Craig and Secretary, Department of Foreign Affairs and Trade (Freedom of information)
[2023] AATA 2785
•28 August 2023
Craig and Secretary, Department of Foreign Affairs and Trade (Freedom of information) [2023] AATA 2785 (28 August 2023)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2021/5841
Re:Anthony Craig
APPLICANT
AndSecretary, Department of Foreign Affairs and Trade
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:28 August 2023
Place:Melbourne
The Tribunal affirms the decision under review.
......................[sgd]..................................................
Deputy President Britten-Jones
CATCHWORDS
FREEDOM OF INFORMATION – review of decision to refuse access to a diplomatic communication sent from Australian Embassy in Jakarta to the Department of Foreign Affairs in Canberra – whether disclosure of the document would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth – diplomatic communications as recorded in the document are subject to conventions of confidentiality – disclosure of the document would breach confidence and trust between the governments of Australia and Indonesia – the document is an exempt document under s 33(a)(iii) of the Freedom of Information Act – decision under review is affirmed
LEGISLATION
Freedom of Information Act 1982 (Cth)
CASES
Arnold v Queensland (1987) 73 ALR 607
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Commonwealth v Hittich (1994) 53 FCR 152
Fernandes v National Archives [2014] AATA 180
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Glencore International v Commissioner of Taxation [2019] HCA 26
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645
Maher and Attorney-General’s Department (1985) 7 ALD 731Secretary, Department of Prime Minister and Cabinet and Summers [2019] AATA 5537
SECONDARY MATERIALS
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (February 2022)
REASONS FOR DECISION
Deputy President Britten-Jones
28 August 2023
The applicant, Mr Craig, seeks access to a document held by the respondent under the Freedom of Information Act 1982 (the FOI Act). It is a three page cable dated 16 November 2007 from the respondent’s Australian Embassy in Jakarta, Indonesia to its head office in Canberra. I will refer to the document in issue as the DFAT Cable. The DFAT Cable has been partially released to the applicant. The respondent, by letter dated 30 November 2020, denied access to the unredacted document on the basis it is exempt from disclosure under ss 33(a)(iii), 33(b) and 47E(d) of the FOI Act. The claim for exemption under s 47E(d) was not pressed by the respondent. At the hearing, the applicant confirmed that he is not pressing for the release of any information that would come within s 33(b). He maintains that parts of the document are not exempt under s 33(a)(iii) and should be released.
Under s 33(a)(iii) a document is an exempt document if disclosure of the document would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth. The respondent relies upon an open affidavit of Ridwaan Jadwat who is the First Assistant Secretary of the Southeast Asia Maritime Division at the Department of Foreign Affairs and Trade. Mr Jadwat provides his opinion that if the redacted parts of the document were released it would cause damage to the international relations of Australia. Mr Craig disagrees and makes wide ranging contentions about the power of the tribunal upon review. Further, he relies, inter alia, on the information contained in a document which purports to be a United States diplomatic cable dated 21 November 2007 released by WikiLeaks and is the subject of an article published in the Sydney Morning Herald and The Age on 18 December 2010.
Mr Jadwat also affirmed a second affidavit which is the subject of a confidentiality order and which has not been provided to the applicant. Whilst I have read that confidential affidavit, I have not relied upon it for the purpose of making this decision.
Mr Craig provided the Tribunal with a considerable amount of material relating to the events of, and subsequent to, 1975 when five journalists, known as the Balibo Five, were killed in Indonesia. The death of one of those journalists was the subject of a coronial inquest (the Peter’s Inquest) by the New South Wales Deputy Coroner who released her findings on 16 November 2007. Mr Craig informed the Tribunal that he was making the application for Shirley Shackleton, the wife of another one of the journalists killed in Indonesia in 1975. Since making his request for access, Mrs Shackleton has sadly passed away.
The DFAT Cable
A redacted copy of the DFAT Cable has been provided to the applicant. It reveals that the DFAT Cable was sent by a senior career officer with the Department of Foreign Affairs and Trade (DFAT), Dr Justin Lee, Deputy Head of Mission in Jakarta, to Canberra on 16 November 2007. The title is ‘Indonesia: NSW Coroner’s Court Inquest into the death of Brian Peters’. Parts of the document are redacted by reference to either s 33(a)(iii) or s 33(b) of the FOI Act. The unredacted part of the summary says that ‘The Indonesian Government’s position continues to be that the Balibo case is closed and it is not convinced the latest inquest provides any new evidence’. In the body of the DFAT Cable, there is a report of the discussion between officers of DFAT, who included Dr Lee, and Indonesian Government officials. The discussion concerned the implications of the New South Wales Deputy Coroner’s findings in the Peter’s Inquest.
