Brooks and Secretary, Department of Defence (Freedom of information) - [2017] AATA 258

Brooks and Secretary, Department of Defence (Freedom of information) [2017] AATA 258 (14 February 2017)
Division:Freedom of Information Division
File Number(s): 2016/0113
Re:Aloysia Brooks
APPLICANT

AndSecretary, Department of Defence
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:14 February 2017
Place:Sydney

The decision under review, being the decision of the Secretary, Department of Defence, made 20 August 2014, to give notice to Ms Brooks in accordance with section 25 of the Freedom of Information Act 1982 (Cth) is affirmed.
..................................[sgd]......................................
Deputy President J W Constance
CATCHWORDS
FREEDOM OF INFORMATION – request for access – refusal to confirm or deny existence of document – exempt document under section 33 – security of the Commonwealth – defence of the Commonwealth – international relations of the Commonwealth – mosaic theory – whether section 25(2) notice can be given only if exempt document in existence – whether section 25(2) only requires consideration of a hypothetical document – decision affirmed
LEGISLATION
Freedom of Information Act 1982 (Cth) ss 4(5), 11, 25, 26(2), 33, 93A
CASES
Department of Health v Jephcott (1985) 8 FCR 85
iNova Pharmaceuticals (Australia) Pty Ltd and Secretary, Department of Health and Ageing [2010] AATA 542
Re Hocking and Department of Defence [1987] AATA 602
Re Slater and Cox (Director-General of Australian Archives) [1988] AATA 110
Secretary, Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Ltd [2010] FCA 1442

SECONDARY MATERIALS
Explanatory Memorandum, Freedom of Information Bill 1981 (Cth)
Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982

REASONS FOR DECISION
Deputy President J W Constance
14 February 2017
INTRODUCTION

