Bachelard v Australian Federal Police - [2025] FCAFC 5

FEDERAL COURT OF AUSTRALIA
Bachelard v Australian Federal Police [2025] FCAFC 5

Appeal from: Bachelard and Australian Federal Police (Freedom of Information) [2024] AATA 312

File number(s): VID 258 of 2024

Judgment of: WIGNEY, THAWLEY AND MCDONALD JJ

Date of judgment: 3 February 2025

Catchwords: ADMINISTRATIVE LAW – Freedom of Information Act 1982 (Cth) (FOI Act) – request for access to three witness statements and a professional standards report arising from an investigation conducted under Part V of Australian Federal Police Act 1979 (Cth) – appeal from decision of Administrative Appeals Tribunal (Tribunal) under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) – Tribunal found that all documents sought by applicant were exempt or conditionally exempt under FOI Act – whether Tribunal misconstrued and/or misapplied s 37(1)(b) of FOI Act in finding that providers of witness statements were “confidential sources of information” – whether Tribunal erred in failing to consider whether disclosure of edited copies of statements and report, without disclosing a confidential source, was possible and reasonably practicable under s 22(1) of FOI Act – whether Tribunal erred in law in finding that witness statements were exempt documents under s 47E(c) and (d) in circumstances where respondent had not relied on those statutory provisions in relation to the statements – whether Tribunal erred in failing to consider whether disclosure of edited copies of statements and report, without disclosing personal information which it would be unreasonable to disclose, was possible and reasonably practicable under s 22(1) of FOI Act – whether Tribunal misconstrued and/or misapplied s 47F of FOI Act in finding that statements and report contained personal information which it would be unreasonable to disclose – whether Tribunal misconstrued and/or misapplied “public interest” test in s 11A(5) of FOI Act – whether Tribunal erred in finding that parts of report were irrelevant and outside scope of applicant’s request – appeal allowed – matter remitted to Administrative Review Tribunal for re-hearing.

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 44

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) Schedule 2, item 25(2)

Australian Federal Police Act 1979 (Cth) ss 4, 6, 8, 40ZA, 60A, Pt V

Freedom of Information Act 1982 (Cth) ss 3, 4, 11A, 15, 21, 22, 24, 24A, 27A, 31B, 32, 37, 47E, 47F, 54L, 57A, 58B, 58E, 60A, 61, 63

Veterans’ Entitlements Act 1986 (Cth) s 24

Cases cited:
Accident Compensation Commission v Croom [1991] 2 VR 322

Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101; [2004] FCAFC 237

Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11

Department of Health v Jephcott (1985) 8 FCR 85; [1985] FCA 536

Grant v Repatriation Commission (1999) 57 ALD 1; [1999] FCA 1629

Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92

Jorgensen v Australian Securities and Investments Commission (2004) 208 ALR 73; [2004] FCA 143

Korat v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 303 FCR 261; [2024] FCAFC 59

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Luizaich v United States 435 F Supp 31 (D Minn 1977)

Marks v Beyfus (1890) 25 QBD 494

Matthews v Chicory Marketing Board (Vict) (1938) 60 CLR 263

McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423; [2006] HCA 45

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29

Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26

Re Croom v Accident Compensation Commission (1989) 3 VAR 441

Roads and Traffic Authority (NSW) v Peak [2007] NSWCA 66

Roberts-Smith v Fairfax Publications Pty Ltd (No 41) [2023] FCA 555

Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667

Waterford v The Commonwealth (1987) 163 CLR 54

XYZ v Victoria Police (2010) 33 VAR 1; [2010] VCAT 255

Division: General Division

Registry: Victoria

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 302

Date of last submission/s: Applicant: 28 August 2024
Respondent: 9 September 2024

Date of hearing: 19 August 2024

Counsel for the Applicant: Mr EJ Batrouney

Solicitor for the Applicant: Thomson Geer

Counsel for the Respondent: Mr RC Knowles KC and Mr NDJ Swan

Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS

VID 258 of 2024

BETWEEN:
MICHAEL BACHELARD

Applicant

AND:
AUSTRALIAN FEDERAL POLICE

Respondent

ORDER MADE BY:

WIGNEY, THAWLEY AND MCDONALD JJ

DATE OF ORDER:

3 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Administrative Review Tribunal (differently constituted) to be determined in accordance with the law.
3.The respondent pay the applicant’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
WIGNEY J:

The applicant, Mr Michael Bachelard, is a journalist. He requested the respondent, the Australian Federal Police (AFP), to give him access to certain documents pursuant to s 15 of the Freedom of Information Act 1982 (Cth) (FOI Act). The documents specified in the request were statements of three identified persons and a report by “AFP professional standards” in respect of an identified subject-matter. The AFP identified four documents that fell within the scope of the request, however a delegate of the AFP decided to refuse access to all four documents in full on various grounds.
After unsuccessfully pursuing an internal review and a review by the Australian Information Commissioner, Mr Bachelard applied to the then Administrative Appeals Tribunal for a review of the AFP’s decision. The Tribunal affirmed the AFP’s decision to refuse access to the requested documents on various grounds, including that: the documents would disclose, or enable a person to ascertain, the existence or identity of a “confidential source of information … in relation to the enforcement or administration of the law” and were therefore exempt documents pursuant to s 37(1)(b) of the FOI Act; disclosure of the documents would, or could reasonably be expected to have “a substantial adverse effect on the management or assessment of personnel” by the AFP, or have a “substantial adverse effect on the proper and efficient conduct of the operations” of the AFP, and were therefore conditionally exempt pursuant to s 47E(c) and (d) of the FOI Act; disclosure of the documents would involve the “unreasonable disclosure of personal information about any person” and were therefore conditionally exempt pursuant to s 47F(1) of the FOI Act; and, in respect of the documents said to be conditionally exempt, access to the documents would, on balance, be contrary to the public interest pursuant to s 11A(5) of the FOI Act.
Mr Bachelard appealed to this Court from the Tribunal’s decision on a question of law pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). He identified several questions of law and contended that the Tribunal made several errors of law.
The reasons for judgment of McDonald J comprehensively address the procedural history of the matter, the facts and evidence before the Tribunal, the Tribunal’s reasons for judgment, Mr Bachelard’s grounds of appeal, and the parties’ respective submissions. I gratefully adopt what his Honour has written in that regard. It is unnecessary to add to it. I agree with McDonald J that the Tribunal erred in law in affirming the AFP’s decision, that Mr Bachelard’s appeal should be allowed, that the Tribunal’s decision should be set aside, and that the matter should be remitted to the Administrative Review Tribunal to be determined in accordance with law.
I also substantially agree with McDonald J’s reasons for arriving at those conclusions. I propose, however, to provide some short additional reasons in respect of Mr Bachelard’s first ground of appeal, which concerns the Tribunal’s finding that the requested documents were exempt documents because their disclosure would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law. In my view, the Tribunal’s reasons for finding that disclosure of the documents would disclose the identity of confidential sources of information reveal that the Tribunal misconstrued the expression “confidential source of information” in s 37(1)(b) of the FOI Act and asked itself the wrong question in addressing whether the documents were exempt documents pursuant to that provision.
The expression “confidential source of information” in s 37(1)(b) of the FOI Act has typically been construed consistently with the principles applicable to the public interest immunity that attaches to information that would reveal the identity of confidential police (or other law enforcement agency) informants. That species of public interest immunity has been recognised in many cases since Marks v Beyfus (1890) 25 QBD 494: see Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674. The rationale for the immunity is that, if the police or other law enforcement agencies could be compelled to reveal the identity of confidential informers, “sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime”: Stuart at 674-675.
In Re Croom v Accident Compensation Commission (1989) 3 VAR 441 at 459, the President of the Victorian Administrative Appeals Tribunal (Judge Jones) at the time noted, in respect of the provision in the Freedom of Information Act 1982 (Vic) which was in relevantly the same terms as s 37(1)(b) of the FOI Act, that the provision was “analogous to that aspect of the law of public interest privilege in litigation which embraces statements made by informers to the police or to other governmental or non-governmental bodies” and was “designed to protect the identity of the informer”. The President also noted that what is “at the heart of the exemption is the protection of the informer not the subject matter of the communication”. The President concluded, among other things, that statements which various people had provided to an investigator were not confidential sources of information because “the statements did not result from an undertaking that they would be kept confidential and only provided on that basis” (at 459).
An appeal from the President’s decision was dismissed by the Supreme Court of Victoria. Justice O’Bryan, with whom Young CJ and Vincent J agreed, held that it was “clearly open to the tribunal to arrive at the finding that the evidence did not disclose that any witness provided information in confidence”: Accident Compensation Commission v Croom [1991] 2 VR 322 at 329. His Honour went on to observe that the “plain meaning one might ascribe to [the relevant provision] is that it is concerned with protection of the ‘informer’ and not with the protection of a potential witness who would prefer not to be identified”. His Honour emphasised in that regard that “[p]ublic interest has dictated for a long time the need to protect the true ‘informer’ but a reluctant witness has never attracted immunity at common law” and that “the words ‘confidential source of information’ do not apply to a potential witness in a civil proceeding who would prefer to remain anonymous for the time being”.
In Jorgensen v Australian Securities and Investments Commission 208 ALR 73; [2004] FCA 143, Weinberg J similarly observed (at [66]) that s 37(1)(b) “protects the position of confidential informants in relation to the enforcement of the law”.
In Department of Health v Jephcott (1985) 8 FCR 85; [1985] FCA 536, Forster J (at 89) adopted the interpretation of the expression “confidential source” in a decision of the United States District Court in Luizaich v United States 435 F Supp 31 (D Minn 1977) at 35, which was that “a source is confidential if the information was provided under an express or implied pledge of confidentiality”. His Honour went on to note that “[n]o doubt the main reason for protecting the identity of informants is to encourage them and others like them to give information, or at least not to discourage them from doing so, in order to assist the enforcement or the administration of the law”. Keely J held (at 90) that “a confidential source of information” in s 37(1)(b) of the FOI Act “means a person who has supplied information on the understanding, express or implied, that his or her identity will remain confidential”.
It may be noted that the meaning that has been given to the expression “confidential source of information” in s 37(1)(b) of the FOI Act, and cognate provisions in other legislation, essentially focusses on the position of the informer and the circumstances in which he or she provided information to the law enforcement authorities. In particular, the focus is on whether the informer or source provided the information subject to, or as a consequence of, an assurance or undertaking given by the law enforcement authority that their identity would remain confidential and not be revealed, or at least an understanding from the circumstances in which the information was provided that the law enforcement authority would not disclose their identity. The rationale for the protection afforded to information that would tend to reveal the confidential source’s identity is that people in a like position to the source may be reluctant to provide information to the authorities if, despite having been given such an assurance or undertaking, law enforcement authorities may nonetheless be compelled to disclose information that would reveal the identity of the source.
Three other points should be noted about the meaning to be given to the expression “confidential source of information” in this context.
First, the protection that is afforded is in respect of information that would reveal the identity of the confidential source of information, not in respect of the information provided to the authorities by the source.
Second, in determining whether a person is or was a confidential source of information, the focus is not so much on the position of the recipient of the information - the relevant law enforcement authority - and how it intended or was required to treat or deal with the information from the source. In particular, the question is not whether the recipient of the information unilaterally considered that the information it received from the source should remain confidential, or considered that the identity of the source should remain confidential, or had a practice of treating such information as confidential information, or was required by statute or otherwise to keep such information confidential. A source does not become a confidential source simply because the recipient of the information decided or was required to treat the information received from the source, including their identity, as being confidential. Rather, the focus of the assessment is on the position of the informer, and the circumstances and basis upon which they provided information to the authorities. Did the source provide the information under an express or implied assurance or undertaking that their identity would remain confidential, or on the understanding gleaned from the circumstances in which the information was provided that the law enforcement agency would not disclose their identity?
Third, the exemption is concerned with the protection of informers, not with mere reluctant witnesses who would prefer to remain anonymous until they were required to give evidence.
The Tribunal’s reasons for finding that the disclosure of the four documents in question would, or could reasonably be expected to, disclose or enable a person to ascertain the existence or identity of a confidential source, focussed entirely, or almost entirely, on the position of the AFP as the recipient of information from a source or sources, and on the nature of that information. In particular, the Tribunal’s reasons focussed entirely, or almost entirely, on the fact that AFP officers, employees and appointees are subject to broad secrecy provisions that, in general terms, prohibit them from divulging or communicating any information received by them in the course of their duties, except where the information is divulged or communicated for particular purposes relating to the execution of their duties.
For instance, at [36] of its Decision and Reasons for Decision dated 29 February 2024, the Tribunal observed that “[t]here is a general secrecy provision in s 60A of the AFP Act [the Australian Federal Police Act 1979 (Cth) – AFP Act] that prohibits relevant AFP personnel from divulging or communicating any information obtained in the course of carrying out, performing or exercising a duty, function or power under the AFP Act”. The Tribunal similarly noted that there was a “more specific confidentiality obligation” in the AFP Commissioner’s Order on professional standards, the effect of which was said to be that “any information obtained when investigating or managing a complaint must be treated in confidence”: Reasons at [36]. The Tribunal concluded that the “express statutory obligation of confidentiality” - which was presumably a reference to s 60A of the AFP Act - extended to “the identity of those who provided the three statements”: Reasons at [37].
The Tribunal did briefly refer to the evidence which had been relied on by the AFP in support of its objection to disclosure, being an affidavit sworn by a senior AFP officer, Commander Jason Kennedy. That evidence was said by the Tribunal to establish that the three statements “are confidential and have not been publicly disclosed” and that the AFP “at all times has treated its sources as confidential and has not disclosed them”: Reasons at [38]. The assertions of Commander Kennedy which were identified and relied on by the Tribunal focussed almost entirely on the confidentiality of the statements from the AFP’s perspective. The statements were said to be confidential because the AFP had treated them as such and had not disclosed them.
Commander Kennedy’s affidavit did not include any evidence, or any clear or unequivocal evidence, about the precise circumstances in which the information in the three statements was provided to the AFP. In particular, Commander Kennedy’s affidavit contained no evidence, or no clear and unequivocal evidence, to the effect that the sources provided the information in the statements subject to, or because they had been given, an assurance or understanding that their identities would remain confidential. Nor did Commander Kennedy’s affidavit contain any clear or unequivocal evidence to the effect that the circumstances in which the information was provided were such that the sources had cause to understand or believe that their identities would always remain confidential. The high point of Commander Kennedy’s evidence concerning the circumstances in which the source or sources provided the information in the statements to the AFP was a bare assertion (in paragraph 26c. of his affidavit) that the “information provided was obtained in confidence”. Even that assertion appeared to focus on the obtaining of the information from the AFP’s perspective. The information was said to have been obtained by the AFP in confidence. It was not said to have been provided by the source in confidence, or on the basis of an express or implied assurance or undertaking by the AFP that the information would at all times be treated confidentially.