Mr Jadwat said in his affidavit he had read the unredacted DFAT Cable and that the material for which exemption is claimed comprises:
(a)for the most part, information conveyed by Indonesian officials during the discussion; and
(b)in the first paragraph under the summary, the names of the Indonesian officials and information concerning what was said by Australian officials during the discussion.
The US Cable
The purported US Cable dated 21 November 2007 was obtained by Wikileaks and made available to The Sydney Morning Herald which reported its contents on 18 December 2010. The US Cable contains a summary which includes:
An Australian coroner’s report released November 16 accuses the Indonesian Military (TNI) of deliberately “executing” five foreign journalists in East Timor in 1975. An Australian Embassy contact in Jakarta told Pol/C that he has reviewed the conclusions of the report with the GOI [Government of Indonesia].
The US Cable reports the Australian Embassy views as follows:
The Australian Embassy is closely monitoring the case. In a November 21 conversation with Pol/C, Justin Lee of the Australian Embassy said he had reviewed the coroner’s report with the Indonesian government. He had stressed to his Indonesian interlocutors that Australia wanted to work with the GOI carefully on the matter. The Indonesians replied that they also wanted “to help manage” the issue, although they categorically rejected the allegation that Indonesian security forces committed human rights violations or war crimes. Lee noted that the soundings he picked up in private were “much more constructive” than the tenor of some of the public remarks. He added that as far as he knew there were no active duty TNI members implicated in the Balibo incident.
It was reported in the Sydney Morning Herald on 18 December 2010 that:
Secret US diplomatic cables reveal that Australia has declared Yunus Yosfiah – a special forces captain during the 1975 invasion of East Timor - to be “persona non grata”, a sanction that would bar him from entering Australia.
New South Wales Deputy Coroner Dorelle Pinch found in 2007 that Yosfiah had ordered and participated in the murder of the five Australian newsmen at Balibo.
…
Cables sent from the US Embassy in Jakarta confirm that Australian officials worked privately with the Indonesian government in trying to “manage” the political reaction to the NSW coronial finding that the Indonesian military had executed the Balibo five.
In a cable dated November 21, 2007, obtained by WikiLeaks and made available exclusively to The Age, the head of the political section at the Australian embassy in Jakarta, Justin Lee, is reported to have told US officials that he had “reviewed the coroner’s report with the Indonesian government”.
“He had stressed to his Indonesian interlocutors that Australia wanted to work with the GOI [government of Indonesia] carefully on the matter,” the cable says.
“The Indonesians replied that they also wanted ‘to help manage’ the issue, although they categorically rejected the allegation that Indonesian security forces committed human rights violations or war crimes.
“Lee noted that the soundings he picked up in private were ‘much more constructive’ than the tenor of some of the public remarks. He added that as far as he knew there were no active duty TNI (Indonesian army) members implicated in the Balibo incident.”
Mr Jadwat gave oral evidence that the WikiLeaks cable could not be authenticated and that Mr Lee had not said anything publicly about his discussions with Indonesian government officials or US diplomats.
The Evidence of Ridwaan Jadwat
Mr Jadwat deposed in his open affidavit dated 6 May 2022 as follows:
Diplomatic communications
[19] DFAT's functions include managing Australia's relations and communications with overseas governments. At overseas consulates, the Head of Mission and DFAT staff act as Australia's first point of contact, and as representatives to foreign governments. Each of these have daily and ongoing communication with foreign governments to gather and provide information, further Australia's interests, and assist Australian nationals abroad.
[20] In maintaining positive inter-governmental relations, there is a requirement of a broad spirit of cooperation between states to ensure regular exchange of reliable, sensitive information. A regular supply of high-quality information between states requires a relationship of trust.
[21] It is a longstanding and generally-accepted principle in international diplomacy, recognised amongst government and the diplomatic community, that all diplomatic communications, including discussions of the kind reported in the Cable, are conducted with an expectation of confidentiality and discretion. This convention is founded on the general and consistent practices surrounding the exchange of diplomatic communications between states, including Australia and the Indonesian government. Governments, in their dealings with other countries, rely heavily on the willingness of foreign governments to protect the confidentiality of such exchanges.
