Australian Associated Press Pty Limited and Secretary, Department of Home Affairs (Freedom of information) - [2018] AATA 741

Australian Associated Press Pty Limited and Secretary, Department of Home Affairs (Freedom of information) [2018] AATA 741 (3 April 2018)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2017/3839
Re:Australian Associated Press Pty Limited
APPLICANT

Secretary, Department of Home Affairs And
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:3 April 2018
Place:Sydney

The decision under review is affirmed.
.....................[sgd]...............................................
Chris Puplick AM, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – request for access to documents – personal information exemption – whether disclosure would involve the unreasonable disclosure of personal information – whether disclosure would be contrary to the public interest – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Freedom of Information Act 1982 (Cth) s 3, s 3A, s 4, s 11, s 11A, s 11B, s 22, s 27A, s 33, s 37, s47E, s 47F, s 53C, s 54L, s 55G, s 55K, s 60AA, s 64, s 93(A)
Migration Act 1958 (Cth) s 195A
Migration Amendment (Detention Arrangements) Act 2005 (Cth)
Privacy Act 1988 (Cth) s 2A, s 6, s 40(2)
Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth)
Privacy Amendment (Re-identification Offence) Bill 2016 (Cth)
Privacy and Personal Information Protection Act 1998 (NSW)
CASES
‘AK’ and Department of Finance and Deregulation [2013] AICmr 64
Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437
CNS v Transport for NSW [2018] NSWCATAD 40
Colakovski v Australian Telecommunications Corporation [1991] 23 ALD 1
D v National Society for the Protection of Children [1977] 2 WLR 201
Director of Public Prosecutions v Smith [1991] 1 VR 63
‘FG’ and National Archives of Australia [2015] AICmr 26 at [47]
Johansen v The City Mutual Society Ltd BC0500026 (15 December 1904)
Jonathan Laird and Department of Defence [2014] AICmr 144
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Another [1995] 128 ALR 238
Sinclair v Mining Warden at Maryborough [1975] 132 CLR 473
The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36 [2012] 246 CLR 379
Thomas; Secretary, Department of Defence and (Freedom of Information) [2018] AATA 604 (21 March 2018)
Sankey v Whitlam and Others [1978] 53 ALJR 11
Wiseman v Commonwealth Full Federal Court BC 8908428
SECONDARY MATERIALS
Adam Tanner: Our Bodies, Our Data (Beacon Press, Boston, 2017)
Australian Border Force: Immigration Detention and Community Statistics Summary (30 June 2015)
Australian Law Reform Commission: For Your Information – Australian Privacy Law and Practice (2008)
Explanatory Memorandum to the Migration Amendment (Detention Arrangements) Bill 2005, 21 June 2005
Explanatory Memorandum to the Privacy Amendment (Enhancing Privacy Protection) Bill 2012 (Cth)
Latanya Sweeney: “Uniqueness of Simple Demographics in the US population” Technical report LIDAP-WP4, Data Privacy Laboratory, School of Computer Science, Carnegie Mellon University, Pittsburgh, 200)
Office of the Australian Information Commissioner: “What is Personal information?” (May 2017)
Office of the Australian Information Commissioner: “De-identification and the Privacy Act” (March 2018)
Office of the Australian Information Commissioner: “Publication of MBS/PBS data – Commissioner initiated investigation report”, (23 March 2018)
Samuel Warren and Louis Brandeis: “The Right to Privacy”, 4 Harvard L.R. 193 (15 December 1890)
Second Reading Speech, Migration Amendment (Detention Arrangements) Bill 2005House of Representatives (21 June 2005), Minister for Citizenship and Multicultural Affairs (Hon Peter McGauran MP) on behalf of the Minister for Immigration (Senator Hon Amanda Vanstone)
Second Reading Speech, Privacy Amendment (Re-identification Offence) Bill 2016, Senate (12 October 2016), Attorney-General (Senator Hon George Brandis)
Senate Standing Committee on Constitutional and Legal Affairs: Freedom of Information – Report on the Freedom of Information Bill 1978 and aspects of the Archives Bill 1978 (AGPS, Canberra, 1979)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
3 April 2018
The Question

This is an appeal against a decision of the Office of the Australian Information Commissioner (OAIC) to grant only limited access to certain documents of the Department of Immigration and Border Protection (the Department)[1] which relate to visas granted personally by the Minister under s 195A of the Migration Act 1958 (Cth). The Applicant seeks wider access to the documents.
[1] Now the Department of Home Affairs
The Answer
For the reasons stated below the decision of the OAIC is affirmed.
RELEVANT HISTORY OF THE PROCEEDINGS TO DATE
To demonstrate how we have reached this particular sharp end of proceedings it is useful to lay out, briefly, the steps taken by the various parties.
On 23 December 2015 the Applicant[2] made a broad-scale request to the Department for access to certain documents related to the exercise of personal ministerial discretion under s 195A of the Migration Act. Not unreasonably, the initial reaction of the Department was to the effect that this was casting the net far too wide to be practical for the Department to respond.
[2] Specifically Ms Lisa Martin, a journalist employed by Australian Associated Press P/L (hereinafter the Applicant)
The form of this initial application should be quoted in full:
“There is a discrepancy between the number of Exercise of Ministerial discretion under Section 195A of the Migration Act 1958 and statements tabled in federal parliament on September 7 2015, against the number actually granted for the first six months of 2015.
I’m writing to request documents/correspondence/emails related to any Exercise of Ministerial discretion under Section 195A of the Migration Act 1958 from the aforementioned six month period that have not had statements tabled in parliament on September 7.
I am also requesting documents, correspondence and emails related to the decision to withhold this information.”
As a result, discussions then took place between the parties which resulted (on 2 May 2016) in the Applicant refining her request so that she now sought: “Ministerial submissions involving individuals that were seeking to work in Australia as a nanny or Au Pair.” Furthermore the request was confined to the period between 17 June 2015 and 30 November 2015. This served to focus the request and to make it practical for the Department to address.
However it seems to me that the description of these documents now being sought as “Ministerial submissions involving individuals…” significantly changed the character of what was being sought. Apart from confining the documents to formal “submissions” to the Minister which originate from within his Department it appears to exclude externally generated correspondence and emails which were encompassed in the initial request. Nevertheless it was upon this basis that the processing of the Freedom of Information (FOI) request proceeded.
On 27 May 2016 the Department responded stating that they had identified two documents which met the criteria outlined by the Applicant. However the Department decided that both documents were exempt in full. In making this decision the Department relied upon the “personal privacy” exemption outlined in s 47F of the Freedom of Information Act 1982 (Cth) (FOIA). Furthermore the Department asserted that the public interest which must be applied before any such refusal can be made (FOIA s 11A(5)) did not over-ride this decision.[3] This information was communicated to the Applicant by letter of 1 June 2016[4]. The letter setting out the decision attached a schedule of the two documents which had been identified and for which a total exemption was claimed.