In its reasons, the Tribunal stated that Commander Kennedy’s assertion that the three statements were confidential was “consistent with the position expressed by the statement providers who did not consent to disclosure”: Reasons at [38]. The evidentiary basis for that statement is at best unclear. There does not appear to have been any evidence before the Tribunal to the effect that the persons who provided the statements had indicated, at the time they provided the statements, that they did not consent to the disclosure of their statements because they did not consent to their identities being revealed. Commander Kennedy’s affidavit does not include any evidence to that effect.
During the Tribunal hearing, the AFP’s legal representative informed the Tribunal, somewhat obliquely, that certain individuals had been consulted pursuant to s 27A of the FOI Act, and that those individuals had responded that they did not consent to the disclosure of their information. The Tribunal was referred in that context to redacted copies of those responses that were apparently included in the “T” documents that were before the Tribunal, as well as unredacted copies that were also apparently included in the confidential “CT” documents that were before the Tribunal. There was an equally oblique reference to that topic in the AFP’s confidential statement of facts, issues and contentions. If that was the source of the Tribunal’s finding (at Reasons [38]) that the statement providers did not consent to the disclosure of their statements, the Tribunal erred in having regard to that material in determining whether the statement providers were a “confidential source of information” for the purposes of s 37(1)(b) of the FOI Act. Responses that the AFP may have received as part of the consultation procedure in s 27A of the FOI Act may have been relevant to the application of the personal privacy conditional exemption under s 47F of the FOI Act. It is, however, difficult to see how those responses could be relevant to the question whether the sources were, or considered themselves to be, confidential sources for the purposes of s 37(1)(b) of the FOI Act.
The Tribunal’s reasons in my view reveal that the Tribunal misconstrued s 37(1)(b) of the FOI Act and asked itself the wrong question. The Tribunal did not consider, or ask itself, whether the person or persons who provided the information recorded in the three statements were “confidential sources of information” for the purposes of s 37(1)(b) of the FOI Act because they provided the information subject to, or as a consequence of, an express or implied assurance or undertaking that their identities would remain confidential and not be revealed, or because they understood from the circumstances in which they provided the information that their identities would not be revealed. Indeed, the Tribunal gave little, if any attention, to the circumstances of the sources and the basis upon which they provided information to the AFP. Rather, the Tribunal focussed entirely, or almost entirely, on the position of the AFP and reasoned, in effect, that because AFP officers and employees are bound by general secrecy obligations, it must follow that all information provided to the AFP during an inquiry is provided in confidence, and therefore all the sources of that information are confidential sources. In so reasoning, the Tribunal effectively construed the expression “confidential source of information” as covering all information provided to the AFP which is subject to the general secrecy obligations in s 60A of the AFP Act. In my view that is an overly broad and erroneous construction of the expression.
The mere fact that AFP officers and employees are bound by the secrecy obligations in s 60A of the AFP Act in my view cannot alone support a finding that the source or sources of the information in the three statements were or are confidential sources for the purposes of s 37(1)(b) of the FOI Act. If that were the case, every person who provided information to the AFP during an AFP investigation would be a confidential source, even if the person provided the information willingly and openly and without any understanding, or assurance from the AFP, that their identity would not be disclosed. It is difficult to see how a person who provided information to the AFP could be said to be a confidential source simply because the AFP officer or employee to whom the information was provided was bound by general secrecy obligations, even if the source was unconcerned about whether their identity could or would be disclosed.
I should perhaps emphasise that I do not suggest that the fact that a person provided information to the AFP during, or for the purposes of, an AFP investigation, including an investigation under Pt V of the AFP Act, is irrelevant to the question whether the person who provided the information was or was not a confidential source. That is a circumstance that may, in conjunction with other circumstantial evidence, support an inference that the person provided the information on the understanding that his or her identity would remain confidential and would not be disclosed by the AFP. The point is that the fact that the information was provided in circumstances which engaged the general secrecy provision in s 60A of the AFP Act, or any similar general secrecy provision, would be unlikely alone to support that inference. The same can be said concerning the circumstance that the AFP considered the information to be confidential when it was received.
I should finally note that I also agree with McDonald J that the Tribunal’s reasons for finding that disclosure of the documents in question would disclose the identity of confidential sources of information were based on a misunderstanding of s 60A of the AFP Act. Most significantly, the Tribunal appears to have proceeded on the basis that s 60A of the AFP Act effectively precluded the AFP, or its members or officers, from disclosing the three statements, and therefore the identity of the person or persons who provided those statements, in any circumstances. As McDonald J has pointed out, however, the general prohibition in s 60A of the AFP Act in respect of the divulging or communication of information obtained by an AFP officer or employee in the course of their duties is subject to several exceptions. Perhaps most significantly, an AFP officer or member is not prohibited from divulging or communicating information in carrying out, performing or exercising their duties, functions or power under, inter alia, the AFP Act. It follows that an AFP officer or member would not be prohibited from disclosing the contents of the three statements in question in this matter, and therefore the identity of the source or sources of the information in those statements, if that disclosure occurred in the performance or exercise of the officer or member’s duties, functions or powers under the AFP Act.
A simple example is capable of both demonstrating the far-reaching scope of that exception and why the general secrecy provision in s 60A of the AFP Act cannot alone provide a proper basis for a finding that a person who provided information to the AFP was necessarily a confidential source for the purposes of s 37(1)(b) of the FOI Act. There could be little doubt that, if the outcome of the relevant AFP professional standards inquiry had been that a person was charged with an offence, or became the subject of some disciplinary or civil proceeding, s 60A of the AFP Act would not preclude any officer or employee of the AFP from disclosing the contents of the three statements for the purposes of that prosecution or other proceeding. The disclosure of the statements in those circumstances would be permitted because the disclosure would be for the purpose of the performance or exercise of the officer or member’s duties, functions or powers.
It is also highly likely that a person who provided a statement to the AFP for the purposes of an investigation or inquiry (including an investigation or inquiry pursuant to Pt V of the AFP Act concerning professional standards and AFP conduct and practice issues) would be aware that the AFP would be permitted, if not required, to disclose the statement (and therefore the person’s identity) if the investigation or inquiry resulted in court or other curial proceedings. It is, in those circumstances, difficult to see how a person who provided a statement to the AFP during an investigation or inquiry could be said to be a confidential source simply because of the general secrecy obligations in s 60A of the AFP Act.
A similar point was made in Re Croom. In that case, the respondent claimed, among other things, that an investigator’s report was an exempt document under the equivalent Victorian legislation on the basis that disclosure of the report would reveal the identity of confidential sources of information, namely persons who had provided statements to an investigator who had been retained by an insurance company that was disputing the applicant’s insurance or workers compensation claims. The investigator had told the people who made the statements that he would do his best to keep the statements confidential. In the Victorian Administrative Appeals Tribunal, the President found that the people who provided the statements were not “confidential sources of information”. The President’s reasoning included the following (at 460):
The reality is that the people interviewed by [the investigator] were potential witnesses at a hearing in a court or before the Tribunal or body dealing with workers compensation. In my view, they would be likely to realise this and that, notwithstanding the statements by [the investigator] about confidentiality, the information they provide might ultimately become public through some formal process. Indeed, that could easily occur through the tender of the report in proceedings before the ACT [Accident Compensation Tribunal], which is a relatively common occurrence.
As noted earlier, the President’s decision was upheld on appeal by the Supreme Court of Victoria in Croom. The statements by O’Bryan J, referred to earlier, to the effect that the provision in the relevant Victorian legislation equivalent to s 37(1)(b) was not concerned with the “protection of a potential witness who would prefer not to be identified” may be taken to be a reference to that aspect of the President’s reasoning.
For the above reasons, and for the reasons given by McDonald J, I would conclude that the Tribunal misconstrued s 37(1)(b) of the FOI Act and erred in law in concluding, for the reasons it gave, that the four documents in question were exempt documents by reason of that provision.
As noted earlier, I substantially agree with McDonald J’s reasoning in respect of all the other grounds of appeal. It is unnecessary for me to add anything in respect of the other grounds of appeal. I agree with McDonald J’s conclusions in respect of the other grounds of appeal and with the orders proposed by his Honour.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.
Associate:
Dated: 3 February 2025
REASONS FOR JUDGMENT
THAWLEY J:

