disclosure of this material could be reasonably expected to prejudice the effectiveness of the procedures.

The Commissioner considered the disclosure of the material could assist malicious actors to circumvent the proper administration of the scheme and that this would be likely to prejudice the ability of the ABF to detect or prevent fraudulent activity relating to the scheme and therefore to effectively protect Commonwealth revenue. The Commissioner  considered this would be disadvantageous or detrimental to those procedures or methods.

The Commissioner therefore found that the material the Department deleted from the documents pursuant to s 47E(a) is conditionally exempt under that provision.

Certain operations of agencies exemption (s 47E(d))

The Department submitted that certain information in the documents that it did not contend was conditionally exempt under s 47E(a) was instead conditionally exempt under s 47E(d).

The Commissioner noted that, under s 47E(d), a document will be conditionally exempt to the extent its 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.

The Department’s submissions

The Department submitted that the disclosure of this material would reveal ABF operational methods for administering and assessing drawback claims and assessing risks posed by individual claims. It contended that, as such, disclosure of this material this material would be reasonably likely to enable malicious actors to circumvent the ABF’s operational methods and would compromise the ABF’s ability to counter fraud. In turn, this would undermine the ABF’s ability to combat fraudulent activity and protect Commonwealth revenue.

The Applicant’s submissions

The Applicant submitted that:

• It is unlikely that the disclosure of a procedural instruction on processing claims would have a substantial adverse effect on the proper and efficient conduct of the operations of the ABF.
• The disclosure of information relating to the processing of duty drawback cannot necessarily have an adverse effect of the proper and efficient conduct of the operations of the ABF. This needs to be determined on a case-by-case basis.
• That it was likely that the material had been superseded so that it is now only of historical relevance, and therefore its disclosure was unlikely to have a substantial adverse effect of the proper and efficient operations of the ABF.

Consideration

Having examined the material deleted pursuant to s 47E(d) alone, the Commissioner agreed with the Department that the material consisted of information concerning operational methods used by the ABF in assessing drawback claims and assessing the risk of fraud.

The Commissioner considered that the release of material under s47E(d) would in fact have an adverse effect on the ABF that would be [26] ’real or of substance and not insubstantial or nominal’ and therefore agreed that the material was conditional exemption under s47E(d).

Whether access would be contrary to the public interest (s 11A(5) of the FOI Act)

Having found that the material deleted pursuant to  ss 47E(a) and 47E(d) was conditionally exempt under those provisions, the Commissioner then considered whether it would, on balance, be contrary to the public interest to give access to this information (s 11A(5)).

The Commissioner considered the submissions of the applicant that the release of information would not be contrary to the public interest, and the Department which submitted that the information merely affected a narrow section of the community and that disclosure would not promote debate on a matter of public importance.

The Commissioner agreed at that the information was not a matter of general public importance. The Commissioner found that the potential harm that disclosure of the material at issue could cause to the effectiveness of the ABF’s processes to detect and prevent fraud in the context of the Scheme outweighs any benefit to the public interest of such disclosure.

Ultimately, the Commissioner found that the public interest factors against disclosure of the information that was found to be conditionally exempt under ss 47E(a) or 47E(d) outweigh the factors favouring disclosure. The Commissioner therefore found that it would be contrary to the public interest to release the conditionally exempt material.

Key takeaways

1. For agencies to establish a conditional exemption, it is important to establish the current risk that disclosure would cause. With the passing of time, material may become less sensitive. In this matter, the Department was able to establish that the material at issue (and the procedures described) remained in current use.
2. For s 47E(a) in particular, decision-makers should seek to pinpoint the particular examination, test or audit that disclosure would prejudice, and then trace the causal link from the specific content of the document to a prejudicial effect on that specific process.
3. Wherever possible, agencies should identify the specific harm disclosure would cause, not merely assert that harm would follow.

If your agency requires advice or assistance with the processing of FOI requests, or managing IC review matters, please reach out to Chantal Tipene and our team of leading FOI specialists would be happy to assist.