Australian Conservation Foundation Incorporated and Secretary, Department of Climate Change, Energy, the Environment and Water (Freedom of information)

[2024] AATA 3210

Australian Conservation Foundation Incorporated and Secretary, Department of Climate Change, Energy, the Environment and Water (Freedom of information) [2024] AATA 3210 (12 August 2024)

Division:                  FREEDOM OF INFORMATION DIVISION

File Number:           2024/1900

Re:  Australian Conservation Foundation Incorporated

APPLICANT

And  Secretary, Department of Climate Change, Energy, the Environment and Water

RESPONDENT

DECISION

Tribunal:                  Deputy President Britten-Jones

Date:  12 August 2024

Place:  Melbourne

Pursuant to s 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Tribunal DIRECTS that until further order, the publication or other disclosure of:

1.the material that is redacted in grey in the following supplementary T-documents lodged by the respondent on 21 June 2024 under s 38AA of the AAT Act:

a.ST1 (page 74);

b.ST2 (page 75);

c.ST3 (page 77); and

d.ST6 (page 82).

be restricted except to the respondent and its legal representatives and members and staff of the Tribunal, and any person performing services for the Tribunal, acting in the course of their duties.

....................[SGD]...................

Deputy President Britten-Jones

Catchwords

INTERLOCUTORY APPLICATION – request for confidentiality order under section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth) – consideration of section 63(1) of the Freedom of Information Act 1982 (Cth) – disclosure of information that would, or could reasonably be expected to, cause damage to Australia’s international relations – request for confidentiality order granted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Freedom of Information Act 1982 (Cth)

REASONS FOR INTERLOCUTORY DECISION

Deputy President Britten-Jones 12 August 2024

1.The respondent requests a direction under s 35(4) of the Administrative Appeals Act 1975 (Cth) (AAT Act) restricting access to information included in supplementary T-documents filed by the respondent under s 38AA of the AAT Act on 21 June 2024. I have received written submissions from both parties.

2.In addition to s 35(4) of the AAT Act, the tribunal must have regard to s 63(1) of the Freedom of Information Act 1982 (Cth) (the FOI Act) and:

(a)avoid the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate – s 63(1)(a)(i); and

(b)give particular weight to the respondent’s submission that disclosure of the supplementary T-documents would, or could reasonably be expected to, cause

damage to the security, defence or international relations of the Commonwealth – s 63(1)(b)(i).

3.The respondent is currently excused from filing an unredacted copy of the supplementary T-documents because of the operation of s 37(1AF)(b) of the AAT Act which applies when, as here, the respondent has made a timely application for a confidentiality order under s 35(4).

4.The supplementary T-documents which are the subject of this confidentiality application relate to the respondent’s consultation with the Department of the Prime Minister and Cabinet and the Department of Foreign Affairs and Trade (together referred to as the Departments). The respondent emailed both of the Departments on 5 March 2020 seeking their views with respect to the request that had been made by the applicant under the FOI Act. The Departments responded by email on 11 March 2020 and 6 March 2020 respectively. These emails have been provided to the applicant with very minor redactions.

5.The emails from the Departments noted that they had reviewed the documents for the purpose of s 33 of the FOI Act. Both emails give particulars of the material in the documents in terms of damage arising to international relations. The names of the foreign countries are redacted together with the particulars of the material which reflects the material in the documents the subject of the FOI request.

6.Gaia Puleston deposed to an affidavit dated 1 August 2024 in support of the confidentiality application. She is the Branch Head of Strategic Partnerships in the International Climate and Energy Division of the Respondent’s department. Her experience is extensive and very relevant to international relations. In paragraphs 19 and 20 of her affidavit, Ms Puleston explains in significant detail how each of the redacted words or passages would reveal material that is claimed to be exempt (defined as Exempt Matter in paragraph 18) in the particular documents sought under the FOI Act. In paragraphs 22 to 45 of her affidavit, Ms Puleston explains in significant detail how the revelation of each of the redacted words or passages would impact, in terms of damage, Australia’s international relations; in particular, the likely offence to be taken by foreign countries. For the purposes of this confidentiality application, I accept the views expressed by Ms Puleston noting that under s 63(1)(b)(i) of the FOI Act I am to give particular weight to her submissions when determining whether to make an order under s 35(4) of the FOI Act. I note that the redactions are limited and allow

the applicant to understand the gist of the email communications. The redactions go no further than is necessary to protect the disclosure of information that is claimed to be Exempt Matter.

7.I have taken into account the preference for transparency and openness in Tribunal proceedings, but the Tribunal has an obligation under s 63 of the FOI Act to ensure non- disclosure of certain matters. I also note that this confidentiality application is being brought well in advance of the hearing of the substantive issue and that if the applicant wishes to reagitate its opposition at the hearing then it would be entitled to do so. In that regard, I note that I have not yet had access to the Exempt Matter in the documents sought under the FOI Act. If upon that material being provided to me, I have a different view then I will revisit the orders for confidentiality made today.

8.The Tribunal DIRECTS that pursuant to s 35(4) of the AAT Act, until further order, the publication or other disclosure of:

(a)the material that is redacted in grey in the following supplementary T-documents lodged by the respondent on 21 June 2024 under s 38AA of the AAT Act:

(i)ST1 (page 74);

(ii)ST2 (page 75);

(iii)ST3 (page 77); and

(iv)ST6 (page 82);

be restricted except to the respondent and its legal representatives and member and staff of the Tribunal, and any person performing services for the Tribunal acting in the course of their duties.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

..........[SGD]..........

Associate

Dated: 12 August 2024