I agree with the orders proposed by McDonald J and with his Honour’s reasons for those orders. I write only to add some observations in relation to Ground 1, concerning s 37(1)(b) of the Freedom of Information Act 1982 (Cth) (FOI Act).
The FOI Act creates a legally enforceable right to access an agency’s documents, other than exempt documents, on request – see: ss 11, 11A and 15. The principal purpose of s 37(1)(b) is to exempt documents from the right to access, where the granting of access to the document could reasonably be expected to disclose, or enable a person to ascertain, the existence or identity (or the non-existence) of a confidential source of information in relation to the enforcement or administration of the law.
The exemption is intended to preserve the anonymity of people who are confidential sources of information in relation to the enforcement or administration of the law. The exemption in s 37(1)(b) is not intended to protect reluctant witnesses or to provide a temporary protection from disclosure of the existence or identity of witnesses who are to be called at a hearing: Accident Compensation Commission v Croom [1991] 2 VR 322 at 329.
For the exemption to apply: (a) the information supplied must be information provided in relation to the enforcement or administration of the law; and (b) the person who supplied that information must have done so on the basis that the recipient of the information was obliged to keep the person’s identity confidential.
The obligation to maintain confidentiality can be express or implied: Department of Health v Jephcott (1985) 8 FCR 85, 89, 90 and 91; [1985] FCA 536. It may be inferred from the nature and content of the document and the circumstances in which the information was supplied: Jephcott at 89. The circumstances in which the information was supplied in the present case included that the information was supplied in the context of an investigation under Part V of the Australian Federal Police Act 1979 (Cth) (AFP Act). The statutory regime, including s 60A of the AFP Act, forms a part of the context relevant to determining what inference should be drawn about confidentiality, as do the practices of the Australian Federal Police (AFP) (see Jephcott at 89), particularly those known to or adopted by those persons who supplied information within the scope of s 37(1)(b).
The obligation of confidentiality must exist with respect to the existence or identity of the source of the information. The existence of an obligation of confidentiality with respect to the information provided is not a requirement for s 37(1)(b) to be engaged. However, the existence (or otherwise) of an obligation of confidentiality with respect to the information provided can inform a conclusion about whether there was an obligation of confidentiality in relation to the identity of the source of information. The Administrative Appeals Tribunal proceeded on that basis – see: T[32], [37]. The Tribunal’s consideration of whether the information provided was confidential was both relevant and material to a decision about whether the person who supplied the information did so on the basis that the recipient of the information was obliged to keep the person’s identity confidential.
It might be that a member of the public providing information to police officers responsible for investigating possible police corruption or misconduct would assume that the person’s identity as the source of the information would be kept confidential – see, for example, the observations of the President of the Victorian Civil and Administrative Tribunal in XYZ v Victoria Police (2010) 33 VAR 1; [2010] VCAT 255 at [156] and [157] (Bell J). Members of the public might well be reluctant to provide information in relation to corruption or misconduct unless the person thought that the person’s identity would be kept confidential. That may not necessarily always be the case.
It might also be that a police officer providing information about police corruption or misconduct for the purposes of an investigation into corruption or misconduct might have the understanding that the officer’s identity would be kept confidential. There are several reasons why this might be so, including the potential (or, where applicable, obvious) prejudice to an investigation and the willingness of police officers to participate should their identity be capable of disclosure. The fact that an officer might later be prepared to give evidence should a decision be made to take some formal action, such as prosecution, does not necessarily answer the question whether the officer provided the information as a confidential source at the time the information was provided.
In the absence of direct evidence about the officer’s understanding as to whether the officer’s identity would be kept confidential, the question is whether such an inference should be drawn having regard to the absence of direct evidence on the topic, the context, and the facts and circumstances as established by the material before the Tribunal. Some matters which might be relevant to drawing such an inference in any given case include:
·whether the investigation is likely to have been prejudiced if the source was not kept confidential;
·whether the practices and procedures of the agency were to keep the source of information confidential;
·whether those practices and procedures were known to or (where relevant) were adopted by the person providing the information;
·the reasonably expected risks or consequences to the person should their identity as a source of information come to the knowledge of others.
Before the Tribunal, the AFP adopted the usual course of providing both “open” and “confidential” information to the Tribunal for the purposes of determining the issues which arose on the review.
Commander Kennedy swore an “open” affidavit for the purposes of the Tribunal’s review. This affidavit focussed on Part V investigations generally and not in any detail about the particular circumstances in which the three statements had been obtained.
His affidavit included:
1.I hold the position of Commander Professional Standards for the Australian Federal Police (AFP). I have held this position for 3 years having been appointed in 2020. I have been a sworn member of the AFP since 1994 and have been involved in various operational matters …
…
3.The AFP’s Professional Standards Investigation Unit (PRS) investigates and makes findings in relation to AFP appointee’s breaches of the AFP code of conduct, and potentially run concurrent investigations if allegations rise to a level of criminal culpability. Investigations into allegations of misconduct by AFP appointees are conducted in accordance with Part V of the Australian Federal Police Act 1979 (Cth) (AFP Act).
4. The confidentiality of PRS investigations is generally reflected in the structure of the Command itself, it’s [sic] systems and the protections afforded by the AFP Integrity Framework:
a. The AFP Act, and in particular Part V of that Act, which establishes the legal processes and procedures by which AFP conduct and practice issues are to be dealt with;
b. the Australian Federal Police Regulations 2018 (Cth) (AFP Regulations), and in particular Parts 2 and 3 of those Regulations, which deal with specific matters relevant to integrity issues;
c.the Australian Federal Police Categories of Conduct Determination 2023 (Cth). This document sets out the types of conduct that fall within the three categories of conduct (categories 1, 2 and 3) prescribed in the AFP Act;
d.The AFP Commissioner’s Order on professional standards (known as ‘C02’) … C02 was first introduced on 2 February 2004; and
e.The AFP National Guideline on complaint management and grievance resolution (National Guideline) … The National Guideline was first introduced on 30 December 2006.
5. PRS is in many ways separate from the other areas and commands within the AFP. The AFP operates its systems and document storage generally through the PROMIS platform. However, PRS has a separate and self-contained platform known as PROMIS Integrity, which is only accessible by members of PRS and the Security Command. Access to PROMIS Integrity is limited within PRS on the basis of role and need. In addition, members of PRS can only access information on a ‘need to know’ basis.
…
7. The confidentiality of information obtained by and for the purposes of PRS investigations is foundational and essential to the effective operation of the Command.
8.The Part V process is the primary way in which the AFP identifies and investigates allegations of misconduct by its appointees. Appointees hold a trusted position in the community and the integrity of those appointees is absolutely vital to the proper functioning of the AFP. By its very nature, the investigative process under Part V will require appointees to report on the behaviour or conduct of their colleagues. It is essential that those reports are done in a confidential manner, so as to ensure the frank and fulsome disclosure of information to PRS and participation in Part V processes.
…
25. Having reviewed Statements A, B and C, I confirm that they are statements by certain persons associated with or members of the AFP. The statements were provided for the purposes of the investigation into an alleged breach of the law and contain detailed information about the subject matter of that investigation. The content of the statements has not been publicly disclosed.
26. In my opinion, it would not be reasonable to disclose the content of Statements A, B and C in circumstances where:
a. the content of each statement is contextual so that the disclosure of any information within would reasonably identify the individual;
b. the statements were given in the context of an investigation of a breach of the law. The persons who gave the statements are not publicly connected with the subject matter;
c. the information provided was obtained in confidence, such that if individuals were aware that information provided in statements could be released other than for the purposes of the investigation, it would impact the participation of appointees giving such statements in the future.

The only evidence before the Tribunal which could potentially be regarded as directly addressing the understanding of the providers of the three statements with respect to any obligation of confidentiality in relation to their identities was the statement by Commander Kennedy in the final paragraph of his affidavit (paragraph 26c) that he considered it “would not be reasonable to disclose the content of” the three statements in circumstances where “the information provided was obtained in confidence, such that if individuals were aware that information provided in statements could be released other than for the purposes of the investigation, it would impact the participation of appointees giving such statements in the future”.
This statement could be interpreted in different ways. To the extent paragraph 26c is capable of being understood as containing more than an expression of Commander Kennedy’s opinion, it appears to be directed more to the (relevant and material) question of the confidentiality of the information provided and the general impact on future investigations if “information provided in [such] statements could be released” than to the critical question of whether the persons who supplied the information did so on the basis that the recipient of the information was obliged to keep the persons’ identities confidential. It is not clear what the Tribunal understood paragraph 26c to mean.
In a case like the present, and noting that the evidence could be given confidentially or in closed session, it is difficult to see why direct evidence could not be given by the person providing the information said to fall within s 37(1)(b), or a person directly involved in receiving that information, as to any agreement or understanding about whether the identity of the person giving the information was to be kept confidential.
The Tribunal’s reasons as to whether there was “an understanding of confidentiality” are contained under that heading at [36] to [38] of its reasons. The Tribunal based its conclusion that there was “an understanding of confidentiality” on two matters: first and more importantly, the regime of confidentiality with respect to the information obtained; and secondly, a conclusion that the statement providers did not consent to disclosure. These conclusions are contained in [36] to [38] of the reasons:
(1)The Tribunal concluded at [36] that there was “a clear obligation that any information obtained when investigating or managing a complaint must be treated in confidence”. This finding was based on s 60A of the AFP Act and the AFP Commissioner’s Order on professional standards. The Tribunal concluded at [37] that there was “an express statutory obligation of confidentiality which extends to the identity of those who provided the three statements”. In context, the reference to “an express statutory obligation of confidentiality” must be a reference to s 60A.
(2)The Tribunal referred at [38] to Commander Kennedy’s evidence that the statements were confidential and stated that “[t]his confidentiality is consistent with the position expressed by the statement providers who did not consent to disclosure”.
When it came to considering the application of s 37(1)(b), the Tribunal failed adequately to address whether the providers of the statements made those statements on the express or implied basis that their identities would be kept confidential. As to the two matters referred to immediately above:
(1)To the extent that the Tribunal can be seen to have inferred from the statutory regime (and the Commissioner’s Order) that the statements were provided on the basis that the statement providers’ identities would be kept confidential, the Tribunal has not explained how that inference arises on the facts of this case on a correct understanding of the operation of s 60A. As McDonald J explains, s 60A does not prevent disclosure of information, or the existence or identity of a source of information, in all circumstances. For example, it does not prevent such disclosure where the disclosure is for the purposes of the AFP Act or regulations made thereunder: s 60A(2)(c). Whilst the existence of s 60A and the Commissioner’s Order are both relevant and material to whether the makers of the three statements provided information on the express or implied basis that their identities would be kept confidential, they do not of themselves supply the answer to that issue (see [37] above). I agree with McDonald J that the Tribunal proceeded on an incorrect understanding of the operation of s 60A, by failing to take the exceptions contained in s 60A into account. The Tribunal proceeded on the basis that s 60A had a broader application than it in fact does. Further, the Tribunal appears to have reasoned that, because s 60A applied with respect to the information obtained, the identity of the source was necessarily confidential. This is not correct.
(2)The Tribunal’s statement about the position “expressed by the statement providers” – that they “did not consent to disclosure” – was not supported by any evidence. If it was based on a submission, it is not clear whether:
(a)the Tribunal’s statement about the position expressed by the statement providers related to disclosure of the identity of the person or disclosure of the information provided or both; and
(b)the position said to be “expressed by the statement providers” was the position of those persons at the time they each provided the information as opposed to some later position said to have been adopted by them.
It follows that the Tribunal’s decision in respect of s 37(1)(b) is affected by error. As noted earlier, I agree with the orders proposed by McDonald J.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.
Associate:
Dated: 3 February 2025