[3] T documents at 22-24
[4] T documents at 19
Unsurprisingly, the Applicant was dissatisfied with this response and sought an Information Commissioner review of the decision (FOIA s 54L). This action resulted in discussions between the OIAC and the Department and gave the Department the opportunity to undertake a further internal review of its original decision (FOIA s 55G(1)) to determine if there was a possibility that access to the relevant documents may be granted.
This led to a reconsideration on the part of the Department and on 6 September 2016 the Department issued a further decision giving the Applicant access to the two documents in part while continuing to withhold other parts on “personal privacy” grounds.
The Applicant continued to be dissatisfied and requested the Australian Information Commissioner to review the decision of 1 June[5] as varied on 6 September. The Commissioner issued his ruling on 17 May 2017 in which he set aside the decision of the Department under s 55K of the FOIA.
[5] The Information Commissioner’s finding: Australian Associated Press Pty Ltd and Department of Immigration and Border Protection (Freedom of Information) AICmr45 (17 May 2017) refers to the initial decision as a decision of “1 June 2016”, T documents at 3. The decision was actually made on 27 May 2016 but communicated to the Applicant by letter dated 1 June 2016,T documents at 24
His decision, which it is necessary to set out in full was as follows:
2. I substitute my decision that:
·the visa documents are exempt under s 47F of the FOI Act
·the first three paragraphs of the ministerial submission in document 1 and the first five paragraphs of the ministerial submission in document 2 are exempt under s 47F
·the names, dates of birth and client identity numbers of the individuals applying for visas in the ministerial submissions and decision instruments are exempt under s 47F, and
·the remaining material in those documents that the Department found to be exempt is not exempt.
3. The Department must now provide the applicant with an edited copy of the ministerial submissions and decision instruments, edited under s 22 of the FOI Act only to the extent necessary to delete exempt material.
It is from that decision of the Information Commissioner, not the decisions of the Department,[6] that the Applicant now comes before the Tribunal seeking that the decision be overturned and that they be granted more comprehensive access to the two documents.
[6] See Thomas; Secretary, Department of Defence and (Freedom of Information) [2018] AATA 604 (21 March 2018)
What exactly is being sought?
In the Information Commissioner’s determination there appears a list of 12 items which might be separately identified if access were to be granted in full. They are as follows:
·the names of the individuals applying for visas
·the country of origin of the third parties
·the length of time that an applicant has resided in Australia
·names and dates of birth of the applicant's family members and supporting children
·the occupation of the visa applicants
·particulars of applicant's discussions with Australian border officers
·precise personal information obtained during interviews by Australian border officers relating to applicants' work status or volunteer work status
·particulars of the applicant's personal financial affairs
·particular applicant's visa history and identification numbers in relation to their application
·the geographic area in which applicants live in Australia
·the signatures of the authors of the documents
·client identity file numbers.[7]
[7] T documents at 5 and 6
In their submission to me, the Applicant sought to narrow this list and requested that they be granted access to only six of the original 12 items, specifically:
·the length of time that an applicant has resided in Australia
·the occupation of the visa applicants
·particulars of applicant's discussions with Australian border officers
·precise personal information obtained during interviews by Australian border officers relating to applicants' work status or volunteer work status
·particulars of the applicant's personal financial affairs
·the geographic area in which applicants live in Australia.
This is confirmed by reference to both the Applicant’s Statement of Facts, Issues and Contentions and the relevant passage in the Transcript which reads as follows:
“SENIOR MEMBER: So I will just – so you’re after length of time, the occupation, the discussions with the border officials, personal information obtained during those interviews, applicant’s personal financial affairs, yes, and geographic area.
MS PALANIAPPAN: Yes. And these are history to the extent it doesn’t cover the identification numbers.”[8]
[8] Transcript at 10-11. Ms Palaniappan is counsel for the Applicant.
The two documents
It is apparent from the material already released to the Applicant that each of the two documents in question consists of a total of 41 pages.[9] Extracts of the two documents occur at several places throughout the Tribunal documents (T documents) but made be identified as follows:
·A document dated 17 June 2015 (ref MS 15-016866)[10]
·A document dated 1 November 2015 (ref MS 15-027915)[11]
[9] This is because the released documents show, at the footer “ Page X of 41”
[10] T documents at 55-57; 58-62 and 87-91
[11] T documents at 52-54; 63-69 and 92-98
The material before the Tribunal
The Tribunal had before it the T-documents which comprise of all the relevant background documents, records of proceedings, the OAIC decision and copies of legislation etc.
In addition to these there were two schedules appended to the Applicant’s Statement of Issues, Facts and Contentions:
·(Exhibit A1) a series of seven press articles over 27 pages dealing with various aspects of the employment and payment of au pairs in Australia,
·(Exhibit A2) 90 pages which I understand are copies of statements made to the Parliament by the Minister, tabled in the Parliament[12] between July and December 2015, and provided under section 195A(8) of the Migration Act.
[12] House of Representatives: Votes and Proceedings no. 179, 1 March 2016 at 1964
A further schedule of documents which relates to the deletions in the documents already provided to the Applicant with the corresponding page numbers of the T documents (Exhibit R1) was provided by the Respondent.
In addition an Affidavit was placed in evidence by the Respondent (Exhibit R2). This relates to processes which were undertaken in accordance with s 60AA(2) of the FOIA. This section obliges any authority which is proposing to release documents under FOI to contact “relevant third parties” about the matter under consideration and seek their input to the decision making process. When the potential release of a document may affect the “personal privacy” of an individual (s 27A FOIA) then they must be consulted during the internal review process (s 53C FOIA) by the authority holding the document and their views sought. In other words, do they object or not to the release of a document which might reveal personal details about them. The authority in question must take their views into account (they are not binding) when finalising their decision on an FOI application.
The DIBP did this in preparation for the hearing before this Tribunal. On 5 October 2017 it wrote (by email) to the two people who were the subject of the two visa applications here in issue. One of them replied on the same day stating:
“Thank you for your email.
I would like to affirm the decision to withhold any personal information about me and I’ll be happy to be kept advised of the situation.
I only have one question, if I was to holiday in Australia again would this cause any issue?”[13]
[13] Affidavit of Brooke Marie Griffin on behalf of Respondent, Exhibit R2. .