In 2014 Ms Brooks requested the Secretary, Department of Defence, to give her access to specified documents in accordance with the provisions of the Freedom of Information Act 1982 (Cth) (“the Act”).
In response the Secretary notified Ms Brooks that “the mere acknowledgement that a particular document [such as those sought by her] exists, or denying it exists, will… cause damage similar to disclosing the document itself.”[1] It was claimed that a document setting out such an acknowledgement or denial would be a document exempted from production under section 33 of the Act. Section 33 refers to the exemption of documents affecting national security, defence or international relations.
[1] Exhibit R1 p.28.
Ms Brooks has applied to the Tribunal to review the Secretary’s decision.
For the reasons which follow the decision under review will be affirmed.
BACKGROUND
The parties have agreed on the facts set out in the following 13 paragraphs, which are reproduced from the Statement of Facts, Issues and Contentions of the Respondent dated 9 May 2016. The reference to documents prefixed “T” is a reference to documents contained in exhibit R1.
The Request
1.    On 10 July 2014, the Applicant submitted a request to the Department of Defence (Defence) under the Freedom of Information Act 1982 (FOI Act) seeking access to the following:
“...any and all documents relating to the presence and activities of members of the United States Joint Special Operations Group (JSOC) in Australia. This includes any training that JSOC has provided to the Australian military, police or intelligence organisations, including the 4 Squadron, SAS and ASIS...” (T3)
2.    On 28 July 2014, following a request consultation process under s 24AB of the FOI Act (T4), the Applicant agreed to limit her request to the following amended Items 1 and 2 (the Request):
1."Briefs or correspondence to the CDF or Minister that outline any aspect of United States Joint Special Operations Group (JSOC) presence or activities in Australia, including, but not limited to Swan Island, Darwin and other bases or training facilities, from 1 January 2005 onwards. (Item 1)
2.In addition, any documents regarding the training of SAS 4 Squadron by JSOC in interrogation, or other intelligence gathering techniques, whether on Australian soil, or elsewhere (including Africa or the US). (Item 2)
(collectively, the Requested Documents)
The Primary Decision
3. On 20 August 2014, the Respondent made a decision in relation to the Request (T5). In summary, the Respondent decided that it could neither confirm nor deny the existence of the Requested Documents without disclosing information which, if included in a document, would cause the last mentioned document to be an exempt document by virtue of s 33 of the FOI Act. The Respondent gave the Applicant written notice under s 25(2) of the FOI Act which included a statement that if any of the Requested Documents did exist, they would be exempt under s 33 of the FOI Act.
The Internal Review Decision
4.    On 11 September 2014, the Applicant sought internal review of the decision of 20 August 2014 (T6).
5. On 10 October 2014, the internal review decision maker refused the Request under s 25 of the FOI Act (T7). The internal review decision maker did not differ in his reasoning to the first decision maker.
The Application to the Information Commissioner
6.    On 13 October 2014, the Applicant applied to the Information Commissioner for review of the Respondent’s decision to refuse the Request (T8).
7.    On 15 October 2014 the Respondent was informed by the Office of the Australian Information Commissioner (OAIC) of the application for review (T9). On 16 October 2014, the OAIC wrote to the Respondent to clarify certain matters in relation to the Applicant’s application for review (T10).
8.    On 10 February 2015, the Respondent received a letter from the OAIC explaining its intention to finalise the application dated 13 October 2014 under s 54W(b) of the FOI Act, allowing the Applicant to seek review at the Administrative Appeals Tribunal (AAT) (T11). The OAIC provided the Respondent with the opportunity to comment on the proposed course of action.
9.    On 15 February 2015, the Respondent sent a letter to the OAIC advising that it had no objection to the proposed approach to allow the Applicant to seek review in the AAT of the Respondent’s decision made on 10 October 2014 (T12).
10. On 16 February 2015, the OAIC wrote to the Respondent to confirm that the only decision in respect of which the Applicant seeks review is the Respondent’s decision of 10 October 2014 (T13).
11. On 15 April 2015, the OAIC wrote to the Applicant to advise that it had decided under s 54W(b) of the FOI Act not to undertake a review of the Respondent’s decision to refuse the Request and to allow the Applicant to apply directly to the AAT for review of that decision (T14).
12. On 8 January 2016, the applicant applied to the AAT for review the [sic] Respondent’s decision to refuse the Request (T1) and an extension of time in which to lodge that application.
13. On 22 January 2016, the Respondent consented to the extension of time.
LEGISLATION
Section 25 of the Freedom of Information Act 1982 (Cth) provides:
25 Information as to existence of certain documents
(1) Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence or non‑existence of a document where information as to the existence or non‑existence of that document, if included in a document of an agency, would cause the last‑mentioned document to be:
(a) an exempt document by virtue of section 33…
(2) If a request relates to a document that is, or if it existed would be, of a kind referred to in subsection (1), the agency or Minister dealing with the request may give notice in writing to the applicant that the agency or the Minister (as the case may be) neither confirms nor denies the existence, as a document of the agency or an official document of the Minister, of such a document but that, assuming the existence of such a document, it would be:
