Director, Australian War Memorial and Patrick (Practice and procedure) - [2025] ARTA 540

Director, Australian War Memorial and Patrick (Practice and procedure) [2025] ARTA 540 (10 April 2025)
Applicant/s:  Director, Australian War Memorial
Respondent:  Rex Patrick
Tribunal Number:                2024/2857

Tribunal:Senior Member S Webb
Place:Canberra
Date:10 April 2025

DIRECTION
Being satisfied the proceeding in this application involves national security information, exercising the delegated power of the President under s 134(2) of the Administrative Review Tribunal Act 2024, I direct that the Tribunal’s powers in respect of the proceeding are to be exercised in the Intelligence and Security jurisdictional area.
..................[SGD]......................
Senior Member Simon Webb
PRACTICE AND PROCEDURE – freedom of information – scope of review – application for exercise of powers in the Intelligence and Security jurisdictional area – ‘national security information’ – satisfaction – exercise of discretion – direction made
Legislation
Administrative Review Tribunal Act 2024 (Cth), ss 32, 134, 179
Freedom of Information Act 1982 (Cth), ss 4, 22, 33, 47C, 47E, 47F, 54C, 54L, 54W, 55K, 57A, 58
Judiciary Act 1903 (Cth), s 55ZG
National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 7, 8, 9, 10, 11
Cases
Bird v DP (a pseudonym) [2024] HCA 41
Coulton v Holcombe [1986] HCA 33
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114
Tasty Chicks Pty Ltd & Ors v Chief Commissioner of State Revenue [2011] HCA 41
Statement of Reasons

This is an application for a direction under s 134(2) of the Administrative Appeals Tribunal Act 2024 (ART Act) that the Tribunal’s powers in the proceeding are to be exercised in the Intelligence and Security jurisdictional area (ISJA).
The power to do so is conferred on the President.
Under s 179(1) of the ART Act, the President has delegated to me the power to determine this issue under s 134(2).
FACTS
Mr Patrick requested access to the following information under the Freedom of Information Act 1982 (FOI Act):
Emails and letters between the Australian War Memorial (including to and from Craig Stockings) and the DFAT that discuss suggested content changes/variations/inclusions/omissions by DFAT for the proposed official history of Australia’s East Timor operations.
An authorised decision maker decided (original decision) the 11 documents within the scope of the application are:
(a)exempt under s 33(a)(iii) of the FOI Act as they affect international relations; and
(b)conditionally exempt under s 47C of the FOI Act as they contain information about deliberative processes.[1]
[1] T4.
Mr Patrick requested internal review of this decision.
The internal review decision (IR decision) maker did not refer to or expressly consider the applicability of s 33 of the FOI Act and decided the 11 documents:
(a)are conditionally exempt under s 47C (deliberative processes) and s 47E (certain operations of agencies) of the FOI Act; and
(b)should be partially released with exempt material deleted.[2]
[2] T7.
Mr Patrick applied for review of this decision by the Office of the Australian Information…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Director, Australian War Memorial and Patrick (Practice and... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] ARTA 540
Decision Date: 10 April 2025

CaseChat Overview and Summary

The case involves Mr Patrick who requested information from the Australian War Memorial (AWM) under the Freedom of Information Act 1982 (FOI Act). The requested information included emails and letters discussing suggested content changes for the proposed official history of Australia’s East Timor operations between the AWM and the Department of Foreign Affairs and Trade (DFAT). The AWM initially refused the request, citing exemptions under the FOI Act. Mr Patrick sought internal review, which was also denied, leading him to appeal to the Office of the Australian Information Commissioner (OAIC). The OAIC reviewed the decision, finding that certain information should be disclosed with exemptions removed. Dissatisfied, the Director of the AWM applied to the Administrative Review Tribunal (Tribunal) for further review of the OAIC’s decision.

The legal issues in this case revolve around the scope of the Tribunal’s review powers under the Administrative Tribunal Act 2024 (ART Act) and the application of exemptions under the FOI Act. Specifically, the Tribunal had to determine whether the proceedings involving national security information should be conducted in the Intelligence and Security jurisdictional area (ISJA) and whether the Director could raise new grounds of exemption under section 33 of the FOI Act in the Tribunal proceedings that were not previously raised before the OAIC.