In the T-documents there is a copy of a submission made by the Applicant to the OAIC in support of their claim for an external review[14]. One part of that document was redacted on the basis that it was “confidential”. However the Applicant wished me to have a copy of that redacted document (Exhibit A3) and it was tendered on the basis that access to it was restricted to the parties alone[15]. I accepted it on that basis and made a confidentiality order to cover it.[16]
[14] T documents at 78
[15] Transcript at 3-4
[16] Administrative Appeals Tribunal Act 1975 (Cth) s 35(4)(b)(ii)
I was encouraged by the Applicant to request full un-redacted copies of the two documents in question using the powers available to the Tribunal under s 64(1) of the FOIA[17], however these had already been provided to me, at my request by the Department prior to the hearing. In relation to these documents I made a confidentiality order to restrict access to the Tribunal alone.
[17] Transcript at 4
The Department put into evidence a document from its website Australian Border Force: Immigration Detention and Community Statistics Summary (30 June 2015) (Exhibit R3).
Finally I had the Statements of Issues, Facts and Contentions from both parties.
The task before the Tribunal
This appeal challenges the Tribunal to navigate, as best it can, between the Scylla and Charybdis of two potentially conflicting but significant principles of public policy. They are
·the right of people to access the maximum degree of information about the workings of their government, and
·the right of individuals to secure the maximum degree of protection for their personal privacy.
The public right to know and the individual right to be unknown do not admit of easy reconciliation.
THE LEGAL AND ADMINISTRATIVE CONTEXT
There are several pieces of legislation which need to be considered to establish the totality of the framework within which the Tribunal is attempting to resolve the issues in question. The Freedom of Information Act provides the framework within which the FOI request must be determined; the Privacy Act 1988 (Cth) establishes key definitions related to the material in issue and the Migration Act both empowers Minister to act and imposes obligations on him about how he must report his actions.
Freedom of Information Act 1982
The issue in question must be decided in terms of the provisions of the Freedom of Information Act and so it is necessary to set out both what that Act seeks to achieve and how it operates to give effect to those aspirations.
The FOIA states its objectives as follows:
Section 3:
Objects--general
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government's activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
Section 3A
Objects--information or documents otherwise accessible
Scope
(1) This section applies if a Minister, or an officer of an agency, has the power to publish, or give access to, information or a document (including an exempt document) apart from under this Act.
Publication and access powers not limited
(2) The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power:
(a) in the case of the power to publish the information or document--despite any restriction on the publication of the information or document under this Act; and
(b) in the case of the power to give access to the information or document--whether or not access to the information or document has been requested under section 15.

The FOIA sets up a scheme outlined in section 11:
11 Right of access
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person’s right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency’s or Minister’s belief as to what are his or her reasons for seeking access.
There are two important issues to note here: the right of access is accorded to “every person” without qualification and secondly the motivation for that information being sought is not a relevant matter when access decisions are being made.
Relating it to this particular application, the way in which documents may be accessed can be outlined as follows:
1. An application must be made in a specified form and may require payment of a fee
2. The Agency in possession of the document must identify the document(s) to which the application relates and confirm that they are in its possession[18]
3. The Agency must then decide if the document(s) in question are exempt under any provisions of the FOIA
4. There may be charges levied in relation to meeting the cost of identifying or copying the documents in question. These charges may also be waived.
5. If a decision is made not to release a document, or only to release parts of a document, the Act provides for various review and appeal mechanisms.
In this instance, as outlined above, the decision in question allows for the partial release of two documents. The grounds stated for withholding other parts are that
·Release would be prejudicial to the “personal privacy” rights of certain individuals, the subjects of the visa grants, and
·It would be contrary to the public interest to do so because protection of those privacy rights is a public good.
The privacy exemption, upon which both the Department at first instance and the Information Commissioner in the decision under review rely, is set out in s 47F. The relevant parts of that section (for this application) are:
47F Public interest conditional exemptions—personal privacy
(1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).
(2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:
(a) the extent to which the information is well known;
(b) 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;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
Given this, the Tribunal must work its way through the following questions:
1. Is the information sought “personal information” hence “conditionally exempt”?
2. If so, would its disclosure be “unreasonable”?
3. Is the information otherwise “well known” or available from other “publicly accessible sources”?
4. If the information is personal information and if its disclosure would be unreasonable, is there any overriding public interest which would nevertheless mitigate in favour of its disclosure?
Obviously the first question to be resolved is what exactly is “personal information”?
Consulting the FOIA is singularly unhelpful. It states (s 4):
personal information has the same meaning as in the Privacy Act 1988
Privacy Act 1988
The definition of “personal information” is given in the Privacy Act at s 6
(6)(1) personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
Because a great deal turns on the matter of what is meant by “reasonably identifiable” in this definition it is necessary to say something more about it.
This new definition[19] of “personal privacy” was introduced into the 1988 Act by amendment through the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth).
[19] The original definition in the 1988 Act was: “"personal information" means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion”
The Explanatory Memorandum to the Bill outlines the reasons for this change.
The definition of ‘personal information’ has been modified to implement the Government’s acceptance of ALRC Recommendation 6-1.[20]
It is important that this key definition be sufficiently flexible and technology-neutral to encompass changes in the way that information that identifies an individual is collected and handled. The ALRC’s recommended definition continues to allow this approach and also brings the definition in line with international standards and precedents.
The proposed definition does not significantly change the scope of what is considered to be personal information. The application of ‘reasonably identifiable’ ensures the definition continues to be based on factors which are relevant to the context and circumstances in which the information is collected and held.
Consistent with the Government’s response to ALRC Recommendation 6-2, the Government encourages the development and publication of appropriate guidance by the OAIC about the meaning of ‘identified or reasonably identifiable’. This will be useful in assisting organisations, agencies and individuals to understand the application of the new definition, especially given the contextual nature of the definition.
[20] Australian Law Reform Commission: For Your Information – Australian Privacy Law and Practice (2008)
Two things are important here. The first is that the issue of “reasonably identified” or “reasonably identifiable” is to be determined in a way which is “relevant to the context and circumstances in which the information is collected and held”.
The second is to note that the Information Commissioner has developed and published guidelines on “What is personal information?” in which it states:
“The concept of ‘personal information’ is broad, and in most cases, whether or not information is personal information will be a straightforward question. However in some cases it may not be as clear, and the answer will depend on the context and the circumstances.”[21]
[21] OAIC: “What is Personal information?” (May 2017) p 3
Consideration of matters arising under the FOIA and the Privacy Act are not in themselves sufficient to describe the legal context in which this matter must be decided.
Migration Act 1958
The material sought by the Applicant arises as a result of decisions made by the Minister under the very specific provisions of s 195A of the Migration Act which must now be considered.