[22] This extends to all forms of diplomatic communications, written and oral. Less formal communications are no less confidential. In fact, the environment and context within which such communications are made promotes and enhances the frankness and freedom with which individuals are able to communicate. This creates an enhanced understanding that the contents of these communications are treated confidentially. Irrespective of the level of communications conducted with a foreign government (including at working levels), there is an expectation that any diplomatic communication is conducted on the basis and expectation of being provided in confidence.
[23] I have held discussions with foreign Government officials including from Indonesia at an official to official level in relation to matters of a similar order to those referred to in the Cable. In my experience, the conventions relating to the confidentiality of diplomatic communications and information I have described above are observed in diplomatic interactions between Australia and Indonesia. It was my understanding that Indonesian officials expected our discussions were on the basis that what was said, and particularly the comments made and information provided by them (or other foreign officials), would remain confidential and not be disclosed. To my knowledge, the confidence of those discussions has been maintained.
[24] Disclosing confidential diplomatic communications has a real potential to damage the relationship between the states concerned and adversely affect Australia's current and future equities and interests that we are pursuing. This is true regardless of the sensitivity of the information provided or the time that had elapsed since the communications occurred because it represents a breach of the convention, and therefore of trust. Whether or not it is sensitive or communications took place some time ago, it is my opinion that disclosure to a third party would reduce the willingness of foreign governments (and not just the government of Indonesia) to engage with Australian representatives as they would be concerned diplomatic communications (or the information within) exchanged within the relationship could not be protected.
[25] The result of disclosing confidential diplomatic communications would be a reduction (complete or partial) in the amount of information the Australian Government would receive on a range of important subject matters closely related to Australia's national interests such as trade, security and defence, regional stability and dealing with global challenges such as terrorism, cyber-security, the COVID-19 pandemic and cooperation in multilateral fora such as the G20, of which Indonesia is the current President. The Australian Government relies on receipt of this information from DFAT in order to make the best and most timely decisions maximising Australia's national interest, and minimising challenges or threats to it.
[26] I also consider that there is a substantial risk that disclosure could also lead to foreign governments being less willing to cooperate with Australia (in bilateral or multilateral engagements on a wide range of matters including those set out above) due to a lack of trust regarding Australia's ability to maintain the confidentiality of conversations in these fora.
[27] If trust is lost between Australia and a foreign government, the consequences could be serious. If a foreign government is not comfortable Australia will be able to maintain confidences, Australian officials are also less likely to be given information about developments in the country that could impact on the security of Australian citizens there or be informed of other matters relevant to Australia's interests.
Australia’s relations with Indonesia
[28] Australia has a long-standing and close relationship with Indonesia. Australia's bilateral partnership with Indonesia is one of Australia's most important relationships. There is significant engagement between Australia and Indonesia bilaterally and multilaterally in the context of trade and investment, security, development, education, and defence.
[29] Given Indonesia's proximity to Australia, it is vital that Australia ensure that this relationship remains close, productive, and positive. Indonesia is a key strategic partner in this region. Australia cooperates closely with Indonesia and enjoys a deep and broad relationship. It is vital that Australia maintains a close, productive, and strong relationship with Indonesia that enables the Australian Government to effectively advocate for and defend Australia's interests.
[30] The relationship between Australia and Indonesia has been built on, and continues to depend on, trust and confidence between officials of both governments. It is vital that this trust and confidence is maintained to ensure that Australia can continue to have an effective, positive, and strong relationship with Indonesia. I consider that any disclosure of the exempted information will erode the trust necessary for maintaining the relationship and expect it may adversely affect and damage the bilateral relationship.
Conclusion
[31] In light of the matters set out earlier in my affidavit, I believe the exempt material should not be disclosed.
[32] Most of the exempt information records what was said to Australian officials by Indonesian officials. As I have explained, this conversation was conducted within the confines of the diplomatic relationship between Australia and Indonesia and the usual expectation at the time of the communication, and still today, is that such conversations are confidential. The disclosure of this information is, in my opinion, also likely to damage Australia's relations with Indonesia for the reasons set out at [24] - [27] above.
[33] The other exempt information is contained in the first full paragraph after the summary.