REASONS FOR JUDGMENT
MCDONALD J:
INTRODUCTION

The applicant, Michael Bachelard, is an experienced journalist who writes for The Age newspaper. On 30 June 2021, he made a request to the respondent (AFP) for access to certain documents under the Freedom of Information Act 1982 (Cth) (FOI Act).
On 26 November 2021, a delegate of the Commissioner of the AFP advised that four documents falling within the scope of the request had been identified. Access to the documents was refused in full. Mr Bachelard sought internal review of that decision and it was affirmed on 19 December 2021. The decision on internal review was an “IC reviewable decision”: FOI Act, s 54L(2).
On 3 May 2022, Mr Bachelard applied to the Office of the Australian Information Commissioner for review of the decision on internal review. On 18 April 2023, a delegate of the Australian Information Commissioner declined to undertake a review in the exercise of the power conferred by s 54W of the FOI Act, on the basis that the interests of the administration of the FOI Act made it desirable that the IC reviewable decision be considered by the Administrative Appeals Tribunal (Tribunal). Accordingly, on 16 May 2023, Mr Bachelard applied to the Tribunal for review of the decision pursuant to s 57A(1) of the FOI Act. On 29 February 2024, the Tribunal, constituted by a Deputy President, made a decision affirming the decision under review.
Mr Bachelard now appeals to this Court against the decision of the Tribunal. The appeal lies only on a question of law: Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), s 44(1). In accordance with s 44(3) of the AAT Act, this Court’s jurisdiction to hear and determine the appeal is to be exercised by a Full Court.
Since the commencement of this appeal, the AAT Act has been repealed and the Tribunal has been replaced by the Administrative Review Tribunal (ART). Item 25(2) of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) provides that, in a proceeding in a court that relates to a decision made by the Tribunal, and which is not finalised before the commencement of the Administrative Review Tribunal Act 2024 (Cth), “[a]nything the court could have done in relation to [the Tribunal] before the transition time may be done in relation to the ART”.
For the reasons that follow, in my view, the appeal should be allowed. The decision of the Tribunal should be set aside and the matter should be remitted to the ART (differently constituted) to be determined in accordance with the law. The AFP should pay Mr Bachelard’s costs of the appeal.
Background facts
Mr Bachelard’s request for documents under the FOI Act was for witness statements and a report concerning an investigation relating to certain conduct of a former Commissioner of the AFP, Mr Keelty.
In 2020, media outlets, including The Age, reported allegations that Ben Roberts-Smith, a highly decorated soldier in the Special Air Service Regiment, had committed war crimes during his service in Afghanistan. Mr Roberts-Smith later commenced an action in defamation against The Age and the journalists working for The Age who had reported the allegations. That action was dismissed by Besanko J on 1 June 2023: Roberts-Smith v Fairfax Publications Pty Ltd (No 41) [2023] FCA 555 (Roberts-Smith (No 41)). Justice Besanko’s decision is presently the subject of an appeal to the Full Court of this Court.
On 16 August 2020, The Age published an article in which it was reported that the AFP’s investigation in relation to the conduct of Mr Roberts-Smith had been “compromised” after former AFP Commissioner Mick Keelty was provided with confidential information by serving police officers and then passed that information on to Mr Roberts-Smith. Among other things, the article stated that:
(a)in about late May 2018, the AFP had received two confidential referrals from the office of the Inspector-General of the Australian Defence Force regarding allegations that Mr Roberts-Smith had been involved in the commission of war crimes during his service as a special forces soldier in Afghanistan;
(b)at around the same time, the AFP also received a complaint from a woman alleging that Mr Roberts-Smith had punched her in the face while they were conducting an extramarital affair;
(c)in early June 2018, the AFP commenced a covert investigation into the three referrals regarding Mr Roberts-Smith’s conduct;
(d)in the days following the launch of the investigation, Mr Keelty had met with Mr Roberts-Smith on two occasions in June 2018 and passed on confidential information to Mr Roberts-Smith which “confirmed to Mr Roberts-Smith that he was the subject of police interest”;
(e)the Australian Commission for Law Enforcement Integrity (ACLEI) had confirmed that it had commenced an inquiry into “a potential corruption issue relating to the alleged release of information by an unknown AFP member to Mr Ben Roberts-Smith about an investigation into Mr Roberts-Smith”;
(f)ACLEI only had power to investigate allegations of corrupt conduct by serving AFP members and The Age was not suggesting “that Mr Keelty had engaged in corruption, only that his disclosures compromised a covert inquiry”;
(g)in a statement to The Age, the AFP had declined to comment apart from saying that it had referred the disclosures to ACLEI in June 2018;
(h)the ACLEI inquiry had “targeted” former AFP Deputy Commissioner Ramzi Jabbour;
(i)Mr Keelty had provided a written statement to The Age and the Sydney Morning Herald regarding his actions, in which he said that on about 15 June 2018, he had received a text message from Mr Jabbour saying that “something was on its way” regarding the referrals made by the Inspector-General to the AFP in relation to Mr Roberts-Smith;
(j)Mr Keelty also said that on about 20 June 2018, he called Mr Jabbour to discuss the investigation, and that during that conversation Mr Keelty stated that Mr Jabbour told him to contact AFP Assistant Commissioner Neil Gaughan, who was the senior officer overseeing the referrals made by the Defence Inspector-General to the AFP at the time;
(k)“according to multiple sources”, Mr Gaughan had disclosed Mr Keelty’s contact with Mr Roberts-Smith to the AFP’s Internal Affairs Unit;
(l)Mr Keelty had stated that he contacted Andrew Colvin, the AFP Commissioner at that time, to inform him that Mr Keelty had been asked to reach out to Mr Roberts-Smith out of concern for Mr Roberts-Smith’s welfare, and Mr Colvin had agreed to such an approach; and
(m)Mr Keelty had further said that Mr Colvin had made no direct reference to ongoing investigations during his conversation with Mr Keelty, but mentioned to Mr Keelty that he was not in a position to contact Mr Roberts-Smith at that time as there was “stuff running around” that prevented him from contacting Mr Roberts-Smith.
Mr Bachelard’s request for documents under the FOI Act
Mr Bachelard’s request for documents, made by email on 30 June 2021, was in the following terms:
This is a request under the FOI Act for statements written by:
Neil Gaughan
Nigel Ryan
Andrew Colvin.
Concerning approaches made by Mick Keelty to the AFP in June 2018 concerning Ben Roberts-Smith.
This FOI is also seeking the final report by AFP professional standards about Mr Keelty’s interaction with serving members.
As the nature of Mr Keelty’s conduct in contacting various AFP members has already been widely canvassed in media reports which relied on a public statement by Mr Keelty, and as the Professional Standards inquiry (at least as per how it pertains to Mr Keelty’s conduct) is now complete, there is no reason why these documents should not be released …
On 26 November 2021, a delegate of the Commissioner of the AFP wrote to Mr Bachelard identifying four documents relevant to his FOI request.
The documents identified were three witness statements (Statements) and a report that has been described as the “Professional Standards Report” or “PRS Report” (Report).
The delegate refused access to the four documents in full, relying on ss 22(1)(a)(ii), 37(1)(a), 47E(c) and(d) and 47F of the FOI Act. As has been noted above, Mr Bachelard sought internal review of the AFP’s decision, the result of which was that the original decision was affirmed. Mr Bachelard then applied to the Australian Information Commissioner for review of the decision and a delegate of the Australian Information Commissioner determined not to review the decision on the basis that the interests of the administration of the FOI Act made it desirable that the IC reviewable decision be considered by the Tribunal. Mr Bachelard then applied to the Tribunal for review of the AFP’s decision pursuant to s 57A(1) of the FOI Act.
The decision of the Tribunal
Before the Tribunal, the AFP relied on an affidavit of Commander Jason Kennedy sworn on 27 October 2023. Commander Kennedy held the position of Commander, Professional Standards in the AFP. Mr Bachelard relied on an affidavit affirmed by him on 27 November 2023, in which he referred to various media reports regarding the allegations against Mr Roberts-Smith, and findings made by Besanko J in relation to the disclosure made by Mr Keelty at [2434]-[2437] of the decision in Roberts-Smith (No 41).
The Tribunal conducted a hearing on 1 December 2023. Neither of the deponents was cross-examined on his affidavit. On 29 February 2024, the Tribunal made a decision affirming the decision under review. In its reasons for the decision, the Tribunal held that:
(a)the Statements and the Report were exempt documents under s 37(1)(b) of the FOI Act;
(b)the Statements and the Report were conditionally exempt under s 47E(c) and (d) of the FOI Act;
(c)the Statements and the Report were conditionally exempt under s 47F of the FOI Act; and
(d)granting access to any of the Statements or the Report would be contrary to the public interest pursuant to s 11A(5) of the FOI Act.
The reasons of the Tribunal in relation to each of these aspects of its decision are considered in greater detail below in the course of considering Mr Bachelard’s grounds of appeal and submissions.
THE APPEAL TO THIS COURT
In this Court, Mr Bachelard relies on the following grounds of appeal (slightly paraphrased):
(1)The Tribunal misconstrued and/or misapplied s 37(1)(b) of the FOI Act in finding that the providers of the Statements were “confidential sources of information”.
(2)The Tribunal erred in law in finding that the Report, in its entirety, and the Statements, in their entirety, were exempt documents under s 37(1)(b), and/or in failing to confine the effect of its decision to the disclosure of a “confidential source”.
(3)The Tribunal misconstrued and/or misapplied s 47E(c) and (d) of the FOI Act in finding that disclosure of the Report and the Statements would have a substantial adverse effect because:
(a)the material before the Tribunal was not capable of supporting that finding; and
(b)the Tribunal overlooked and/or failed to consider relevant facts.
(4)The Tribunal erred in law in finding that the Statements were exempt documents under s 47E(c) and (d) of the FOI Act in circumstances where the AFP did not rely on either of those statutory provisions.
(5)The Tribunal erred in law in finding that the Report and the Statements, in their entirety (ie, without redaction), were exempt under s 47E(c) and (d) of the FOI Act and failing to consider and/or apply redactions.
(6)The Tribunal misconstrued and/or misapplied s 47F of the FOI Act in finding that the Statements and the Report, in their entirety (ie, without redaction), were conditionally exempt because they contained personal information which it would be unreasonable to disclose.
(7)The Tribunal misconstrued and/or misapplied the “public interest” under s 11A(5) of the FOI Act in finding that disclosure of the Statements and the Report would be contrary to the public interest.
(8)The Tribunal erred in finding that parts of the Report were irrelevant and outside the scope of the request by misconstruing the request and/or failing to consider relevant matters.
Most of the grounds of appeal were supplemented by particulars. The substance of the issues arising in respect of each ground is explained as I address the grounds below. In light of the view I take about the issues I address below, it will not be necessary to address every ground, or every aspect of every ground.
For the purposes of the appeal, the AFP provided the judges constituting the Court with complete copies of the Statements and the Report on a confidential basis. Neither Mr Bachelard nor his representatives have been provided with copies of the Report or the Statements in any form.
The decision of the Tribunal was that access should not be given to any of the documents or to edited versions of any of the documents. The effect of the conclusions I have reached is that the question of whether the documents (or edited versions of the documents) are exempt from disclosure under the FOI Act should be re-determined. The position of the AFP remains that each of the Statements and the Report is a document that should not be released in any form. It has therefore been necessary to express these reasons in a manner that avoids describing the contents of the Report or the Statements except in general terms.
In reading and interpreting the reasons of the Tribunal, I am conscious that the Tribunal, too, was unable to refer to the contents of the Report or the Statements and I have taken this into account in considering the meaning of the Tribunal’s reasons and what they should be understood as revealing about the reasoning of the Tribunal.
RELEVANT PROVISIONS OF THE FOI ACT
Section 11A of the FOI Act provides:
11A Access to documents on request
Scope
(1)This section applies if:
(a)a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for access to:
(i)        a document of the agency; or
(ii)       an official document of the Minister; and
(b)any charge that, under the regulations, is required to be paid before access is given has been paid.
(2)This section applies subject to this Act.
Mandatory access—general rule
(3)The agency or Minister must give the person access to the document in accordance with this Act, subject to this section.
Exemptions and conditional exemptions
(4)The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.
(5)The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.
(6)Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both:
(a)       a conditionally exempt document; and
(b)       an exempt document:
(i)under Division 2 of Part IV (exemptions); or
(ii)within the meaning of paragraph (b) or (c) of the definition of exempt document in subsection 4(1).
(Notes omitted.)