(a) an exempt document by virtue of section 33…
(3) If a notice is given under subsection (2) of this section:
(a) section 26 applies as if the decision to give the notice were a decision referred to in that section; and
(b) the decision is taken, for the purposes of Part VI, to be a decision refusing to grant access to the document in accordance with the request referred to in subsection (2) of this section, for the reason that the document would, if it existed, be:
(i) an exempt document by virtue of section 33…
Section 26(2) provides:
26 Reasons and other particulars of decisions to be given
(2) A notice under this section is not required to contain any matter that is of such a nature that its inclusion in a document of an agency would cause that document to be an exempt document.
Section 33 provides:
33 Documents affecting national security, defence or international relations
A document is an exempt document if disclosure of the document under this Act:
(a) would, or could reasonably be expected to, cause damage to:
(i) the security of the Commonwealth;
(ii) the defence of the Commonwealth; or
(iii) the international relations of the Commonwealth; or
(b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
Note: See also subsection 4(10).
Section 4(5) of the Act provides:
(5) Without limiting the generality of the expression security of the Commonwealth, that expression shall be taken to extend to:
(a) matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth; and
(b) the security of any communications system or cryptographic system of the Commonwealth or of another country used for:
(i) the defence of the Commonwealth or of any country allied or associated with the Commonwealth; or
(ii) the conduct of the international relations of the Commonwealth.
GUIDELINES ISSUED BY THE INFORMATION COMMISSIONER
The Commissioner has issued guidelines for the purposes of the Act.[2] Regard must be had to these guidelines in “the performance of a function, or the exercise of a power” under the Act.[3]
[2] The power to issue these guidelines is provided by section 93A of the Act.
[3] Subsection 93A(2).
The Guidelines provide, in part:
Refusing to confirm or deny existence of a document
3.93     The act of confirming or denying the existence of a document can sometimes cause damage similar to disclosing the document itself. For example, merely knowing that an agency has a current telecommunications interception warrant in connection with a specific telephone service would be sufficient warning to a suspect who could modify their behaviour and possibly undermine an investigation into serious criminal activity.
3.94     Section 25(2) allows an agency or minister to give an applicant notice in writing that does not confirm or deny the existence of a document but instead tells the applicant that, if it existed, such a document would be exempt. This option is only available in relation to the exemptions in ss 33 (documents affecting national security, defence or international relations), 37(1) (documents affecting enforcement of law and protection of public safety) and 45A (Parliamentary Budget Office documents). The other requirements of a s 26 notice still apply (see [3.145] below).
3.95     Agencies and ministers should use s 25 only in exceptional circumstances. For the purposes of IC review, a notice under s 25 is deemed to be notice of a decision to refuse access on the grounds that the document sought is exempt under s 33, 37(1) or 45A, as the case may be (s 25(2)).
Security of the Commonwealth
5.27     A decision maker must be satisfied that damage to the security of the Commonwealth would be caused by disclosure of the information under consideration. The claim has been upheld in the following situations:
(b) The disclosure of a defence instruction on the Army’s tactical response to terrorism and procedures for assistance in dealing with terrorism would pose a significant risk to security by revealing Australia’s tactics and capabilities.[4]
[4] Re Hocking and Department of Defence [1987] AATA 602.
Defence of the Commonwealth
5.28     The Act does not define ‘defence of the Commonwealth’. Previous AAT decisions indicate that the term includes:
·meeting Australia’s international obligations
·ensuring the proper conduct of international defence relations
·deterring and preventing foreign incursions into Australian territory
·protecting the Defence Force from hindrance or activities which would prejudice its effectiveness.
5.29     Damage to the defence of the Commonwealth is not necessarily confined to monetary damage (see paragraph 5.25 above). However, in all cases, there must be evidence that the release of the information in question will be likely to cause the damage claimed.
International relations
5.30     The phrase ‘international relations’ has been interpreted as meaning the ability of the Australian Government to maintain good working relations with other governments and international organisations and to protect the flow of confidential information between them. The exemption is not confined to relations at the formal diplomatic or ministerial level. It also covers relations between government agencies.
5.31     The mere fact that a government has expressed concern about a disclosure is not enough to satisfy the exemption, but the phrase does encompass intangible damage, such as loss of trust and confidence in the Australian Government or one of its agencies. The expectation of damage to international relations must be reasonable in all the circumstances, having regard to the nature of the information; the circumstances in which it was communicated; and the nature and extent of the relationship. There must also be real and substantial grounds for the conclusion that are supported by evidence. These grounds are not fixed in advance, but vary according to the circumstances of each case.