[34] The practice of diplomacy among countries relies on a set of general codes and practices which govern how information is held and communicated. It is commonly understood amongst states, and certainly as between Australia and Indonesia, that meetings between Australian officials and representatives of foreign governments occur on the understanding of mutual trust and confidence. This means that where information is provided by individuals it would be expected that DFA T would seek to protect the identity of the source of the information and would not publicly attribute the name of an official of a foreign government to information provided in confidence. In diplomatic relations, as in personal relationships, trust is often hard won, can be easily lost, and once lost can be very difficult to regain. In my view, the release of the advice and names of officials will be seen by foreign governments as evidence that Australia cannot be relied upon to maintain that confidence. I consider this would have a deleterious effect on our relationships and in particular on our ability to advance and protect Australia's interests in Indonesia, the region and more generally.
[35] The final sentence of that paragraph summarises what Australian officials said during the exchange. Given the confidential context of the discussion and the sensitivity of the issue, in my opinion, the disclosure of this communication could damage Australia's relations with Indonesia. I consider this is the case, notwithstanding the passage of time since the cable was sent in 2007. The deaths of the five Australian-based journalists in Balibo in 1975 have been the subject of intense scrutiny since that time and diplomatic engagement has occurred at the highest levels about this matter. I consider that the disclosure of confidential discussions on such matters would damage Australia's relationship with Indonesia and undermine Australia's reputation as a trusted international partner. I consider this would likely damage our international relations not only with Indonesia but also other states.
I accept the evidence from Mr Jadwat about the confidential nature of diplomatic communications and Australia’s relations with Indonesia which was not seriously challenged by the applicant.
LEGISLATIVE FRAMEWORK
The High Court considered the legislative framework of the FOI Act in Kline v Official Secretary to the Governor-General[1] and said:
.… The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
[1] [2013] HCA 52; (2013) 249 CLR 645 at [37] (French CJ, Crennan, Kiefel and Bell JJ).
The general objects of the FOI Act are set out in s 3 as follows:
(1)The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a)requiring agencies to publish the information; and
(b)providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b)increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
In furtherance of the object in s 3(1)(b) of the FOI Act, s 11(1) provides that:
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.
Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the Act ‘subject to this section’. Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document. Section 11A(5) provides that the agency or Minister must give access to the document if it is conditionally exempt unless access to the document would be contrary to the public interest.
The term ‘exempt document’ is relevantly defined in s 4(1) to include: ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
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).
Section 33 in Division 2 of Part IV of the FOI Act provides that:
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).
In Secretary, Department of Prime Minister and Cabinet and Summers[2] Perry J said with respect to s 33 of the FOI Act:
[33] First, as the Full Court held in Commonwealth v Hittich (1994) 53 FCR 152 at 154, s 33(a)(iii) (then s 33(1)(a)(iii)) “does not provide any basis for a public interest criterion extending beyond the terms of the section. Either a document is within the section, in which case it is an exempt document, or it is not”…Equally, the strong personal interest which an applicant may have in obtaining access to the document in question is irrelevant.
[34] Secondly, the criteria prescribed by s 33(a) and (b) do not turn upon an assessment of the reasonableness of the Department’s claims. Rather, they turn upon cause and effect which can reasonably be anticipated…
[35] Thirdly, the Full Court observed in Secretary, Department of Foreign Affairs and Trade v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15 ; (Whittaker) that the relevant time for considering damage that might be caused by disclosure for the purposes of s 33(a) is the time at which disclosure is to occur, in contrast to s 33(b). As the Court explained:
26. …That is to say, disclosure of a document at the time of its creation might cause damage, but if at the time when access is sought disclosure would not cause damage, the document will not be exempt under s 33(1)(a)(iii). On the other hand, if disclosure of a document, whenever the disclosure is made, would divulge any matter communicated in confidence, the document will be exempt under s 33(1)(b), even if that matter is no longer confidential at the time when access is sought.
[36] Finally, it is clear from s 58(2) that the Tribunal has no discretion to permit disclosure once satisfied that the ground of exemption in s 33(a) or (b) is established even though an agency may permit access in accordance with other laws and practices.
[2] [2019] AATA 5537 at [33]-[36] (some citations omitted).
The phrase ‘could reasonably be expected to’ was considered by the Full Court of the Federal Court in Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 (‘Cockcroft’) at 190 where Bowen CJ and Beaumont J said:
In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information” were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based: see Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 per Mason J and per Gibbs CJ.
Sheppard J agreed with Bowen CJ and Beaumont J in Cockcroft but gave separate reasons in which he said at 196:
In my opinion he will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply. But, stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.
Wilcox J said in Arnold v Queensland (1987) 73 ALR 607 at 616 that the words ‘could reasonably be expected’ do not require the demonstration of a probability of damage.
