Craig and Secretary, Department of Foreign Affairs and Trade (Freedom of information)
[2022] AATA 4412
•20 December 2022
Craig and Secretary, Department of Foreign Affairs and Trade (Freedom of information) [2022] AATA 4412 (20 December 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2021/5845
Re:Anthony Craig
APPLICANT
AndSecretary, Department of Foreign Affairs and Trade
RESPONDENT
Decision
Tribunal:Deputy President Britten-Jones
Date:20 December 2022
Place:Melbourne
The applicant’s request to the Tribunal to issue a summons against Dr Justin Lee is refused.
.....[sgd].......... .................................................
Deputy President Britten-Jones
CATCHWORDS
INTERLOCUTORY APPLICATION – request for a summons to issue under s 40A of the Administrative Appeals Tribunal Act 1975 (Cth) – evidence of the proposed witness not relevant to the issue for determination under the Freedom of Information Act 1982 (Cth) – request to issue summons refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)
CASES
Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504
General Merchandise and Apparel Group Pty Ltd and the Chief Executive Officer of Customs [2009] AATA 988
Comcare v Maganga [2008] FCA 285Secretary, Department of Prime Minister and cabinet and Summers [2019] AATA 5537
REASONS FOR DECISION
Deputy President Britten-Jones
20 December 2022
This is an interlocutory application by which the applicant has requested the Tribunal to issue a summons. Section 40A of the Administrative Appeals Tribunal Act 1975 (Cth) provides the power to summon a person to appear before the Tribunal to give evidence:
Power to summon person to give evidence or produce documents
(1) For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a) appear before the Tribunal to give evidence;
(b) produce any document or other thing specified in the summons.
(2) The President or an authorised member may refuse a request to summon a person.
The power of the Tribunal to issue a summons is discretionary and an application may be refused. The general principles relating to the issue of subpoenas by a court are applicable to the issue of a summons by the Tribunal: Cosco Holdings Pty Ltd v Federal Commissioner of Taxation [1997] FCA 1504.
The primary consideration in the exercise of the Tribunal’s discretion to issue a summons is relevance to the application before the Tribunal. As Deputy President Forgie stated in General Merchandise and Apparel Group Pty Ltd and the Chief Executive Officer of Customs [2009] AATA 988 (General Merchandise):
[231]... The power may not be used in the course of a proceeding for the purposes of obtaining documents that may assist one or more of the parties to the proceeding to pursue a collateral purpose even if it is a purpose that bears a relationship to the decision being reviewed by the Tribunal but does not raise an issue that is reviewable. As it would be put in the context of a subpoena, it must be issued in good faith, and so bona fide, for a purpose relevant to the review.
[232] Therefore, in considering whether to set aside a summons, it must be examined with that in mind. If the documents, books or things it seeks ‘... could reasonably be expected to throw light on some of the issues in the principal proceedings’ then the relevance of the summons for the purposes of the hearing of the proceeding will be established. ‘It is not a question of looking at the documents to see if the documents might permit a case to be made.’ It is clear from the authorities that the relevance of the documents sought in the summons requested does not have to be established on the balance of probabilities. ...
(footnotes omitted)
In Comcare v Maganga [2008] FCA 285 at [37] the Federal Court observed that the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings.
The above-mentioned case law relating to the issue of a summons to produce a document is equally applicable to a summons to require a person to appear before the Tribunal to give evidence.
In order to consider whether the evidence sought to be adduced is relevant in the sense that it could reasonably be expected to throw light on some of the issues, one must refer to the application for review brought under the Freedom of Information Act 1982 (Cth) (the FOI Act). The applicant has been refused access to a document under s 33 of the FOI Act which provides:
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.
The issue for determination in this case is whether the disclosure of the document:
(a)would, or could reasonably be expected to, cause damage to international relations; or
(b)would divulge any information or matter communicated in confidence by or on behalf of a foreign government to the Government of the Commonwealth.