This section was added to the Migration Act by passage of the Migration Amendment (Detention Arrangements) Act 2005 (Cth).
– Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
Tabling of information relating to the granting of visas
(6) If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):
(a) states that the Minister has granted a visa under this section; and
(b) sets out the Minister's reasons for granting the visa, referring in particular to the Minister's reasons for thinking that the grant is in the public interest.
(7) A statement under subsection (6) in relation to a decision to grant a visa is not to include:
(a) the name of the person to whom the visa is granted; or
(b) any information that may identify the person to whom the visa is granted; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa--the name of that other person or any information that may identify that other person.
(8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year--1 July in that year; or
(b) if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year--1 January in the following year.
Once the Minister has decided to intervene and grant a visa to the detainee there are a variety of such visas which may be granted. For example in the bundle of 90 documents submitted as Exhibit A2 there are details of the grant of Bridging E (subclass 050); Humanitarian Stay (Temporary) (subclass 499); Subclass 050 Bridging (General); Removal Pending Bridging (subclass 070); Bridging (Class WE); Temporary Protection (subclass 785); Visitor (subclass 600); Resident Return (BB-155); and Former Resident (subclass 151) visas.
Similarly some of these documents reveal not just grants to individuals but also to groups of Illegal Maritime Arrivals ranging in number from 2 to 64.
Each visa is also considered in terms of whether or not conditions are to be imposed, most frequently Condition 8101 – prohibition of work.
In one of the specific cases before the Tribunal (MS15-207915), this individual is identified as being of “high risk” in terms of being likely to work (T documents – at 65 and 94) and the documents show that following this advice the Minister imposed the 8101 condition (T documents at 63 and 92).
This particular matter was the subject of some discussion before the Tribunal with the Applicant arguing that there was an exposure of financial risk involved which would justify release of more information on public interest grounds.
MS PALANIAPPAN: If I could just take you to some specific references in one of these two documents that, in my submission, bolster that, and perhaps for slightly different reasons from what I’ve been submitting already, but at page 94.
SENIOR MEMBER: This is the high risk submission.
MS PALANIAPPAN: Yes, exactly; exactly. I mean that in itself would justify disclosure of what factors were relevant to the grant of a visa when that grant was determined to be of high risk, and relatedly on that same page, if you look to paragraph 16 at the bottom, under “Financial implications”, it is stated that:
There is a risk that removal costs will no longer by met by the airline and that they will instead fall on the Department. In the time available we are unable to establish the extent of any further liability which may result from a decision to overturn or defer the removal.
And so not only was this a decision of high risk, but there were also financial ramifications and that would go to the public expenditure question of the public interest.
SENIOR MEMBER: Prima facie that looks like an attempt by the minister to project the revenue, doesn’t it?
MS PALANIAPPAN: Perhaps, but we might know if we had the information.“[22]
[22] Transcript at 22-23
I appreciate the point being made by the Applicant but I give it little weight. The risk, such as there is, is mitigated by the Ministerial imposition of conditions, is only short-term and relates to a single individual (or two at the most).
The Applicant urged upon me a particular approach to and interpretation of the Minister’s powers and responsibilities under this section of the Act. In their Statement of Issues, Facts and Contentions (at para 32) they contend:
“…the Second Reading Speech makes it clear that the overriding purpose of the Migration Amendment (Detention Arrangements) Act 2005 is children and families in detention.”
Further (at para 33):
“Consistent with the above, the applicant submits that ministerial discretion under section 195A is typically only enlivened in cases of clear injustice and anomalies in the visa process.”
Again (at para 35):
“…the applicant submits that it is highly irregular for the minister to become involved in the exercise of his Ministerial discretion under s 195A to grant a short-term Visitor or Tourist visa for a nanny or au pair.”
It is this claim, namely that the Minister’s powers should be read as somehow more limited than the amendment seems to suggest and that as a result, wider use of them may constitute some form of “irregular” behaviour, which lies at the heart of the rationale for the application.
In the hearing, the applicant pressed a version of this point:
MS PALANIAPPAN: The first is as the tribunal pointed out earlier, the power of the Minister under section 195A is not a limited power. But in my submission that broad and largely unfettered discretion only serves to increase the public interest in terms of ascertaining how it was exercised in particular in this case, and that that lack of transparency and accountability squarely sifts the focus from the Minister's exercise of the discretion under that section and what the Minister does or does not table before parliament to the FOI Act, the purpose of which is to inform public participation in government processes.[23]
[23] Transcript at page 24
For the reasons outlined below this is an interpretation of the section which I cannot accept.
Analysis must start with the Second Reading Speech which was delivered in the House of Representatives on 21 June 2005 by the Minister for Citizenship and Multicultural Affairs (Hon Peter McGauran MP) on behalf of the then Minister for Immigration (Senator Hon Amanda Vanstone) stating:
“On 17 June the Prime Minister announced a number of changes the government is making to migration law and the handling of people in immigration detention. The Migration Amendment (Detention Arrangements) Bill 2005, which I now introduce into the House only four days later, is landmark legislation and far-reaching in both its scope and importance.”
The Minister concluded his remarks:
“In summary, the amendments made by this bill allow greater flexibility in tailoring detention arrangements that are appropriate to individual circumstances, or, where appropriate, allowing release from detention. They also provide for formal independent monitoring of long-term detainees by the Commonwealth Ombudsman. These changes represent a significant milestone in the development of migration law in Australia.” (p 57)
I turn next to the relevant parts of the Explanatory Memorandum[24] presented with the Bill.
[24] Explanatory Memorandum Migration Amendment (Detention Arrangements) Bill 2005, 21 June 2005
The Explanatory Memorandum makes it clear that the powers under s 195A are “new” powers and that they relate only to people who are in detention as a result of the operation of s 189 of the Act. In this instance this covers “an unlawful non-citizen in the Migration Zone”.
It explains that the visa grant must be made by the Minister personally if he/she considers that to be in the public interest; that it is not necessary for the person in question to apply and while requests for exercise of this power may be made to the Minister, “the Minister is not under any duty or obligation to take into account such requests.”
Finally the Memorandum elaborates on the mechanisms for reporting such decisions to Parliament noting the obligation to protect the personal privacy of visa grantees (obligatory) and the Minister’s right to extend this protection to “another person connected with the grant of a visa under this section” (discretionary).
I conclude from the above that the legislation was intended to give the Minister “far reaching” powers, to be exercised with “flexibility” and covering “arrangements that are tailored to individual circumstances.” I see no basis upon which to read down or narrow the Minister’s powers or to justify the assertion that departure from dealing with those matters which constitute a simple majority of cases in any way amounts to what the Applicant characterizes as “irregular” behaviour.