The expression “exempt document” which is used in s 11A(4) is (so far as is relevant to the present appeal) defined in s 4(1) of the FOI Act to mean “a document that is exempt for the purposes of Part IV”. Part IV of the FOI Act is entitled “Exempt Documents”. Within Division 1 of that Part, s 31B provides:
31B Exempt documents for the purposes of this Part
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b)it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
(Notes omitted.)
Section 32 is relevant to the interpretation of the provisions that identify the exemptions and conditional exemptions. It states:
32 Interpretation
A provision of this Part by virtue of which documents referred to in the provision are exempt documents, or are conditionally exempt:
(a) shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents, or are conditionally exempt; and
(b)shall not be construed as not applying to a particular document by reason that another provision of this Part of a kind mentioned in paragraph (a) also applies to that document.
The effect of s 32 is that no implication or inference about the interpretation of one exemption is to be drawn from the existence or terms of any other exemption: each exemption stands alone and is to be construed without making any assumption that exemptions were not intended to overlap.
The provisions of Division 2 of Part IV (ss 33-47A) identify categories of documents which are exempt documents, while the provisions of Division 3 of Part IV (ss 47B-47J) identify categories of documents which are conditionally exempt, in the sense that they are exempt documents if, but only if, access to them would, on balance, be contrary to the public interest.
Section 15 of the FOI Act provides for the making of requests for access to documents. It relevantly states:
15 Requests for access
Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.
Requirements for request
(2) The request must:
(a) be in writing; and
(aa) state that the request is an application for the purposes of this Act; and
(b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and
(c) give details of how notices under this Act may be sent to the applicant (for example, by providing an electronic address to which notices may be sent by electronic communication).
…
Before the Tribunal, the AFP relied on the exemption provided for in s 37(1)(b) of the FOI Act and the conditional exemptions provided for in ss 47E(c) and (d) and 47F.
Section 37(1) of the FOI Act relevantly provides:
37 Documents affecting enforcement of law and protection of public safety
(1)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
…
(b)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or
…
Section 37(2A) identifies a class of persons who are “taken to be” confidential sources of information for the purposes of s 37(1), but s 37(2A) does not exhaustively define who are confidential sources and has no immediate relevance to the issues arising on this appeal.
Section 47E of the FOI Act relevantly provides as follows:
47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:
…
(c) have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.
Section 47F of the FOI Act relevantly provides as follows:
47F Public interest conditional exemptions—personal privacy
General rule
(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.
(3)Subject to subsection (5), subsection (1) does not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.
…
The provisions identifying classes of exempt documents and conditionally exempt documents generally do so by reference to what disclosure of a document would “involve” or by reference to effects which disclosure of a document would have, or could reasonably be expected to have. Although the focus of s 11A(1) of the FOI Act is on requests for “documents”, and s 11A(4) requires agencies (and, on review, the Australian Information Commissioner or the Tribunal) to determine whether a document is an “exempt document”, s 4(1) of the FOI Act also defines the useful concept of “exempt matter” as follows:
exempt matter means matter the inclusion of which in a document causes the document to be an exempt document.
Section 22 of the FOI Act provides that:
22 Access to edited copies with exempt or irrelevant matter deleted
Scope
(1)      This section applies if:
(a)       an agency or Minister decides:
(i)to refuse to give access to an exempt document; or
(ii)that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and
(b)it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:
(i)access to the edited copy would be required to be given under section 11A (access to documents on request); and
(ii)the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and
(c)it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:
(i)       the nature and extent of the modification; and
(ii)       the resources available to modify the document; and
(d)it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.
Access to edited copy
(2)      The agency or Minister must:
(a)       prepare the edited copy as mentioned in paragraph (1)(b); and
(b)      give the applicant access to the edited copy.
Notice to applicant
(3)      The agency or Minister must give the applicant notice in writing:
(a)that the edited copy has been prepared; and
(b)of the grounds for the deletions; and
(c)if any matter deleted is exempt matter—that the matter deleted is exempt matter because of a specified provision of this Act.
(4)Section 26 (reasons for decision) does not apply to the decision to refuse access to the whole document unless the applicant requests the agency or Minister to give the applicant a notice in writing in accordance with that section.
Broadly speaking, the effect of s 22(2) is to require the relevant agency to provide at least an edited copy of a document that is the subject of a request if it is possible and reasonably practicable to prepare an edited copy that contains no exempt matter and no “information that would reasonably be regarded as irrelevant to the request for access”.
Section 61(1) of the FOI Act should also be noted. Insofar as it is presently relevant, it provides:
61 Onus
(1) In proceedings under this Part for review of a decision in relation to a request … :
…
(b) if the applicant in relation to the request … applied for the review—the agency to which, or the Minister to whom, the request … was made has the onus of establishing that the decision is justified, or that the Tribunal should give a decision adverse to the applicant.
The effect of s 61(1) is that, in proceedings on a review in the Tribunal, the agency – in this case the AFP – bears the onus of establishing the facts necessary to support the conclusion that an exemption or conditional exemption applies.
THE POSITION TAKEN BY THE AFP IN THE PROCEEDINGS BEFORE THE TRIBUNAL
The issues before the Tribunal as identified in the Statements of Facts, Issues and Contentions
It is convenient to begin by identifying the issues before the Tribunal and, in particular, the position taken by the AFP before the Tribunal.
In the proceedings before the Tribunal, both Mr Bachelard and the AFP filed Statements of Facts, Issues and Contentions (SFICs). One apparent purpose of those documents was to define the issues in contention between the parties which the Tribunal would be required to decide. In accordance with procedural directions made by the Tribunal, the AFP provided two SFICs, one which was provided to Mr Bachelard (AFP Open SFIC) and one which was provided only to the Tribunal on a confidential basis (AFP Confidential SFIC).
At [15], the AFP Open SFIC stated:
Attached to this SFIC and marked Attachment A is a schedule which itemises the relevant FOI Act provision relied on by the respondent, in respect to each of the Documents.
At [17], the AFP Open SFIC referred to s 22(1)(a)(ii) of the FOI Act and at [18] it said:
The Respondent submits that those parts of the Professional Standards Report identified in the schedule at Attachment A are outside the scope of the access application.
Both parties accepted that the references in these paragraphs to “Attachment A” were to a particular document entitled “Schedule of documents in dispute” which (although not in fact identified on its face as “Attachment A”) contained a table identifying the four documents, and the grounds of exemption and the FOI Act provisions on which the AFP relied (Schedule). The Schedule indicated that the AFP’s position with respect to the Report, and each of the Statements, was that access should be “refused in full”.
The issues joined between the parties in relation to the Report
In relation to the Report, the Schedule indicated that the provisions of the FOI Act relied upon were ss 22(1)(a)(ii), 37(1)(b), 47E(c) and (d), and 47F. The Schedule did not expressly state whether the AFP’s position was that the entirety of the Report was covered by each of those provisions considered on its own, or whether each of the identified provisions applied to all or part of the Report so that, between them, they covered the whole of the Report. However, given that s 22(1)(a)(ii) (relating to the redaction of “information that would reasonably be regarded as irrelevant to the request”) was one of the provisions referred to, the Schedule could not be sensibly interpreted as claiming that each of the provisions, on its own, covered the entirety of the Report: a document identified by the AFP as within Mr Bachelard’s FOI request could not logically consist wholly of material that the AFP regarded as irrelevant to that request or “out of scope”.
Moreover, there were other passages in the AFP Open SFIC that clearly indicated that at least some of the exemptions on which the AFP relied were only said to be relevant to limited parts of the Report. At [20]-[21], the AFP Open SFIC said:
[20] To the extent the Professional Standards Report discusses matters other than the AFP’s Professional Standards Investigation Unit’s (PRS’s) investigation of Mr Keelty’s conduct in respect of Mr Roberts-Smith in June 2018, the information is outside the scope of the access application and access ought be refused under section 22(1)(a)(ii) of the FOI Act on the basis that it is irrelevant to the access application.
[21] Also, and in the alternative, the Respondent submits that access to the complete Professional Standards Report should be refused on the basis that the information contained in the Professional Standards Report is exempt and/or conditionally exempt under Part IV Division 2 and Division 3 of the FOI Act.
The first of these paragraphs confirmed that s 22(1)(a)(ii) was relied on only in relation to part of the Report. The second of these paragraphs was ambiguous as to whether the AFP contended that each individual exemption applied to all matter in the Report or merely that, between them, the exemptions relied upon covered the whole of the Report. There were other paragraphs in the AFP Open SFIC which, on a fair reading, would have conveyed to a person in Mr Bachelard’s position that the AFP was only claiming that parts of the Report were covered by each individual exemption. For instance, the AFP Open SFIC at [30] said:
The Respondent submits that those parts of the Professional Standards Report identified in the schedule at Attachment A and all of documents A, B and C [ie, the Statements] are exempt from disclosure under section 37(1)(b) of the FOI Act.
Equivalent statements in the AFP Open SFIC indicated that the AFP contended that “those parts of the Professional Standards Report identified in the schedule at Attachment A” were conditionally exempt from disclosure under s 47E(c) (at [42]), s 47E(d) (at [50]) and s 47F (at [65]). These passages of the AFP Open SFIC would have been somewhat confusing to a person in Mr Bachelard’s position, because the Schedule did not in fact link particular exemptions or sections of the FOI Act to particular “parts” of the Report. Nevertheless, these passages suggested fairly clearly that the AFP was only claiming that each of the exemptions or conditional exemptions applied to “parts” of the Report. That is especially so in light of the apparent contrast drawn in [30] of the AFP Open SFIC between “parts of the Professional Standards Report” and “all of documents A, B and C”.
The position with respect to the Report is further complicated when regard is had to the copy of the Report that was provided confidentially to the Tribunal (and, on the appeal, to this Court). Of course, that copy was not available to Mr Bachelard. It was marked up in such a way as to identify whole pages and parts of pages of the Report to which s 22(1)(a)(ii) was claimed to apply, and other pages and parts of pages to which s 47E(c) was claimed to apply. There was no markup in the Report that identified any particular part of it that was claimed to be exempt by reason of ss 37(1)(b), 47E(d) or 47F.
One possible inference is that the AFP was claiming that ss 37(1)(b), 47E(d) and 47F applied to the whole of the Report, but that ss 47E(c) and 22(1)(a)(ii) only applied to the identified parts of the Report. However, it is not apparent why, for example, the AFP would claim that s 47E(c) applied only to parts of the Report but that s 47E(d) applied to the whole of the Report.
Another possible inference is that the exercise of identifying the parts of the Report to which each provision was claimed to apply had only been partially completed.
Since it was clear that the AFP did rely on the exemptions in each of ss 37(1)(b), 47E(c) and (d) and 47F in relation to the Report, I accept that, on balance, the most appropriate way to interpret the AFP Open SFIC and the confidential copy of the Report, when they are read together, is that the AFP was claiming that:
(a)the whole of the Report was exempt under s 37(1)(b) of the FOI Act;
(b)the whole of the Report was exempt under s 47E(d) of the FOI Act;
(c)the whole of the Report was exempt under s 47F of the FOI Act;
(d)particular parts of the Report contained matter which was exempt matter by reason of s 47E(c) of the FOI Act, being those parts marked up in the confidential copy of the Report with the label “s 47E(c)”; and
(e)particular parts of the Report contained information which was irrelevant to the request and to which s 22(1)(a)(ii) of the FOI Act applied.
However, to a person in the position of Mr Bachelard, without access to the marked up copy of the Report, the most obvious and reasonable interpretation of the AFP Open SFIC was that the AFP was claiming that, while the provisions relied upon between them covered the whole of the Report, each provision (ss 22(1)(a)(ii), 37(1)(b), 47E(c) and (d) and 47F) was only relied upon in relation to some parts of the Report. There was, of course, no way for a person in Mr Bachelard’s position to tell which provisions were said to apply to which parts of the Report, or even to have any sense of how much matter in the Report was claimed to be exempt matter by reason of each provision.
The issues joined between the parties in relation to the Statements
In relation to each of the Statements, the Schedule indicated that the provisions of the FOI Act on which the AFP relied were ss 37(1)(b) and 47F. Notably, in connection with the Statements, the Schedule did not identify the exemptions on which the AFP relied as including those provided for in s 47E(c) or (d). This assumes significance in relation to ground 4 of Mr Bachelard’s appeal.
Observations about the definition of the issues before the Tribunal
An evident purpose of documents like the AFP Open SFIC is to define the issues for decision by the Tribunal. Ideally, that should be done in a way that will allow both the Tribunal and the FOI applicant to understand the issues and the extent of the material over which exemptions are claimed, insofar as that is possible having regard to the need to avoid inappropriately disclosing information about the material over which exemptions were claimed. An FOI applicant may be expected to make forensic decisions about the conduct of their case in the Tribunal in the light of their understanding of the issues, including (a) which exemptions are relied upon by the agency; (b) whether those exemptions are relied upon in relation to all or only some of the documents identified as relevant to the access request; and (c) whether particular exemptions are relied upon in relation to the whole or only parts of particular documents.
The difficulties associated with identifying whether the Report was claimed to be wholly or partly exempt under each exemption relied on by the AFP demonstrate the need for careful thought to be given to the way documents like the AFP Open SFIC are expressed, having regard, in particular, to the way a person in the position of an FOI applicant, in possession of less information than the agency and the Tribunal, would reasonably understand them.
GROUND 1 – MISCONSTRUCTION OF CONFIDENTIAL SOURCES EXEMPTION
By his first ground of appeal, Mr Bachelard contended that the Tribunal misconstrued or misapplied s 37(1)(b) of the FOI Act in finding that the providers of the Statements were “confidential sources of information”. Mr Bachelard advanced three distinct arguments in connection with this ground of appeal.
The first argument was advanced in two different ways. The first was that, on its proper construction, s 37(1)(b) of the FOI Act applies only to “informants” who voluntarily provide information in relation to the enforcement or administration of the law, and does not apply to information that is given under compulsion. Mr Bachelard submitted that the makers of the Statements were not “informants” and that the information they provided could not be from a “confidential source” because Part V of the Australian Federal Police Act 1979 (Cth) (AFP Act) contains provisions under which AFP members can be compelled to participate in investigations. The second way I understood the first argument to be advanced was by way of a submission that the fact that AFP members could be compelled to provide information was a mandatory relevant consideration to which the Tribunal was required to have regard in making its assessment as to whether the person who provided the Statements was a “confidential source”.