President Kerr in Fernandes v National Archives [2014] AATA 180 was guided by Sheppard J’s reasons in Cockcroft and said that:
…the proper point of the spectrum is somewhere between risk and balance of probabilities. But in the end … the real test is not to be found in any gloss of judicial language, but rather in the language of the Archives Act itself understood in the context of the interests it is protecting.[3]
[3] [40].
President Davies in Maher and Attorney-General’s Department (1985) 7 ALD 731 said at 742 that a mere possibility of damage would not be sufficient and further:
The phrase "damage to international relations of the Commonwealth" comprehends intangible damage to Australia's reputation though such damage may be difficult to assess. International relations have never been matters easy to define or to quantify. Regard must be had, inter alia, to the relationships between particular persons in one government and persons in another. Damage to personal relationships may cause considerable harm for a time at least.
I accept that it must be shown that the publication of a document claimed to be exempt could reasonably be expected to cause damage to the international relations of the Commonwealth. A mere allegation to that effect is not enough. There must be cause and effect which can reasonably be anticipated. But if it can reasonably be anticipated that disclosure of the document would lessen the confidence which another country would place on the Government of Australia, that is a sufficient ground for a finding that the disclosure of the document could reasonably be expected to damage international relations. Trust and confidence are intangible aspects of international relations.
The Tribunal is required by s 93A of the FOI Act to have regard to any guidelines issued by the Information Commissioner. The FOI Guidelines with respect to exemptions provides at [5.17]:
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires analysis of the reasonable expectation rather than certainty of an event, effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.
The FOI Guidelines at [5.36] provides that 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; it encompasses intangible damage, such as loss of trust and confidence in the Australian government.[4]
[4] Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (February 2022) at [5.37].
CONTENTIONS
The applicant makes a general contention that the FOI Act cannot be used by decision makers ‘for illegal means or to cover up a crime or to act contra to a higher law or the s 51 External affairs power of the Australian Constitution’. The applicant asks that I review the document in question and consider whether it reveals any criminal behaviour or cover up. If it does, then the applicant contends that the exemptions to disclosure in the FOI Act do not apply.
The applicant makes a further contention that the information in the DFAT Cable is already in the public domain because it is disclosed in WikiLeaks documents that have been the subject of reports in the Age and the Sydney Morning Herald. The applicant says that because of this public disclosure there can be no damage caused to international relations by releasing the information in the DFAT Cable.
The respondent contends that the right to access is governed by the provisions of the FOI Act and that any exemptions should not be read down by reference to any other legislation or rights that may exist at law. The respondent says that the key issue for determination in this case is whether the disclosure of the document would, or could reasonably be expected to, cause damage to international relations.
CONSIDERATION
The applicant has made a request for access to a document pursuant to s 15 of the FOI Act. A right of access is afforded by s 11 which provides that every person has a legally enforceable right to obtain access ‘in accordance with the Act’ to a document, other than an exempt document. Section 11A(4) provides that access to an exempt document is not required to be given. Section 31A confirms that if a document is an exempt document under Division 2 then access to the document is not required to be given because of s 11A(4). The only issue for determination by the Tribunal is whether the document sought is an exempt document under s 33.
The applicant brings his application pursuant to s 57A of the FOI Act which provides that an application may be made to the Tribunal for review of certain decisions which includes the decision made by the respondent to refuse the applicant access to the redacted parts of the DFAT Cable. In this proceeding the Tribunal has power under s 58 of the FOI Act to review any decision made by the respondent in respect of the applicant’s request for access and to decide any matter in relation to the request that, under the FOI Act, could have been or could be decided by the respondent. On the application brought by the applicant, the Tribunal does not have a general power to investigate or report as contended for by the applicant. As stated by the plurality in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51]:
… the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision.
(footnotes removed)
In this case, the statutory question which marks the boundary of the Tribunal’s review is whether the DFAT Cable is an exempt document under s 33(a)(iii) of the FOI Act which requires consideration limited to whether its disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth. The applicant’s contentions based on the Constitution, the act of state doctrine, the concept of legitimate expectations and the decision of Glencore International v Commissioner of Taxation [2019] HCA 26 are not relevant to the limited issue that I must decide.
In Commonwealth v Hittich (1994) 53 FCR 152 at 154 the Full Court said:
We agree that s 33(1) [now s 33] does not provide any basis for a public interest criterion extending beyond the terms of the section. Either a document is within the section, in which case it is an exempt document, or it is not.