That said I think it is important to expand somewhat or certain sub-clauses of the section.
Subsection (6) provides that the Minister must provide to both the House of Representatives and the Senate details of the visas which he/she has granted and the reasons for so doing. Subsection (8) provides that such notifications must be made at particular times, twice in each calendar year.
It is true that the Minister’s statement of reasons, which must “[refer] in particular to the Minister’s reasons for thinking the grant is in the public interest” have become essentially formulaic and in fact reveal almost nothing of the Minister’s thinking related to each individual case – there being an obligation to treat each case separately and upon its own individual merits. In essence the formula has reduced this reporting to Parliament as a statement to the effect: “the Minister deems it to be in the public interest because the Minister considers it to be in the public interest.”
Indeed 66 of the 90 Statements presented to the Tribunal use the set formula: “In the circumstances I have decided that as a discretionary and humanitarian act to an individual with ongoing needs, it is in the interests of Australia as a humane and generous society to grant this person…” and there follows the specific visa identification.
This reporting formula tells the Parliament essentially nothing more than the number of such visas which have been granted in the previous six months. However the legislation in effect imposes no greater obligation than that on the Minister.
Subsection (7) is of critical importance to these proceedings. It establishes that it is the clear intention of the Parliament to ensure that certain information is “not” provided in these Ministerial reports. This includes:
· the name of the person to whom the visa is granted; or
· any information that may identify the person to whom the visa is granted.
Furthermore as it is likely that in many if not most instances there will be third parties involved – perhaps family members, friends, sponsors, employers, referees, petitioners etc. the legislation goes on to grant them similar privacy protection (7(c)) if the Minister considers this to be in the public interest.
It is thus apparent that the whole scheme of section 195A is to:
(a)Provide accountability to the Parliament through the Ministerial reporting obligations, and
(b)Provide a significant degree of privacy protection for both the visa grantees and those associated with them.

It thus seems to me that the Applicant faces a particularly burdensome task in establishing that information which may have the effect of defeating these privacy protections should be released given that the clear intention of the Parliament is to the contrary unless some public interest test is met.
However that public interest test applies only to the release of the details of the third parties. There is no such qualification against the absolute prohibition of releasing identifying details about the visa grantees as set out in subsections 7(a) and (b).
Nevertheless, the position of the Applicant is that they seek access to all the details outlined in para 13 above which are to be discovered in the two identified documents.
RETURNING TO THE QUESTIONS FOR THE TRIBUNAL
Is the material sought “personal information”?
Yes. It is information about a person who is reasonably identifiable.
I believe that if the information sought were granted it would be possible and practical for the Applicant, or any other person to identify the individuals who were subjects of the visa grant.
I think the Applicant admitted as much in the hearing. The relevant part of the Transcript reads:
SENIOR MEMBER: No. I think that the – I do not think that I have, in relation to that – I think the other points that you have made in relation to seeking to go through the checklist is an appropriate way of dealing with matters. I have got no arguments that I want to raise with you there. I do want to raise with the applicant, if I can go back to that list of matters which you are specifically speaking. If we go to the T documents, at page 6. This is part of the Commissioner’s view and let me take you to the items that you do want. Okay?
So, again, as I summarise, length of time, the occupation, discussions with the border officers, precise information obtained regarding work status or volunteers, financial affairs and the geographic area. I am correct in assuming those?
MS PALANIAPPAN: Yes.
SENIOR MEMBER: So, here is the case of Mr P. He has resided in Australia for 15 months. He is a registered nurse. At the border, he told the officers that he was intending to work on aboriginal infectious diseases in Alice Springs. That when he was there, he was going to stay at the Sundowner Motel and that he had previously been a taxpayer in Australia and was looking to earn some money during the course of his stay, if he was permitted to enter the country. Do you say to me that I cannot identify the individual from that list of information that you have sought?
MS PALANIAPPAN: No, I think that is a reasonably identifiable individual. I am just thinking about whether the private – - -
SENIOR MEMBER: I mean, if I take you particularly:
Precise, personal information obtained during interviews by Australian border officers relating to work status, or volunteer work status, particular of applicant’s discussion with Australian border officers.
Now, the information that is likely to be drawn out there, when you have got the details of the time that I have resided, the occupation, which may an unusual occupation or a limited occupation and the geographical area where I live, which might be a quite remote part of the world. Surely, you cannot be saying to me that that is not capable of being aggregated into a profile, which allows for the identification of the individual?
MS PALANIAPPAN: Probably right, as to the hypothetical. I feel like we are wagering here. But, if we removed from that matrix, the time period and the geographical area, there may be particular facts as to – that would go to the identification of that individual….”[25]
[25] Transcript at pages 32/3
If I take a look again at the six items which the Applicant agrees they want to extract from the documents:
·the length of time that an applicant has resided in Australia
·the occupation of the visa applicants
·particulars of applicant's discussions with Australian border officers
·precise personal information obtained during interviews by Australian border officers relating to applicants' work status or volunteer work status
·particulars of the applicant's personal financial affairs
·the geographic area in which applicants live in Australia
It seems clear to me that the aggregation of this material leads quite easily to a situation in which the individual is “reasonably identifiable”. It is thus “personal information”. As I said, I think the Applicant themselves virtually concedes so much.
Re-identification: a challenge to personal information protection
It does not take much to turn anonymised data into identifiable information.
The issue of the re-identification of data/information previously thought to be anonymised is one of the most lively areas of debate in the privacy community. It is generally being accepted that most ordinary, non-encrypted data is capable of re-identification if the will is strong enough and the tools are readily to hand.
In a notorious American example, MIT graduate student, Latanya Sweeny (who first came to attention when she identified the Governor of her home state of Massachusetts through publicly available health data) demonstrated that with just the birth date, ZIP code and gender, an analyst could identify as many as 87.1 percent of all Americans,[26] although other studies have reduced this figure to 63 percent.[27]
[26] Sweeney: “Uniqueness of Simple Demographics in the US population” Technical report LIDAP-WP4, Data Privacy Laboratory, School of Computer Science, Carnegie Mellon University, Pittsburgh, 2000). Adam Tanner: Our Bodies, Our Data (Beacon Press, Boston, 2017)
[27] Philippe Golle, “Revisiting the Uniqueness of Simple Demographics in the US population”, in WEPS ’06 Proceedings of the 5th ACM Workshop on Privacy in Electronic Society (NY: Association for Computing Machinery 2006)
The question of both will and practicality are important.