5.32     For example, the disclosure of a document may diminish the confidence which another country would have in Australia as a reliable recipient of its confidential information, making that country or its agencies less willing to cooperate with Australian agencies in future. On the other hand, the disclosure of ordinary business communications between health regulatory agencies revealing no more than the fact of consultation will not, of itself, destroy trust and confidence between agencies.
The mosaic theory
5.33     Normally when assessing the potential harm in releasing a document, a decision maker looks at the contents of the document in question. But when evaluating potential harmful effects of disclosing documents that affect Australia’s national security, defence or international relations, decision makers may take into account the intelligence technique usually known as the ‘mosaic theory’. This theory holds that individually harmless pieces of information, when combined with other pieces, can generate a composite — a mosaic — that can damage Australia’s national security, defence or international relations. Therefore, decision makers may need to consider other sources of information when considering this exemption.
5.34 The mosaic theory does not relieve decision makers from evaluating whether there are real and substantial grounds for the expectation that the claimed effects will result from disclosure. It is a question of fact whether the disclosure of the information, alone or in conjunction with other material, could reasonably be expected to enable a person to ascertain the identity or existence of a confidential source. This is not always simple. For example, in Re Slater and Cox[5] the evidence that persuaded the AAT of a ‘mosaic effect’ claim was an analysis of 22 thirty-five-year-old documents.
[5] Re Slater and Cox (Director-General of Australian Archives) [1988] AATA 110.
ISSUE FOR DETERMINATION
The issue for determination is whether the decision made on 20 August 2014, to give Ms Brooks notice under section 25 of the Act, is the preferable decision.
MS BROOKS’ ARGUMENT
It was argued on behalf of Ms Brooks that in deciding this issue the Tribunal must engage in a two-step process:
(i)it must be determined that Ms Brooks’ “request related to documents that were, or would be if they existed, exempt from disclosure pursuant to s 33”; and
(ii)if so, would “the disclosure of the existence or non-existence of certain documents… of itself cause the Respondent’s response to be exempt by virtue of s 33 of the Act”. [6]
[6] Applicant’s Statement of Facts, Issues and Contentions dated 24 June 2016, paras 3 & 4.
THE SECRETARY’S ARGUMENT
On behalf of the Secretary it was argued that the Act does not require a decision-maker to make the first determination set out above and that the only enquiry which should be undertaken is that set out in subparagraph (ii).
THE EVIDENCE OF BRIGADIER KHAN
The Secretary filed an affidavit of Brigadier Khan sworn 6 May 2016. He also gave oral evidence.
Some of the information contained in the affidavit was highly sensitive and classified. The Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) restricting publication of the classified information. As a consequence neither Ms Brooks nor her legal representatives have had access to this information.
On the basis of the facts contained in Brigadier Khan’s affidavit I am satisfied that he is qualified to express the opinions set out in the affidavit and expressed in the evidence he gave.
In the opinion of Brigadier Khan the possible consequences of confirming or denying the documents requested by Ms Brooks must be considered in the context of the current threat environment to Australia. In his opinion the sources of such threats include military forces, foreign intelligence services, violent extremist groups, domestic terrorism, issue motivated groups and criminal organisations. The level of threat has materially increased in recent years.
Brigadier Khan gave evidence as to the nature of “mosaic analysis” referred to in the Commissioner’s Guidelines. He specified three significant and potentially harmful ways in which mosaic analysis could be used against Australia’s interests and which are relevant to this matter. He said that:
… when considering the possible public disclosure of information relating to military capabilities and key relationships, it is necessary in my view to consider whether that information is capable of meaningfully contributing to an understanding by threat elements of Australia’s intelligence and military activities, and those of our coalition partners. If it is, and if that increased understanding could be exploited to the real detriment of Australia’s defence and security, or put at risk the lives of Australian and allied personnel, then that information ought be protected from disclosure.[7]
[7] Exhibit R2 para 40.
The United States is Australia’s most important ally in matters of defence and security and has given Australia privileged access to its sensitive and important military and security assets, capabilities and intelligence. The United States is extremely diligent and sensitive about maintaining the confidentiality of its classified information, capabilities and activities. The manner of the handling of sensitive information between the two countries has been formalised by an Agreement.
As to the consequences of a breach of the requirements of this agreement, Brigadier Khan said:
Australia’s military and security relationship with the US is built on trust that has been developed over many years. That trust, which has been hard won, could be seriously undermined if Defence were to fail to meet, or be perceived it may not meet, its US counterparts’ expectations regarding the handling of sensitive US information.[8]
[8] Exhibit R2 para 56.