The public interest is not a relevant factor. In Secretary, Department of Prime Minister and cabinet and Summers [2019] AATA 5537 Justice Perry said at [33] – [34]:
[33] First, as the Full Court held in Commonwealth v Hittich [1994] FCA 1324; (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”: see also e.g. Re O’Donovan and Attorney-General’s Department (1985) 8 ALD 528 (O’Donovan) at 534 (19)-(20) (Deputy President Hall); and Re Lobo and Department of Immigration and Citizenship [2011] AATA 705; (2011) 56 AAR 1 (Lobo) at [85] (Deputy President Forgie). Equally, the strong personal interest which an applicant may have in obtaining access to the document in question is irrelevant: see e.g. Van Xinh Bui and Department of Foreign Affairs and Trade [2005] AATA 97 (Bui) at [24] (Allen SM); Re Wang and Department of Employment, Education and Training (1988) 15 ALD 497 (Wang) at 500 (17) (Deputy President Thompson).
[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 (Re Maher & Attorney-General’s Department (1985) 7 ALD 731 (Re Maher) at 742 (Davies J (President))). As such, the Department correctly submits that s 33 does not require the Tribunal to consider the objective reasonableness of the Queen’s expected response to disclosure or that of the Royal Household or member States of the Commonwealth.
The document in issue is a three page cable dated 16 November 2007 sent by Dr Justin Lee from the Australian Embassy in Jakarta to the Department of Foreign Affairs in Canberra. The cable reports on a discussion on 16 November 2007 held between officers of DFAT, who included Dr Lee, and Indonesian Government officials. The discussion concerned the New South Wales Coroner’s report following the inquest into the death of one of the Australian journalists killed in Balibo in 1975.
Ridwaan Jadwat has provided an affidavit dated 6 May 2022 deposing that:
(a)the material redacted in the subject document included information conveyed by Indonesian officials during their discussion and names of Indonesian officials and information concerning what was said by Australian officials during the discussion;
(b)it is a principle of international diplomacy that all diplomatic communications of this nature were conducted with an expectation of confidentiality and discretion;
(c)disclosing confidential diplomatic communications has a real potential to damage the relationship between the states concerned; and
(d)it is vital to maintain trust and confidence between Australia and Indonesia.
The applicant relies upon an article in the Sydney Morning Herald dated 18 December 2010 that referred to diplomatic communications obtained by WikiLeaks which reveal what Dr Lee told US diplomats in relation to the coroner’s report.
The applicant says Dr Lee would be an extremely important witness who could provide insight into what was said to the Indonesians and the US diplomats. The applicant said that DFAT has a track record of covering up crimes for Indonesia and assisting Indonesian criminals. He believes that DFAT has not been open, honest or transparent in relation to the Balibo killings. He wants to cross examine Dr Lee on behalf of Shirley Shackleton who was married to one of the journalists killed in Balibo.
The applicant has requested that a summons to give evidence be issued to Dr Lee.
The issue for the Tribunal at the final hearing of the application for review is confined to whether disclosure of the subject document would cause damage to Australia’s international relations or would divulge confidential information. The focus of the hearing is the document itself and not the author or someone referred to in the document. Dr Lee was a participant in the discussions between diplomats but his insight into those discussions and those events which were discussed is not relevant to issues that need to be determined under the FOI Act. The subject document will speak for itself. Dr Lee’s evidence would have little to no relevance to the effect of its disclosure. I consider that the evidence from Mr Jadwat is relevant to the issue for determination at the final hearing but I do not consider that the evidence proposed to be called from Dr Lee would shed any light on the issues nor would it be of any assistance to the Tribunal in making its final determination.
I refuse the application for a summons.
1.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
...[sgd]............................................................
Associate
Dated: 20 December 2022
Date of interlocutory hearing:
4 August 2022
Applicant:
Self-represented
Advocate for the respondent:
C Bennett
Solicitors for the respondent: Australian Government Solicitor
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