Although it might seem counterintuitive, in a recent decision by the Privacy Commissioner, it was held that the release of DNA sequences would, in the instance at hand, not constitute a breach of personal privacy. In Jonathan Laird and Department of Defence,[28] the applicant was seeking access to DNA sequences derived from bone samples taken from human remains exhumed on Christmas Island in 2006 by the Department of Defence which were assumed to be remains from a member of the crew of the ill-fated HMAS Sydney sunk in 1941 after its encounter with the German raider, the Kormorant.
[28] [2014] AICmr 144
A natural assumption would have been that possession of a DNA sequence could lead to easy identification of a person, bearing in mind that deceased persons are entitled to privacy protection under section 47F(1) of the FOIA.
However the Privacy Commissioner rejected this argument stating:
“While I believe that it might be possible to identify the individual using the sequencing information, in my view, doing so would be impractical for a reasonable member of the public. I believe the steps required to do so would be excessively time-consuming and costly.” (emphasis added) [at 16]
In other words, the Privacy Commissioner does not consider that requests for conditional exemption on privacy grounds can or should succeed on theoretical grounds alone, it requires that an element of practicality also be established.
In this instance the Commissioner held that: “DNA sequencing data does not meet the definition of personal information outlined in the Privacy Act, or therefore s 4 of the FOI Act.”[29]
[29] At [18]. FOIA s 47F(1) “A document is conditionally exempt if its disclosure under the Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).”
Concerns about the capacity of data to be subject to re-identification have led to legislative initiates at the Commonwealth level. In 2016 the then Attorney General introduced the Privacy Amendment (Re-identification Offence) Bill. In his second reading speech Senator Brandis stated:
“However, in a rapidly changing digital environment it is important to recognise that methods that were sufficient to de-identify data in the past may become susceptible to re-identification in the future.
Of considerable concern is the potential to re-identify personal information, particularly an individual’s sensitive personal information. Such re-identification has the potential to significantly affect an individual’s privacy and to undermine the benefits associated with the release of public sector datasets.”[30]
[30] Second Reading Speech, Privacy Amendment (Re-identification Offence) Bill 2016, Senate (12 October 2016), Attorney-General (Senator Hon George Brandis), Senate Hansard at 1643
The proposed legislation is somewhat limited in scope as to the nature of the data protected from re-identification and the legislation[31] is still pending in the Senate, so its final form cannot be ascertained. Nevertheless it is indicative of an increasing awareness at the legislative level that the issue of re-identification needs to be addressed.
[31] The legislation is restricted to re-identification of generally available public/public sector datasets
I have had occasion to review a recent significant decision of the NSW Civil and Administrative Tribunal which has found that aspects of the OPAL card system used by Transport NSW are in breach of the Privacy Principles contained in the Privacy and Personal Information Protection Act (NSW) in that it allows for the matching of travel details by OPAL card users with their personal identity. In effect a travel record was held to constitute “personal information” because of the ease with which it could be matched with an individual.[32]
[32] CNS v Transport for NSW [2018] NSWCATAD 40
Given that the Tribunal must make its determination at the time that the matter is before it,[33] and not (as is the case with some social security matters) retrospectively and based upon current information and evidence, I think it appropriate to add something further on the matter of re-identification.
[33] Administrative Appeals Tribunal Act s. 43. See also Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Late in September 2016, the Australian Information and Privacy Commissioner, acting on his own motion under s. 40(2) of the Privacy Act, opened an investigation into the release of MBS/PBS (Medical Benefits Scheme/Pharmaceutical Benefits Scheme) datasets which had been released by the Commonwealth Department of Health.[34] In announcing his findings on 29 March 2018, the Commissioner found that the Department had breached the Privacy Act because the:
“risk of re-identifying medical providers whose information was in the dataset was not sufficiently low, and that the Department’s processes for assessing the risks associated with publication were inadequate.”[35]
[34] Office of the Australian Information Commissioner: Publication of MBS/PBS data – Commissioner initiated investigation report (23 March 2018)
[35] Australian Information Commissioner: Press Release “Australian Information Commissioner and Privacy Commissioner’s investigation into published MBS/PBS dataset finalised”:
At the same time the Office of the Australian Information Commissioner issued new guidelines: De-identification and the Privacy Act.[36] The complete gamut of issues regarding de-identification need not detain me here, suffice to say that these Guidelines (and recalling that decision-makers are obliged to have regard to such guidelines), under the heading “When is a data subject ‘reasonably identifiable’?” states:
“… an individual will be reasonably identifiable (or a de-identification process will not have been successful) where:
·It is technically possible for re-identification to occur (whether from the information itself, or in combination with other information that may be available in the data access environment), and
·There is a reasonable likelihood of re-identification occurring.”
[36] Office of the Australian Information Commissioner: De-identification and the Privacy Act (March 2018)
I think this new set of Privacy Guidelines is directly apposite to this current determination.
It is technically possible for the visa grantees to be (re-)identified from the collection of associated material sought by the Applicant, and the whole purpose of the application would be nugatory were it not the applicant’s specific intention to do so. There would be no purpose in having the information otherwise.
I am thus reinforced in my conclusions on this point by the latest set of guidelines from the Information and Privacy Commissioner.
If, as I have decided, the information sought is “personal information” then it clearly attracts the conditional exemption provided for in s 47F(1) of the FOIA.
Given that, it is then necessary to determine, under s 47F(2) whether any disclosure of it would be “unreasonable”. Whereas the determination of whether or not information is “personal information” is essentially a matter of fact, what is “unreasonable” is a matter of judgement and balance where legitimate interests of full disclosure on the one hand and privacy protection on the other may contend.[37]
[37] Wiseman v Commonwealth Full Federal Court BC 8908428 page 4. Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437 at [51]-[52]
There are three sources of guidance on how the Tribunal should determine matters in accordance with the provisions of s. 11A(5) which requires release of documents unless this would be “contrary to the public interest”.
(a) Legislation
Section 11B provides guidance about how to deal with conditionally exempt documents to determine if their release would be, on balance, contrary to the public interest.
11B Public interest exemptions—factors
Scope
(1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public interest include 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.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(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.
It is incumbent on the Tribunal to work its way through this check-list of relevant factors and ensure that it ignores the irrelevant ones.