During the closed hearing, Brigadier Khan gave additional evidence and further explained the bases for his opinions.
DISCUSSION
What is the correct interpretation of section 25 of the Act?
Context of the section
As a starting point, it is necessary to consider the context in which the section appears.
Subsection 3(1) sets out the objects of the Act as follows:
The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
Subsection 3(4) provides:
The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
Section 11 gives every person a legally enforceable right to obtain access in accordance with the Act to agency documents and official documents of a Minister. Certain documents are exempt from the right given by this section. The statutory exemptions are set out in Part IV Division 2.
Section 25 appears in Part III of the Act which deals with access to documents. It does not provide an exemption of the nature of those set out in Part IV Division 2. It provides that, in the stated circumstances, an agency or a Minister is not required to give information as to the existence or non-existence of a document. The section makes clear that nothing in the Act shall be taken to require an agency or Minister to give such information.
Subsection (2) of section 25 then provides the agency or Minister the power to give notice (in the circumstances set out in the subsection) that the agency or Minister (as the case may be) neither confirms nor denies the existence of a requested document.
Interpretation
I accept the argument of the Secretary that subsection 25(2) “does not, by its terms, require the relevant agency or Minister to in fact determine that the requested documents, if they exist, would be exempt under those provisions. Rather, it is enough that a response confirming or denying the existence of the requested documents would itself be exempt under those provisions – if the agency or Minister is satisfied of that, they are entitled to provide a response in the terms set out in s 25(2).” [9]
[9] Respondent’s Outline of Submissions dated 22 September 2016, para. 11.
It is the fact of denial or confirmation of the existence of documents, if that confirmation or denial was itself recorded in a document, which must meet the requirements of section 33 to be an exempt document. If the requirements of section 33 are met in these circumstances, the agency or Minister is empowered to give the subject notice. At no stage of this process is the agency or Minister required to consider whether there are, in fact, documents which themselves are exempt under section 33. Furthermore, subsection 25(2) does not require that a “document” be assumed to exist and then be subjected to the requirements of section 33.
As Counsel for the Secretary correctly pointed out, the interpretation for which Ms Brooks argues would require a decision-maker to construct an imaginary document, including the information it may contain, and then determine whether this hypothetical document would be exempt under section 33. I do not accept that this was the intention of Parliament.
Decided cases
In iNova Pharmaceuticals (Australia) Pty Ltd and Secretary, Department of Health and Ageing[10] the Tribunal adopted the two step process for which Ms Brooks argues. I have considered the reasons of the Tribunal very carefully, but I cannot agree with them.
[10] [2010] AATA 542.
The Tribunal’s decision was appealed to the Federal Court.[11] Although Emmett J. did not specifically refer to the interpretation of section 25 by the Tribunal, he said:
Where s 25 is invoked, the agency has no obligation to make any attempt to identify documents that fall within the relevant request. Rather, a response of the kind contemplated by s 25 can be made solely on the basis of the form of the request.[12]
Later in the judgment His Honour said:
Section 25 is concerned with the way in which an agency deals with requests for access. Section 25(1) is not expressed as an exception. Rather, it provides that nothing in the FOI Act is to be taken to require an agency to give information as to the existence or non-existence of a document where information as to the existence or non-existence, if included in a document, would cause such a document to be an exempt document by virtue of s 33… [13] [Original emphasis]
[11] Secretary, Department of Health and Ageing v iNova Pharmaceuticals (Australia) Pty Ltd [2010] FCA 1442.
[12] At para. 8.
[13] At para.53.
The interpretation for which Ms Brooks contends is consistent with what was said by Davies J. in Department of Health v Jephcott [14]:
… s 25(2) does not speak of a notional document. It speaks of a document, to which access is requested, which “is, or if it existed would be, of a kind referred to in sub-section (1)”, that is to say, “an exempt document under section 33 or 33A or sub-section 37(1)”. In open session before the Tribunal, the agency would be entitled to call evidence that, if a document of that type existed, it would be an exempt document by virtue of s 37(1). The agency could rely upon the description of the document in the request for access and may be able to adduce evidence that documents of that type relate to the enforcement or administration of the law and are written and received in confidence. In confidential session before the Tribunal, the agency may be able to adduce evidence that the document does exist and that the grant of access to it would enable the applicant for access to ascertain the existence or identity of a confidential source of information in relation to the enforcement or administration of the law.