The Tribunal found that the proceedings did not relate to an 'intelligence and security decision' under section 134(1) of the ART Act. However, it acknowledged that the Director could request the President to direct that the Tribunal’s powers be exercised in the ISJA if the President was satisfied that the proceeding involved national security information. The Tribunal considered the scope of its review powers under section 58(1) of the FOI Act, which allows it to review any decision made in respect of a FOI request, not just the terms of the OAIC decision. It rejected Mr Patrick’s argument that the Tribunal should not consider new grounds of exemption raised by the Director, as the Tribunal’s review jurisdiction is broad and not limited to the issues raised in the OAIC proceedings.

The Tribunal concluded that it had the discretion to decide whether to exercise its review powers in the ISJA, and the Director’s request to do so was based on the potential involvement of national security information. The Tribunal was not precluded from considering the Director’s new grounds of exemption under section 33 of the FOI Act, given its broad review powers.

The Tribunal ordered that the review of the OAIC decision would continue, with the possibility that the President could direct that the proceedings be conducted in the ISJA if satisfied that national security information was involved.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Under s 179(1) of the ART Act, the President has delegated to me the power to determine this issue under s 134(2).FACTS Mr Patrick requested access to the following information under the Freedom of Information Act 1982 (FOI Act):Emails and letters between the Australian War Memorial (including to and from Craig Stockings) and the DFAT that discuss suggested content changes/variations/inclusions/omissions by DFAT for the proposed official history of Australia’s East Timor operations. An authorised decision maker decided (original decision) the 11 documents within the scope of the application are:(a)exempt under s 33(a)(iii) of the FOI Act as they affect international relations; and (b)conditionally exempt under s 47C of the FOI Act as they contain information about deliberative processes.[1][1] T4. Mr Patrick requested internal review of this decision. The internal review decision (IR decision) maker did not refer to or expressly consider the applicability of s 33 of the FOI Act and decided the 11 documents:(a)are conditionally exempt under s 47C (deliberative processes) and s 47E (certain operations of agencies) of the FOI Act; and(b)should be partially released with exempt material deleted.[2][2] T7. Mr Patrick applied for review of this decision by the Office of the Australian Information Commissioner (OAIC). The OAIC issued a decision: Patrick and Australian War Memorial (Freedom of Information) [2024] AICmr 75 (AIC decision) under s 55K of the FOI Act.[3] Despite passing reference to s 33 of the FOI Act,[4] the AIC decision does not expressly consider or find material exempt under s 33 of the FOI Act.[5][3] T2.[4] T2, 23; T15, 55.[5] T2, T10. The AIC decided to set aside the original decision as varied by the IR decision and in substitution decided:(a)irrelevant personal information should be deleted under s 22(1)(a)(ii) of the FOI Act;(b)material previously found to be conditionally exemption under s 47C and s 47E(d) is not exempt; and(c)information about individuals is conditionally exempt under s 47F and disclosure of such information would be contrary to the public interest.[6][6] T2, 4. The Director of the Australian War Memorial lodged an application for review of this decision by the Tribunal. The application for review was lodged under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and the Administrative Tribunal Act 2024 (ART Act) came into effect on 14 October 2024, establishing the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, the Tribunal has jurisdiction to conduct the review. Operation of the AIC decision was stayed. On 19 December 2024, by consent, the stay order was varied under s 32 of the ART Act in order to permit release of additional material to Mr Patrick. The dispute has narrowed to a sharp point. The Director asserts parts of the documents are exempt under s 33(a) of the FOI Act, for reasons of: (a)national security and defence (parts of 2 pages) under s 33(a)(i) and (ii); and(b)damage to international relations (parts of 20 pages) under s 33(a)(iii).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The OAIC issued a decision: Patrick and Australian War Memorial (Freedom of Information) [2024] AICmr 75 (AIC decision) under s 55K of the FOI Act.[3] Despite passing reference to s 33 of the FOI Act,[4] the AIC decision does not expressly consider or find material exempt under s 33 of the FOI Act.[5][3] T2.[4] T2, 23; T15, 55.[5] T2, T10. The AIC decided to set aside the original decision as varied by the IR decision and in substitution decided:(a)irrelevant personal information should be deleted under s 22(1)(a)(ii) of the FOI Act;(b)material previously found to be conditionally exemption under s 47C and s 47E(d) is not exempt; and(c)information about individuals is conditionally exempt under s 47F and disclosure of such information would be contrary to the public interest.[6][6] T2, 4. The Director of the Australian War Memorial lodged an application for review of this decision by the Tribunal. The application for review was lodged under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and the Administrative Tribunal Act 2024 (ART Act) came into effect on 14 October 2024, establishing the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, the Tribunal has jurisdiction to conduct the review. Operation of the AIC decision was stayed. On 19 December 2024, by consent, the stay order was varied under s 32 of the ART Act in order to permit release of additional material to Mr Patrick. The dispute has narrowed to a sharp point. The Director asserts parts of the documents are exempt under s 33(a) of the FOI Act, for reasons of: (a)national security and defence (parts of 2 pages) under s 33(a)(i) and (ii); and(b)damage to international relations (parts of 20 pages) under s 33(a)(iii). The Director requested the President to make a direction under s 134(2) of the ART Act. It is this issue, alone, that is the subject of this decision.SUBMISSIONS The parties submit the AIC decision is not an ‘intelligence and security decision’ for the purposes of s 134(1) of the ART Act and for this reason the Tribunal is not required to exercise its powers in this proceeding in the ISJA. The Director alleges the controversial text involves ‘national security information’ disclosure of which would, or could reasonably be expected to, cause damage to the security of the Commonwealth or the international relations of the Commonwealth. Even though these grounds of exemption were not addressed in the IR decision and they were not agitated in the OAIC proceeding, they are now pressed. The Director observes if exemption under s 33 had been pressed in the OAIC proceedings, the present application would proceed in the ISJA. The Director argues the controversial text relates to national security information which should be protected under the special rules applying to the ISJA in Part 6 of the ART Act.