This is made clear in the Tribunal’s recent determination in Thomas:
“As used in s 11A(5) of the FOI Act, wide though the expression “public interest” is, it is confined by more than just the subject matter, scope and purpose of the FOI Act. So much is made explicit by the catalogue in s 11B of factors favouring access and of irrelevant factors. In listing, in s 11B(3), factors favouring access, the Parliament has made explicit factors which might in any event have permissibly been regarded as relevant to take into account in a public interest evaluation, such is the width of that expression. What s 11B(3) has done is to convert the permissible into the mandatory in relation to considerations to take into account. Equally and again having regard to what is generally the width of the expression “public interest”, s 11B(4) has made factors which might otherwise have been regarded as permissible to take into account irrelevant considerations.”[38]
[38] Thomas; Secretary, Department of Defence and (Freedom of Information) [2018] AATA 604 at [66]
In my judgement, while there may be some comfort for the Applicant in item (a) of s 11B(3), any degree of that is overborn by the principle that the protection of personal privacy is assumed to be the default position and thus the onus lies with the Applicant to demonstrate that the public interest is so strong and compelling that it negates this paramountcy. In my opinion the Applicant has failed to do so.
As to the question of the extent to which this is a matter of “public importance” (s.11B(3)(b)), again the onus lies with the Applicant to demonstrate this. “Public interest” or “political interest” is not the same as “public importance” and although the Applicant has sought to link this with suggestions of ministerial impropriety (which of course would be a matter of “public importance”) this has been done principally by assertion or inference and no credible evidence has been adduced or presented to the Tribunal to justify such a finding. Hence I do not find that any “public importance” test is satisfied.
I have dealt with the revenue question (s.11B(3)(c)) at para [53] above, and s.11B(3)(d) is not relevant.
I have paid no regard to matters listed in s 11B(4).
(b) Judicial Authority
In determining this matter, the Courts have provided guidance as to the factors which must be given consideration. They include:
·the nature, age and current relevance of the information
·whether the information is well known or available from other public sources
·any detriment that disclosure may cause to the person to whom the information relates
·any opposition to disclosure expressed or likely to be held by that person
·the circumstances of an agency’s collection and use of the information
·whether disclosure of the information might advance the public interest in government transparency and integrity
·the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act. [39]
[39] ‘FG’ and National Archives of Australia [2015] AICmr 26 at [47]
Applying these tests I reach the following conclusions:
1.The information is several years old however it may continue to be currently relevant. As I have noted above [22] one of the visa grantees when asked her opinion on the potential release of this material expressed a concern about its potential prejudice to her further potential travel to Australia at some time in the future. The visa grantees are most likely to have left Australia by this stage, although they are still entitled to protection of their privacy. In their Statement of Issues, Facts and Contentions (at 19(d)) the Applicant takes no issue with this. However the Respondent adds a further point with which I agree namely that the fact that the individual was, at some stage, in immigration detention (otherwise they would not have been eligible for a visa under 195A) is clearly a fact of personal privacy and sensitivity.[40]
1. The information is not available from alternative sources.
2. A detriment may arise in relation to the exposure of the name of a person linked with an allegation that they had been the beneficiary of allegedly “irregular” treatment by the Minister.[41] Furthermore it is likely that the information would also disclose the name or details of the employer of the visa grantee. They have not been consulted about the potential release of such information and may find themselves linked, detrimentally, with the insinuations to which I have referred. The Applicant contends that such material “should not be considered sensitive personal information which should be afforded any protected status.”[42] I do not agree for the reason I have mentioned above. The same is likely to be true of details revealed about other family members, associates or local friends or sponsors of the visa applicants.
3. There is evidence before the Tribunal relating the objection of at least one of the parties to the release of their information.
4. The information was collected in a compulsory fashion by the Department and used for border protection activities. Even so, what information may have been volunteered to the Department would have been on the basis of a reasonable expectation that it would be kept confidential. Moreover it was collected under provisions of legislation which are generally assumed to require the information collected be treated confidentially.[43] The Applicant argues that their request serves to elucidate the “process” by which decisions are made[44], but this is already apparent on the basis of the material supplied to them in that only the names of the parties concerned have been redacted.
5. There may be some validity in the claim that transparency or integrity is enhanced but there is no basis for any suggestion of improper or irregular behaviour on the part of the Minister or the Department. Section 195A(8) is the legislative mechanism by which the questions of integrity and transparency are provided for through regular statutory reporting to both Houses of Parliament. The Departmental process is well established, open and transparent and further details are unlikely to enhance any public understanding of this. The decisions are reserved personally to the Minister (s. 195A(5)) and he is accountable to the Parliament.
6. I think it reasonable for me to presume that a media organisation, in seeking access to this material, and stating its reasons for doing so (although they are not in any way to be weighed against release), are doing so with the intention of giving the material obtained wide publicity and distribution.
(c) Office of Information Commissioner Guidelines

Section 93(A) of the FOIA authorises the Information and Privacy Commissioner to issue Guidelines which are binding on decision-makers when they exercise powers under the Act. Guidelines issued under the heading of “Conditional Exemptions” provide a further expansive list of matters to be considered when assessing the “public interest” related to the release of conditionally exempt documents. There are some eleven of these, but I do not think it necessary to recite all of them because they generally do no more than provide elaboration on particular examples which fall under each of the broad categories set out in s. 11B(3) of the Act which I have examined in detail. Furthermore none of them was specifically argued before me by the Applicant, nor it appears were they found necessary to be considered by the Privacy Commissioner in his own original decision.
I am loathe, however, to pass over a contention advanced by the Applicant which, if sustained would mitigate very strongly in finding that there might be a public interest which could override privacy considerations and lead to a determination to release the documents more fully.
The Public Interest
In their Statement of Issues, Facts and Contentions, the Applicant contends:
“26. There is a considerable public interest in exercises of ministerial discretion, particularly where an exercise of discretion appears to be irregular and outside the powers afforded to the minister by his or her office.
….
29. In the applicant’s view, the Released Documents released in response to the applicant’s FOI request reveal irregularities in the Minister’s intervention under section 195A of the Migration Act 1958 (Cth) in granting a visa to a foreign nanny or au pair.”
In the hearing Ms Palamiappan put this proposition:
“I’ll develop this further shortly, but to the extent that this exercise of ministerial discretion was irregular or perhaps even unusual is already raised as a concern by the nature of the documents requested, being in relation to moneys (sic)[45] or au pairs, then release of the information informing the public as to how that discretion was exercised would absolutely advance the public interest in government transparency and integrity. We have sided in support of our submission on that decision of AK[46] at paragraph 22(b).