The essential point that I make is that s 25(2) does not refer to a purely notional or fictional document. It refers to a document which either exists and is, or if it existed would be, an exempt document by virtue of ss 33, 33A or 37(1).
…
Section 25(2) does not authorise the giving of notice under the subsection unless the agency or Minister is satisfied that the document is, or if it existed would be, of the kind referred to in s 25(1), namely, an exempt document by virtue of ss 33, 33A or 37(1). Satisfaction as to this may be gained from several sources, including an examination of any relevant file.
[14] (1985) 8 FCR 85 at paras 91-92.
However, in the same matter Forster J. took a different view:
Section 25 is in some respects rather curious in that it provides for the notional creation of a hypothetical document. In this case it is a document of the agency including information as to the existence or non-existence of a letter or a memorandum of some other sort recording information given by Mrs Butler about Mrs Jephcott and Mrs Whitehead. If such a hypothetical document existed and was an exempt document by virtue of s 37(1) then the Department was entitled to give the answer which it gave neither admitting nor denying the existence of any record of information given by Mrs Butler. It is rightly conceded that ss 33 and 33A are not relevant to the matter in hand. So far as s 37(1) is concerned, s 37(1)(b) is the only relevant subsection. If the hypothetical document to which I have referred 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” then the hypothetical document would be exempt and pursuant to s 25(2) the Department was entitled to give notice to Mrs Jephcott as it did, neither confirming nor denying the existence of records of information given by Mrs Butler about Mrs Jephcott and Mrs Whitehead.[15]
[15] At para.88.
The third member of the Full Court did not consider the point. For the reasons I have given I respectfully prefer the approach set out by Forster J.
The Explanatory Memorandum
Counsel for the Secretary has referred me also to the Explanatory Memorandum to the Act. In relation to subsection 25(2) it reads:
Clause 25 – Information as to existence of certain documents
Sub-clause 25(1) entitles an agency or Minister to withhold information as to the existence or non-existence of a document if disclosure of that information would be prejudicial to the public interest for a reason specified in sub—clause 33(1) or would affect law enforcement for a reason specified in sub-clause 37(1).
Sub-clause 25(2) deals with the case where a request is made for access to a document and the document is or, if it existed, would be of such a kind that information about its existence might be withheld under sub-clause 25(1). In such a case, the agency or Minister dealing with the request may notify the applicant that the existence of the document is neither confirmed nor denied but that, if the document existed, it would be an exempt document. Reasons for giving such a notice must be furnished in accordance with clause 26, and the giving of such a notice is to be treated for the purpose of internal review under clause 54 or appeal to the Administrative Appeals Tribunal under clause 55 as if it were a decision refusing access to a document. (emphasis added)
The reference to a document being “of such a kind” supports the view that an enquiry into the nature of a document itself, or a hypothetical document, is not required.
Would a document which included information as to the existence or non-existence of the documents sought by Ms Brooks, be an exempt document by virtue of section 33 of the Act?
Having heard Brigadier Khan give evidence, both in the open and closed sessions, I am satisfied that he was an honest witness and well-qualified by his experience to give the evidence he did and to express his opinions relevant to this issue. I accept his evidence.
On the basis of the evidence of Brigadier Khan I am satisfied that a document of such a kind as described above could reasonably be expected to cause damage to:
·the security of the Commonwealth; and
·the defence of the Commonwealth; and
·the international relations of the Commonwealth.
On this basis the document would be an “exempt document” in accordance with section 33 of the Act.
CONCLUSION
The decision under review, being the decision of the Secretary, Department of Defence, made 20 August 2014, to give notice to Ms Brooks in accordance with section 25 of the Freedom of Information Act 1982 (Cth) will be affirmed.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

..................................[sgd]......................................
Associate
Dated: 14 February 2017

Date(s) of hearing: 6 October 2016

Counsel for the Applicant: Ms B Tronson

Counsel for the Respondent: Mr J Davidson

Solicitors for the Respondent: Australian Government Solicitor

Date(s) of hearing:	6 October 2016
Counsel for the Applicant:	Ms B Tronson
Counsel for the Respondent:	Mr J Davidson
Solicitors for the Respondent:	Australian Government Solicitor