The ordinary grammatical meaning of the terms of the request is reinforced by the consideration that one of the requirements for the making of a valid request under s 15(2)(b) of the FOI Act is that the request must “provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it”. In that statutory context, and given that there were obviously likely to be many “final reports” made by the AFP Professional Standards Command, it is natural that Mr Bachelard should seek to identify the particular document he was referring to by reference to something he knew about its likely content. Indeed, it is difficult to see how else he could have adequately described that particular document to enable it to be distinguished from other reports. Moreover, the brief language chosen by Mr Bachelard (“about Mr Keelty’s interaction with serving members”) is more consistent with the objective of enabling the document sought to be identified than with an attempt to describe exhaustively the substantive content of information that was sought by the request. It is to be recalled that Mr Keelty was not a serving AFP appointee.
For these reasons, I conclude that the true scope of Mr Bachelard’s request, properly construed, was for the document constituting the Report. The Tribunal erred insofar as it accepted that Mr Bachelard, by including the words “about Mr Keelty’s interaction with members of the AFP”, was seeking to limit his request to particular parts of the Report that dealt with that topic.
The Tribunal’s failure correctly to identify the scope of the request involved an error on a question of law
The concept of a “request for access” is central to the FOI Act. Section 15(1) entitles a person who wishes to obtain access to a document of an agency to “request access to the document”. Section 15(2) sets out particular requirements that the request must meet. Relevantly, s 15(2) requires that a request must “provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency … to identify it”. It is implicit in this provision that each “request” is for a particular document (or multiple documents) that is capable of being “identified” – that is, identified as the document that is the subject of the request.
Section 11(1)(a) provides that, subject to the FOI Act, every person has a legally enforceable right to obtain access in accordance with the FOI Act to a document of an agency, other than an exempt document. Section 11A(1)(a)(i) provides that s 11A applies “if a request is made by a person, in accordance with subsection 15(2), to an agency … for access to … a document of the agency”. Section 11A(3) provides that the agency “must give the person access to the document in accordance with this Act”, subject to s 11A. The reference in s 11A(3) to “the document” is to the document that is the subject of the request made under s 15(2). This is reinforced by the terms of s 15(7), which speak of “the document that is the subject of the request”. The effect of these provisions is that the right of a person to obtain a document is defined, in part, by the “request”. It is the request that identifies the document (or documents) which an agency is required to search for, consider and, ultimately, provide access to in accordance with the FOI Act.
Other provisions of the FOI Act also refer to a “request for a document”, and impose obligations on agencies in relation to “the document”: see, eg, ss 24, 24A. In so doing, they appear to assume that there is an objectively identifiable document that is “the document” the subject of the request. Similarly, s 21 speaks of “the provision of access to the document concerned”.
The task that the Tribunal is required to perform in order to give effect to s 22(1)(b)(ii) is to assess whether an edited copy of a document can be prepared such that “the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request”. Given that the FOI Act generally proceeds on the assumption that the request is for a particular objectively identifiable document, I would not construe s 22(1)(b)(ii) as committing to the decision-maker the question of what constitutes “the request”. The task committed to the decision-maker is to make a judgement as to what information (if any) is reasonably regarded as irrelevant to the (correctly identified) request. Put another way, the content of the “request” is, in effect, a kind of jurisdictional fact – not in the sense that the existence of the decision-maker’s jurisdiction depends on the objective existence of the fact, but in the sense that the task which the decision-maker is to perform must be performed with an objectively correct appreciation of the nature of the request.
For these reasons, if the Tribunal applied s 22(1)(b)(ii) on an incorrect appreciation of the nature of the “request” (as I think it did, for the reasons explained at [261]-[264] above), it will have asked itself the wrong statutory question and, consequently, failed to exercise its jurisdiction as required by the FOI Act. That would be an error of law and the question of whether the Tribunal’s decision was affected by jurisdictional error is a question that can properly be determined on an appeal on a question of law: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at 385 [202]; see also Roads and Traffic Authority (NSW) v Peak [2007] NSWCA 66 at [151] (Basten JA).
The AFP submitted that the assessment by the Tribunal of whether giving access to a document “would disclose information that would reasonably be regarded as irrelevant to the request” involves an evaluative judgement and gives rise to “questions of fact and degree”. In support of that submission, the AFP referred to Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101; [2004] FCAFC 237 (Bennett) at 115 [52] (Emmett J). It is to be accepted that the question of whether particular matter in a document bears a relation to a request for documents such that it can be characterised as “reasonably regarded as irrelevant to the request” involves an evaluative judgement. A complaint that merely criticises the evaluative judgement made in a particular case will not necessarily give rise to a question of law (although, as Gyles J noted in Bennett at 120 [68], “an error on a question of law may be bound up with the question of fact”). However, it does not follow that the anterior question of the proper construction of the request is merely a question of fact that cannot give rise to a question of law. For the reasons given above, the scope of the request is a key determinant of the limits of the jurisdiction of the decision-maker under the FOI Act, and the question of whether the decision-maker exercised its jurisdiction by reference to the request is a question of law.
The Tribunal’s failure to give reasons for deciding that parts of the Report were out of scope
The Tribunal’s reasons at [84] do not reveal what considerations led it to adopt one interpretation of the scope of the request rather than another. It is not apparent from the Tribunal’s reasons that it even appreciated and dealt with the argument that had been made by Mr Bachelard, to the effect that the request was for the document constituting the Report. Rather, the Tribunal’s bare assertion that it accepted that AFP’s submission that part of the Report dealt with “another topic” suggests that the Tribunal proceeded on the assumption that the only question the Tribunal had to address was the factual question of whether the parts of the Report which the AFP claimed were covered by s 22(1)(a) dealt with a topic other than that described in the request.
In my view, the Tribunal’s reasons on this topic were not legally adequate to explain how it had reached its conclusion and how it had resolved the issue between the parties in relation to the proper interpretation of the request in relation to the Report. That the Tribunal dealt with the matter only cursorily is perhaps understandable in circumstances where the Tribunal had held that the Report was wholly exempt by reason of each of ss 37(1)(b), 47E(c) and (d) and s 47F. The Tribunal at [84] was considering a hypothetical issue that did not arise on its own findings. While this might explain why the Tribunal might have decided not to explain its reasons in relation to this issue, insofar as the conclusion at [84] might otherwise have been relied on by the AFP as identifying a basis for upholding the Tribunal’s refusal of access to parts of the Report, the reasons given by the Tribunal are not legally adequate to support that conclusion.
I do not mean to suggest that the Tribunal’s reasons needed to explain in detail its decision to accept that particular parts of the Report were irrelevant to the request as understood by the Tribunal; that would be a difficult task given the need for the Tribunal to avoid revealing the content of the Report, which it had found to be entirely exempt from disclosure.
However, the consideration that the Tribunal was unable to refer to the content of the Report should not have prevented it from providing reasons for rejecting Mr Bachelard’s submission that his own intention, in making the request, was to seek access to the Report in its entirety, and that that was the proper construction of the request. The Tribunal never even clearly addressed that first question. It is not clear whether it failed to appreciate, or forgot about, Mr Bachelard’s submissions on that point. Insofar as the Tribunal implicitly proceeded on the basis that that issue was resolved against Mr Bachelard, it gave no reasons for that aspect of its decision.
The Tribunal could not reasonably have reached the conclusion it did in relation to the application of s 22(1)(a)(ii)
Having perused the Report, it is clear to me that, even if (contrary to my conclusion above) the request was properly to be interpreted as limited to the subject matter of “Mr Keelty’s interaction with serving members”, there are significant parts of the Report which were claimed to be covered by s 22(1)(a)(ii) but which the Tribunal could not properly have regarded as irrelevant to Mr Bachelard’s request, on any reasonable view.
Mr Bachelard has not had the opportunity of knowing what particular parts of the Report were covered by the AFP’s submission that they were beyond the scope of the request. It would not be possible to discuss the contents of those parts of the Report in detail without revealing their contents. Since there remains a dispute as to whether Mr Bachelard should be given access to any part of the Report, it would not be appropriate for me to identify its content in any detail in these reasons.
Without attempting to be exhaustive, in my view it was not reasonably open to the Tribunal to accept that s 22(1)(a)(ii) applied to all the following parts of the Report which were identified by the AFP as covered by s 22(1)(a)(ii):
(1)It was claimed that the entirety of the cover page of the Report, including its title, was covered by s 22(1)(a)(ii). However, none of the information on that page related to any discrete subject matter different from the investigation in which Mr Bachelard was interested.
(2)It was claimed that the entirety of the table of contents of the Report was covered by s 22(1)(a)(ii). However, nothing in the table of contents related to a discrete subject matter different from or unrelated to the investigation in which Mr Bachelard was interested.
(3)It was claimed that parts of the Executive Summary of the Report were covered by s 22(1)(a)(ii). They included parts which identified what had been referred for investigation, including the very matter in which Mr Bachelard had indicated he was interested, and described the manner in which the writer of the Report had dealt with that matter and why.
(4)The whole introductory section of the Report (which runs to some 33 paragraphs) was said to be covered by s 22(1)(a)(ii). In the introductory section of the Report, the author explained:
(a)the process by which issues to be investigated, including the very matter in which Mr Bachelard was interested, were allocated;
(b)the history of earlier investigations about that matter;
(c)the terms of reference provided to the author relating to that matter;
(d)relevant legislation and policy documents which applied to the investigation of that matter and which bound the person whose conduct was the subject of the investigation;
(e)the author’s approach to fact-finding in relation to that matter;
(f)the requirements of confidentiality applying to the Report;
(g)the procedural steps taken by the author to conduct the investigation into the matter including the interviewing of particular persons and the basis on which the interviews were conducted; and
(h)the author’s communications with the person whose conduct was the subject of the investigation.
(5)The entirety of the short section of the Report which set out the author’s summary of the issues that had been the subject of the investigation was claimed to be covered by s 22(1)(a)(ii).
(6)It was claimed that s 22(1)(a)(ii) applied to parts of the Report setting out:
(a)evidence about Mr Keelty’s activities and the relationships between him and various other persons;
(b)background facts setting the context for conduct that was the subject of the investigation;
(c)media articles relating to those background facts; and
(d)the characterisation of certain alleged conduct or possible conduct of the very kind Mr Bachelard had indicated he was interested in.
The parts of the Report to which s 22(1)(a)(ii) was claimed to apply were very extensive. The main body of the Report consists of 135 numbered paragraphs. Of those, the AFP claimed, and the Tribunal evidently accepted, that s 22(1)(a)(ii) applied to the whole of 81 of the paragraphs of the Report, and to parts of three further paragraphs. On no view can all those paragraphs be said to deal with “another topic” in the sense of being concerned only with a discrete topic that is different from the investigation and conduct the subject of the Report.
I note that, in [20] of the AFP Open SFIC (set out at [253] above), the AFP appears to have accepted that the intended target of Mr Bachelard’s request was (at least) information relating to “the AFP’s Professional Standards Investigation Unit’s (PRS’s) investigation of Mr Keelty’s conduct in respect of Mr Roberts-Smith in June 2018”. Whether or not it can be said that the Report dealt with any other discrete matter or matters, the paragraphs of the Report which the Tribunal held were covered by s 22(1)(a)(ii) extended far beyond any discrete part of the Report dealing exclusively with a different matter. As is apparent from the summary at [277] above, many of those paragraphs described matters that were undoubtedly relevant to the investigation into the very matter that Mr Bachelard’s description of the Report in the request had indicated he was interested in.
These are not mere differences of opinion in relation to findings of fact. The Tribunal’s acceptance of the AFP’s claims regarding the application of s 22(1)(a)(ii), including over all the parts of the Report identified in the preceding paragraph, demonstrates that it proceeded on the basis of a misunderstanding of the operation of s 22(1)(a)(ii), and that it misapplied that provision at [84] of its reasons.
The point of s 22(1)(a)(ii) is to exclude from documents material that is wholly outside the scope of, and irrelevant to, an access request. It is not to conceal from an FOI applicant information that happens to mention or relate to other topics, that may be incidentally revealed or inferred from parts of the document that contain material that is within the scope of the request and related to the subject matter of the request.
In submissions filed with leave after the oral hearing of the matter, the AFP submitted that the Tribunal’s reasons at [84] accepted that part of the Report was irrelevant to Mr Bachelard’s FOI request. Since the Tribunal did not identify which parts of the Report were irrelevant, and said that it accepted the submissions of the AFP about s 22(1)(a)(ii), the “parts” which it found to be irrelevant must have been all of those that had been identified by the AFP as parts of the Report to which s 22(1)(a)(ii) applied. The AFP submitted that those findings involved “factual assessments for the Tribunal to make” that were “not vitiated by legal unreasonableness or other error of law”. I do not accept this submission. In my view, the Tribunal’s findings that all the identified parts of the Report were covered by s 22(1)(a)(ii) were not reasonably open on a proper understanding of the operation of that section.
Conclusion in relation to ground 8
For these reasons, I would uphold Mr Bachelard’s eighth ground of appeal.
Nothing in what has been said above should be taken as expressing any view about whether some or all of the parts of the Report which the Tribunal held to be covered by s 22(1)(a)(ii) contain exempt matter. That is a matter to be reconsidered by the Tribunal.
FURTHER OBSERVATIONS ABOUT PROVIDING EDITED DOCUMENTS
Several of Mr Bachelard’s grounds of appeal have involved complaints about the approach of the Tribunal to the application of s 22(1) of the FOI Act. I make the following general observations about the approach to s 22(1) of the FOI Act and the provision of edited copies of documents which it contemplates.
First, agencies (and the Tribunal) dealing with FOI requests generally should not make any assumption that an FOI applicant would not wish to receive an edited copy of a document – even a very heavily edited copy – if they determine that access should not be provided to the document in its entirety.
No doubt the provision of only heavily redacted versions of the Report and the Statements might fail to provide Mr Bachelard with much of the substantive information that he may have hoped to receive, but that is not a reason to refuse to provide access to an edited copy of the Statements if that is both possible and reasonably practicable, unless it were “apparent” that Mr Bachelard “would decline access to the edited copy”: see FOI Act, s 22(1)(d).
In the present case, there was no reason to suppose that Mr Bachelard would not wish to receive access to the documents he requested to the greatest extent permitted under the FOI Act. It is not possible to know for certain what he would have said had he been asked, but it may be inferred that Mr Bachelard was keen to have access to as much of the Statements as he could obtain – even if it turned out that he was disappointed with the receipt of only a very heavily redacted document.
Secondly, the objects of the FOI Act are promoted by the provision of documents pursuant to the FOI Act to the greatest extent possible, even if the operation of exemptions means that the edited version of a document that is ultimately provided is heavily redacted. Even the release of only relatively formal or formulaic parts of a document may well provide some information to an FOI applicant that may be of interest to them.
Thirdly, and relatedly, in cases where some of the substantive content of a document can be released but other parts are said to contain exempt matter, the disclosure of an edited copy of the document to the FOI applicant may provide them with context that may allow them to make more targeted and relevant submissions in relation to the parts of the document which are said to contain exempt matter. For example, knowledge relating to parts of the document that are disclosed may be utilised by an FOI applicant as the basis for making submissions in relation to exemptions claimed over other parts of the document. An FOI applicant who has received access to an edited copy of a document as the result of an agency decision, for example, may be in a better position to make arguments about why other parts of the same document are unlikely to be exempt. Whether that is so will depend on the particular document or documents in question in each case.