The respondent attempts to distinguish AK, but the cracks [47](sic) of the submission is that a further understanding of any irregularity of a ministerial discretion would advance the public interest in government transparency and integrity, and the focus of this request is squarely on the role of the member of parliament and one of the highest order, and so in my submission AK squarely has relevance to these proceedings.”[48]
[45] Mistranscription – should read “nannies”
[46] ‘AK’ and Department of Finance and Deregulation [2013] AICmr 64
[47] Mistranscription – should read “crux”
[48] Transcript at page 16
Of course there is a significant public interest in ensuring good government and ensuring that sunlight is allowed to act as the best disinfectant in keeping government clean. This itself was recognised as a central justification for the introduction of freedom of information legislation in the first place. The Senate Standing Committee on Constitutional and Legal Affairs in its report Freedom of Information, which preceded the introduction of the original Freedom of Information Bill in 1978, was at pains to point this out.[49]
[49] Senate Standing Committee on Constitutional and Legal Affairs: Freedom of Information – report on the Freedom of Information Bill 978 and aspects of the Archives Bill 1978 (AGPS, Canberra, 1979) at paras 5.20 to 5.30
Exactly how far this slippery concept of “public interest” extends is a matter of endless and ongoing debate.
As Lord Hailsham said in 1977, “The categories of public interest are not closed”,[50] and as the High Court discussed at length in Sankey v Whitlam and Others[51] this concept evolves over time and changes with differing material facts and circumstances. It is term “of wide meaning and not readily delimited by precise boundaries.”[52]
[50] D v National Society for the Protection of Children [1977] 2 WLR 201 at 218-9
[51] [1978] 53 ALJR 11
[52] Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health and Another [1995] 128 ALR 238 per Lockhart J at 245
One thing however is clear; there is a difference between matters which are of interest to some members of the public and the public interest itself. Judicial authority on this point goes right back to the first High Court of Australia.[53] It was also recently considered by the High Court which in citing the judgement of Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning held that:
“It is well established that, when used in a statute, the expression ‘public interest’ imports a discretionary value judgement to be made by reference to undefined factual matters.”[54]
[53] Johansen v The City Mutual Society Ltd BC0500026 (15 December 1904) per Griffith CJ, Barton and O’Connor JJ. “Now in the present case, it is said that the matter is one of gravity, and involves a matter of public interest, but only in the sense, we are told, that the public has taken great interest in it. But that is not the meaning of the term as used in the cases.” (at1)
[54] The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; [2012] 246 CLR 379 at [42] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ
As stated by the Supreme Court of Victoria, “The interest is therefore the interest of the public and distinct from the interest of an individual or individuals.”[55]
[55] Director of Public Prosecutions v Smith [1991] 1 VR 63 at 76. Also Sinclair v Mining Warden at Maryborough [1975] 132 CLR 473 at p. 480 per Barwick CJ
As I have said, I do not accept that there is any prima facie basis upon which to build even a credible suggestion that the Minister has acted irregularly or improperly. In my value judgement such a suggestion is mere speculation and no basis for this Application to succeed on public interest grounds.
In the hearings I challenged the Applicant’s characterisation of AK:
SENIOR MEMBER: AK is about use of personal entitlements of the Member of Parliament at issue, isn’t it, here.
MS PALANIAPPAN: Yes.
SENIOR MEMBER: And it’s a question of non-compliance with government guidelines on parliamentary entitlements, so it goes to a specific breach of the statutory responsibility of the Member of Parliament to adhere to guidelines which are established for the use of parliamentary entitlements. It’s a very specific focus.
MS PALANIAPPAN: I accept that. I still submit that it can be analogous to this case and perhaps it’s convenient to go to this now, because of the nature of the power in section 195A…”[56]
[56] Transcript at page 16
In my discussion of the scope and operation of s. 195A (above) I have also stated my reasons for rejecting the characterisation placed on the Minister’s actions by the Applicant under that section.
For these reasons I give no weight to the argument that there is some overriding or overwhelming public interest to be served by releasing further information on the basis advanced in this particular line of argument. In fact I find that granting this access would “on balance, be contrary to the public interest.”[57]
[57] FOIA s 11A(5)
Unintended Consequences: Unraised
One of the items to which the Applicants sought access was, as I raised in the hearing:
Precise, personal information obtained during interviews by Australian border officers relating to work status, or volunteer work status, particular of applicant’s discussion with Australian border officers.[58]
[58] Transcript at 33
I have no doubt that this material would contain highly sensitive material, not just about the personal affairs of individuals, but equally about the operational methods of the Australian Border Force. Information about the sources of their information/intelligence; the methods by which individuals are selected for questioning/interception at the border; the nature of questions put to them in interrogation; search methods and the like would all be potentially revealed to the public, and indeed to those with malign intent.
Claims for exemption under sections such as s 33 (national security), s 37 (law enforcement and the protection of public safety) and s 47E (the operation of agencies) would potentially be enlivened, as I suspect would others.
However no objection to the request in question was raised on these grounds and so their consideration can have no bearing on my deliberative processes.
The subject’s right to privacy
The two people whose cases are those now subject to the Tribunal’s consideration are entitled to a presumption of a right of privacy – a right as Justice Brandeis famously expressed it, “to be left alone.”[59] There is no suggestion that they have done anything wrong and there is no public interest in their names and details being made known or becoming known.
[59] Samuel Warren and Louis Brandeis: “The Right to Privacy”, 4 Harvard L.R. 193 (15 December 1890) para 1
Although the Applicant specifically refrains from asking for their names and personal identities, I am satisfied that they would be “reasonably identified” (in a personal sense) were the material requested to be released. Identification or re-identification from the aggregation and cross-matching of the released information would be neither hard nor time-consuming nor expensive.
Privacy and the Public Interest
The protection of personal privacy is a matter which is clearly in the public interest. The enactment of the Privacy Act (with some similar legislative enactment in most Australian States and Territories) demonstrates the concerns for privacy protection from Australian legislatures.
The reference in the Privacy Act to Australia’s international obligations in relation to privacy is a rare example of legislative acknowledgement of wider international responsibilities in this area.[60]
[60] Privacy Act lists specific Objectives in s 2A including 2A(h): “to implement Australia’s international obligations in relation to privacy.”
The provision of a specific privacy exemption in the Freedom of Information Act constitutes clear recognition of the public interest in privacy protection.
CONCLUSION
Granting of access to the information sought by the Applicant would be granting access to “personal information” in a way which will make an individual “reasonably identifiable”.
Granting of such access would be contrary to the public interest.
The decision of the Information Commissioner is affirmed.

I certify that the preceding 138 (one hundred and thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM , Senior Member

..........................[sgd]..........................................
Associate
Dated: 3 April 2018

Date(s) of hearing: 1 March 2018

Counsel for the Applicant: S Palaniappan

Solicitors for the Applicant: N Austin, Addisons

Solicitors for the Respondent: B Griffin, Australian Government Solicitor

Date(s) of hearing:	1 March 2018
Counsel for the Applicant:	S Palaniappan
Solicitors for the Applicant:	N Austin, Addisons
Solicitors for the Respondent:	B Griffin, Australian Government Solicitor