Ratio Decidendi

Legal Principle Established

Mr Patrick asserts the Director did not run his case before the OAIC on grounds of exemption under s 33 of the FOI Act, and he should not be permitted to do so in these proceedings. He contends the FOI Act creates two independent statutory review stages under Part VII and Part VIIA, in which the Commonwealth, as a model litigant, should not have the opportunity to raise matters in the latter which were not raised in the former. Should this be entertained, Mr Patrick alleges he will face an entirely new case in the Tribunal which was not put to the OAIC and in responding to such a case he will face the prejudice of additional cost and delay. Mr Patrick submits the Tribunal’s power to limit the scope of the review under s 53 of the ART Act should be exercised to exclude agitation of matters relating to security, defence and international relations.CONSIDERATION The issue is to be determined under s 134 of the ART Act:(1) The Tribunal’s powers in relation to a proceeding that relates to an intelligence and security decision are to be exercised in the Intelligence and Security jurisdictional area.Other proceedings involving national security information(2) If the President is satisfied that any other proceeding in the Tribunal would involve national security information, the President may direct that the Tribunal’s powers in relation to the proceeding are to be exercised in the Intelligence and Security jurisdictional area.(3) The President may do so:(a) on application by a party to the proceeding; or(b) on the President’s own initiative.Other proceedings generally(4) To avoid doubt, this section does not limit the President’s power under subsection 196(4) to direct that the powers of the Tribunal in relation to any other proceeding are to be exercised in the Intelligence and Security jurisdictional area. Mr Patrick’s submissions raise issues which require consideration of the nature of the Tribunal’s review in the context of the legislative scheme for review of decisions under the FOI Act. By operation of s 57A of the FOI Act, the AIC decision is reviewable by the Tribunal. The powers of the Tribunal on review of the AIC decision are set out in s 58(1):(1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister. As can be seen, the scope of the Tribunal’s powers for the purposes of the review are not confined to the terms of the AIC decision. This is reinforced by s 54 of the ART Act. I do not accept Mr Patrick’s submission the Tribunal proceedings involve an ‘appeal’ from a ‘review’ in which the Director’s case is limited to that previously put in the OAIC proceedings. As s 58(1) of the FOI Act makes perfectly clear, when exercising the merits review jurisdiction conferred upon it by s 57A(1) of the FOI Act, the Tribunal has power to review any decision that has been made in respect of Mr Patrick’s request. The observations of the plurality in Tasty Chicks Pty Ltd & Ors v Chief Commissioner of State Revenue [2011] HCA 41 at [5] do not compel any different conclusion.