The arguments which an astute FOI applicant might raise in their own interests may include arguments that would not necessarily occur to a decision-maker, or to an agency attempting to resist disclosure of documents. For example, ostensibly formulaic information in a witness statement identifying how it was produced or what the maker of the statement was told, if known to an FOI applicant, might potentially be deployed in support of an argument that a claimed exemption does not apply. The decision-maker may or may not ultimately find such arguments compelling, but the more information is disclosed to an FOI applicant, the more likely such arguments are to be raised and properly considered.
Fourthly, even if the provision of an edited copy of a document does not provide an FOI applicant with much of the substantive information that they seek, the release of an edited version which makes clear what parts of the document contain exempt matter and which do not will generally provide a greater degree of transparency about the operation of the FOI Act itself.
Finally, because an FOI applicant will always be at a disadvantage when arguing for the release of documents the content of which is wholly or partly unknown to them, the Tribunal should be astute to try to consider what issues an FOI applicant might have identified, and what submissions they might have wished to make, if they had been aware of the content of documents over which exemptions are claimed. In order to afford a fair hearing to the agency, it may be necessary for the Tribunal to raise such issues and hear argument on them in the absence of the FOI applicant or their representatives.
RELIEF
Conclusions reached to this point
For the reasons given above, I consider that each of grounds 1, 2, 4, 5, 6 and 8 should be upheld. I have not found it necessary to determine grounds 3 or 7 (or to determine all of the arguments advanced in relation to ground 1).
It follows from my reasoning above that various aspects of the Tribunal’s decision were affected by error, namely:
(1)In relation to the confidential source exemption in s 37(1)(b) of the FOI Act, the Tribunal erred in misunderstanding the legal effect of the confidentiality regime created by s 60A of the AFP Act and this affected the Tribunal’s reasons in relation to the application of s 37(1)(b) to both the Statements and the Report. (Ground 1; see [115]-[136] above.) The Tribunal’s misunderstanding of s 60A of the AFP Act also affected its consideration of the exemption provided for in s 47F of the FOI Act, (see [238] above).
(2)Also in relation to the confidential source exemption, the Tribunal erred in failing to consider and determine whether it was possible to give access to edited copies of the Report or the Statements in which identifying information was redacted, as required by s 22(1) of the FOI Act. This error affected the Tribunal’s reasons and conclusion in relation to the application of s 37(1)(b) of the FOI Act to both the Statements and the Report. (Ground 2; see [139]-[181] above.)
(3)In relation to s 47E(c) and (d), the Tribunal denied Mr Bachelard procedural fairness in relation to the Statements, by determining that they were exempt under s 47E, when the AFP had not relied upon that ground before the Tribunal, and the Tribunal had not put Mr Bachelard on notice that it intended to decide an aspect of the case on the basis of that provision. This error directly affected the Tribunal’s reasons and conclusion in relation to the application of s 47E to the Statements, but also indirectly affected (at least) the Tribunal’s conclusions with respect to the application of s 47E to the Report. (Ground 4; see [182]-[211] above.)
(4)Also in relation to s 47E(c) and (d), the Tribunal erred in failing to consider and determine whether it was possible to give access to edited copies of the Report or the Statements in which identifying information was redacted, as required by s 22(1) of the FOI Act. (Ground 5; see [212]-[224] above.)
(5)In relation to the personal information conditional exemption in s 47F of the FOI Act, the Tribunal misapplied s 47F by proceeding on the basis that there was no public interest to be served by the release of the Statements or the Report, contrary to the recognition of that public purpose in the objects of the FOI Act. This error affected the Tribunal’s reasons and conclusion in relation to the application of s 47F to both the Statements and the Report. (Ground 6; see [227]-[237] above.) The error must also have affected the Tribunal’s assessment of the public interest in relation to the conditional exemptions under ss 47E(c) and (d) and 47F. (See [240] above.)
(6)The Tribunal erred in finding that parts of the Report were irrelevant and outside the scope of the request, by misconstruing the request. Further, insofar as the Tribunal found that all of the parts of the Report which the AFP claimed were irrelevant were outside the scope of the request, it is to be inferred that it misunderstood or misapplied s 22 in a manner that amounted to applying a wrong test. (Ground 8; see [242]-[283] above.)
The effect of these conclusions is that the Tribunal’s consideration of each of the exemptions relied upon was affected by legal error in various ways.
None of these conclusions dictates that it was not open to the Tribunal to find that at least parts of the documents contained exempt matter by reason of one or more of the exemptions relied upon. The assessment of the merits of the AFP’s arguments regarding each of the exemptions is a task that should be undertaken afresh.
Remittal to the ART for reconsideration
Although the appeal to this Court lies only on a question of law, if the Court considers that a relevant error has been established, it has power either to remit the matter to the Tribunal (now, the ART) or to determine the matter for itself: AAT Act, s 44(6). The Court may make findings of fact that are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law) itself: see AAT Act, s 44(7).
In the circumstances of the present case, having regard to the considerations identified in s 44(7) of the AAT Act, I consider that the better course is to remit the matter to the ART to be determined completely afresh, rather than this Court itself making findings of fact and determining what it considers to be the correct or preferable decision on the review.
The hearing before the Tribunal miscarried in various ways which I consider significant. The proceedings in the Tribunal raised several issues (three exemptions and the application of s 22(1)(b)(ii)). If this Court were to re-determine these issues for itself, it would not merely be making minor adjustments to the conclusions reached by the Tribunal, but would effectively be re-exercising the review function of the Tribunal from the beginning, and both the parties would need to be given the opportunity to adduce further evidence. It would not be more efficient or expeditious for this Court to make the necessary findings of fact. In any event, given the potential for differences of opinion in relation to each of those issues, and the unavailability of any further appeal or review as of right from a decision of the Full Court, it is preferable that that exercise be performed afresh by the ART.
Moreover, the issue of what redactions should be made, if the Court were to conclude that there were at least parts of the documents that could be disclosed without disclosing exempt matter, is an exercise that could only be performed on the basis of further submissions, and perhaps even some further evidence, to be received from the AFP. It is more appropriate that the ART undertake these tasks.
CONCLUSION
The Court should make orders as follows:
(1)The appeal be allowed.
(2)The decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Administrative Review Tribunal (differently constituted) to be determined in accordance with the law.
(3)The respondent pay the applicant’s costs of the appeal.