There is no scope for looking beyond the criteria of damage to the international relations of the Commonwealth in accordance with the terms of s 33(a)(iii) of the FOI Act. It follows that if the DFAT Cable falls within the section, then there can be no consideration of other matters such as whether the information in the DFAT Cable is relevant to a crime or breach of some other legislation or international obligation. I reject the applicant’s submission in this regard.
The applicant limits his request to disclosure of that part of the DFAT Cable relating to what was said by the DFAT officials at their meeting with Indonesian government officials on 16 November 2007. That discussion arose from a formal request from the Indonesian government made to Australian government officials at the Australian Embassy in Jakarta for them to explain to the Indonesians any implications of the findings of the Peter’s Inquest.
Mr Jadwat deposed that it is a longstanding and generally accepted principle in international diplomacy that all diplomatic communications, including discussions of the kind reported in the DFAT Cable, are conducted with an expectation of confidentiality and discretion. These conventions of confidentiality are observed in diplomatic interactions between Australia and Indonesia. If diplomatic communications were disclosed, it would represent a breach of the convention and therefore of trust. Mr Jadwat said this on the basis of his own experience and I accept his evidence in that regard. Further, Mr Jadwat deposed that in his opinion, disclosure to a third party would reduce the willingness of other foreign governments (not just Indonesia) to engage with Australian representatives. This would result in a reduction in the amount of information received on a range of important matters related to Australia’s national interests such as trade, security and defence, and regional stability. I accept this further evidence and conclude that the disclosure of any part of the record of the discussions currently redacted in the DFAT Cable would cause damage to Australia’s international relations.
The applicant also contends that the information in the DFAT Cable has been publicly disclosed by WikiLeaks and therefore any further disclosure by the respondent could not have the causative effect required by s 33(a)(iii) of the FOI Act. The first thing to note is that WikiLeaks did not disclose the DFAT Cable but rather a US diplomatic cable that purportedly reported what Dr Lee said during his meeting with the Indonesian government officials on 16 November 2007. At best for the applicant, what is recorded in the US cable is a hearsay report of what Dr Lee said to the US diplomats. The US cable records a US diplomat’s statement as to what Dr Lee told the US officials about what he said to the Indonesian officials. The accuracy of the US cable has not been confirmed and its authenticity is not accepted by Mr Jadwat. In these circumstances I am not satisfied that what Dr Lee told the Indonesian government officials has been accurately and publicly disclosed.
Even if there was an accurate and authenticated disclosure by WikiLeaks (or some other unauthorised third party) of what Dr Lee told the Indonesian government officials, it does not follow that there could be no damage to international relations if the DFAT Cable were fully released. According to the evidence of Mr Jadwat, the damage would arise from any act of the Australian government breaching the expectation of confidence and discretion that exists within the diplomatic community in relation to diplomatic communications. In other words, the Indonesians would not expect there to be a deliberate disclosure by the Australian government of what was said at their confidential meeting with Mr Lee. This expectation would apply even if there was a disclosure of the same information by WikiLeaks. It is the relationship of trust between the governments of Australia and Indonesia that is important. If that trust is breached by a deliberate act by Australia in disclosing a diplomatic communication, then the relationship would be damaged because the likelihood of Indonesia entering into further confidential communications or trusting Australia more generally in the future would be diminished.
In Mr Jadwat’s affidavit, he considers the impact of disclosure of that part of the DFAT Cable which summarises what Australian officials said during the discussion. It is this information to which the applicant seeks access. Mr Jadwat says that given the confidential context of the discussion and the sensitivity of the issue (of the deaths of the Balibo Five), it is his opinion that the disclosure of this communication could damage Australia’s relations with Indonesia. This is the case notwithstanding the passage of time since the DFAT Cable was sent in 2007.
I find that disclosure of the parts of the DFAT Cable redacted under s 33(a)(iii) would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth.
DECISION OF THE TRIBUNAL
The decision of the Tribunal is to affirm the decision under review and to deny the applicant access to the part of the document sought because it is exempt from disclosure by operation of s 33(a)(iii) of the FOI Act.
I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
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Associate
Dated: 28 August 2023
Dates of hearing: 3, 4, 5 May and 20 June 2023 Applicant: Self-represented, by video Counsel for the Respondent: Irene Sekler Solicitors for the Respondent: Australian Government Solicitor
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