I certify that the preceding two hundred and fifty-three (253) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald.
Associate:
Dated: 3 February 2025

Appeal from:	Bachelard and Australian Federal Police (Freedom of Information) [2024] AATA 312
File number(s):	VID 258 of 2024
Judgment of:	WIGNEY, THAWLEY AND MCDONALD JJ
Date of judgment:	3 February 2025
Catchwords:	ADMINISTRATIVE LAW – Freedom of Information Act 1982 (Cth) (FOI Act) – request for access to three witness statements and a professional standards report arising from an investigation conducted under Part V of Australian Federal Police Act 1979 (Cth) – appeal from decision of Administrative Appeals Tribunal (Tribunal) under s 44 of Administrative Appeals Tribunal Act 1975 (Cth) – Tribunal found that all documents sought by applicant were exempt or conditionally exempt under FOI Act – whether Tribunal misconstrued and/or misapplied s 37(1)(b) of FOI Act in finding that providers of witness statements were “confidential sources of information” – whether Tribunal erred in failing to consider whether disclosure of edited copies of statements and report, without disclosing a confidential source, was possible and reasonably practicable under s 22(1) of FOI Act – whether Tribunal erred in law in finding that witness statements were exempt documents under s 47E(c) and (d) in circumstances where respondent had not relied on those statutory provisions in relation to the statements – whether Tribunal erred in failing to consider whether disclosure of edited copies of statements and report, without disclosing personal information which it would be unreasonable to disclose, was possible and reasonably practicable under s 22(1) of FOI Act – whether Tribunal misconstrued and/or misapplied s 47F of FOI Act in finding that statements and report contained personal information which it would be unreasonable to disclose – whether Tribunal misconstrued and/or misapplied “public interest” test in s 11A(5) of FOI Act – whether Tribunal erred in finding that parts of report were irrelevant and outside scope of applicant’s request – appeal allowed – matter remitted to Administrative Review Tribunal for re-hearing.
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 44 Administrative Review Tribunal Act 2024 (Cth) Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) Schedule 2, item 25(2) Australian Federal Police Act 1979 (Cth) ss 4, 6, 8, 40ZA, 60A, Pt V Freedom of Information Act 1982 (Cth) ss 3, 4, 11A, 15, 21, 22, 24, 24A, 27A, 31B, 32, 37, 47E, 47F, 54L, 57A, 58B, 58E, 60A, 61, 63 Veterans’ Entitlements Act 1986 (Cth) s 24
Cases cited:	Accident Compensation Commission v Croom [1991] 2 VR 322 Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101; [2004] FCAFC 237 Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 Department of Health v Jephcott (1985) 8 FCR 85; [1985] FCA 536 Grant v Repatriation Commission (1999) 57 ALD 1; [1999] FCA 1629 Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Jorgensen v Australian Securities and Investments Commission (2004) 208 ALR 73; [2004] FCA 143 Korat v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 303 FCR 261; [2024] FCAFC 59 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 Luizaich v United States 435 F Supp 31 (D Minn 1977) Marks v Beyfus (1890) 25 QBD 494 Matthews v Chicory Marketing Board (Vict) (1938) 60 CLR 263 McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423; [2006] HCA 45 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 Re Croom v Accident Compensation Commission (1989) 3 VAR 441 Roads and Traffic Authority (NSW) v Peak [2007] NSWCA 66 Roberts-Smith v Fairfax Publications Pty Ltd (No 41) [2023] FCA 555 Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 Waterford v The Commonwealth (1987) 163 CLR 54 XYZ v Victoria Police (2010) 33 VAR 1; [2010] VCAT 255
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	302
Date of last submission/s:	Applicant: 28 August 2024 Respondent: 9 September 2024
Date of hearing:	19 August 2024
Counsel for the Applicant:	Mr EJ Batrouney
Solicitor for the Applicant:	Thomson Geer
Counsel for the Respondent:	Mr RC Knowles KC and Mr NDJ Swan
Solicitor for the Respondent:	Sparke Helmore Lawyers

ORDER MADE BY:	WIGNEY, THAWLEY AND MCDONALD JJ
DATE OF ORDER:	3 FEBRUARY 2025