Ellickson and Secretary, Department of Defence

[2024] AATA 236

Ellickson and Secretary, Department of Defence [2024] AATA 236 (22 February 2024)

Division:FREEDOM OF INFORMATION DIVISION

File Number:          2023/3533

Re:Ellickson

APPLICANT

AndSecretary, Department of Defence

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date:22 February 2024

Place:Melbourne

The Tribunal refuses the applicant’s requests to issue summons.

.....................[sgd]...................................................

Deputy President Britten-Jones

Catchwords

INTERLOCUTORY APPLICATION – request for summons to issue under s 40A of the Administrative Appeals Tribunal Act 1975 (Cth) – evidence of the proposed witnesses not relevant to the issues for determination under the Freedom of Information Act 1982 (Cth) – requests 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 285

REASONS FOR DECISION

Deputy President Britten-Jones

22 February 2024

1. This is an interlocutory application by which the applicant has requested the Tribunal to issue numerous 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.

2. 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.

3. 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:

   [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)

4. 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.

5. 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.

6. 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 in which the applicant challenges a decision to withhold parts of documents from him under the Freedom of Information Act 1982 (Cth) (the FOI Act). The documents are five records of conversation between the applicant and the Australian Government Security Vetting Agency (AGSVA) generated as part of a baseline security clearance assessment process undertaken while the applicant was engaged in the Royal Australian Navy. The respondent maintains that the applicant should be refused access under ss 33(a)(i), 47E(d) and 47F of the FOI Act.

7. Section 33(a)(i) 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;

8. Section 47E(d) relates to documents which disclose certain operations of agencies and provides:

   A document is conditionally exempt if its disclosure under this Act would, or could

   reasonably be expected to, do any of the following:

   …

   (d) have a substantial adverse effect on the proper and efficient conduct of

   the operations of an agency.

9. The question for the Tribunal under s 47E(d) is whether the disclosure of the documents in issue would, or could reasonably be expected to, have a substantial adverse effect on the proper and efficient conduct of the operations of the respondent. To determine the effect, if any, on the respondent’s operations if the documents are disclosed, it is necessary to understand the processes adopted by the AGSVA.

10. Section 47F relates to documents which disclose personal privacy of individuals and provides:

    General rule

    (1)A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

    (2)In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:

    (a)the extent to which the information is well known;

    (b)whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;

    (c)the availability of the information from publicly accessible sources;

    (d)any other matters that the agency or Minister considers relevant.

11. The Guidelines at 6.138 say that the personal privacy exemption is designed to prevent the unreasonable invasion of third parties’ privacy. The Guidelines at 6.142 say that the key factors for determining whether disclosure is unreasonable include:

    (a) the author of the document is identifiable

    (b) the documents contain third party personal information

    (c) release of the documents would cause stress on the third party

    (d) no public purpose would be achieved through release.

    Footnotes omitted.  

12. The issues for determination in this case are confined to whether:

    (a)the disclosure of the original signature of an interviewing officer (Document 1) would involve the unreasonable disclosure of personal information; and

    (b)the disclosure of questions put to the applicant in documents 2 to 5 would undermine the proper and efficient conduct of the respondent in relation to AGSVA’s interviewing techniques and, if so, whether this could reasonably be expected to damage the security of the Commonwealth.

13. The question for the Tribunal is whether the witnesses proposed to be summoned can be expected to assist with the resolution of the above issues by throwing some light on them.

14. The applicant has requested summons for army and naval personnel, a manager of Cybertrace and a manager from the Department of Home Affairs.[1]  The applicant is seeking an order that they are required to give evidence before the Tribunal and provide a “statement regarding no threat to the Commonwealth regarding Rita Owino”. The reference to Rita Owino is a reference to the applicant’s Kenyan fiancée.

    [1] By email on 8 February 2024, the applicant withdrew his request to summon his daughter and Petty Officer Keiupers.

15. In emails dated 10 January 2024, the applicant says that his proposed witnesses will “provide context on military security as close and experienced observers (witnesses) to the context of my entire Navy security clearance process start to finish” and “My Kenyan fiancée disappeared during this process and the redacted information helps me to find her”.  In other correspondence the applicant has raised the “Australian Defence Force lies about my missing Kenyan fiancée”, “my lifetime ban from ever seeking to rejoin the Australian Navy” and “the bullying I sustained by myself when serving in the Navy”.

16. The respondent has the statutory onus under s 61 of the FOI Act to establish that the refusal decision is justified, or that the Tribunal should give a decision adverse to the applicant. The respondent intends calling as a witness Mr Peter West, First Assistant Secretary of the Security and Vetting Service and the respondent’s Chief Security Officer, who will provide evidence about how the AGSVA processes sit within the broader suite of the respondent’s security processes.

17. The issues that arise from the statutory exemption provisions in Part IV of the FOI Act relate primarily to the impact of disclosure of documents that reveal the AGSVA’s procedures. The applicant appears to be under the misapprehension that this application for review provides him with an opportunity to establish that he is not a security threat to the Commonwealth for any reason including his association with his Kenyan fiancée.

18. Evidence relating to the applicant’s missing Kenyan fiancée is not relevant to the impact of disclosure of the AGSVA’s processes. The respondent intends calling a witness who is the First Assistant Secretary of the Security and Vetting Service to give evidence relating to AGSVA so as to persuade the Tribunal that the decision to refuse access is justified. The witnesses proposed to be called by the applicant do not work with AGSVA and will not, in my view, provide any light on the issues arising from the statute. The applicant asserts that they have “intimate experience in AGSVA process” but their proposed evidence is about background to the applicant’s security clearance process and their knowledge relating to whether he posed a security threat because of his association with his Kenyan fiancée. I expand upon that below.

19. With respect to Warrant Officer Tracey Felaffe, Australian Army, the applicant says that this witness provided a security briefing in December 2019 and had no issue with his travel to Kenya for his wedding. This proposed evidence is not relevant to the impact of disclosure of AGSVA processes or the personal information of the interviewing officer.

20. With respect to Commander Jeffs, Australian Army, the applicant says that this witness signed off on his travel to Kenya for his wedding and agreed to his security briefing. This proposed evidence is not relevant to the impact of disclosure of AGSVA processes or the personal information of the interviewing officer.

21. With respect to Petty Officer Phillips, Australian Navy, the applicant says that the witness signed off on his security clearance and believes that, despite travelling to Kenya immediately before joining the Navy, the applicant had zero security risks. This proposed evidence is not relevant to the impact of disclosure of AGSVA processes or the personal information of the interviewing officer.

22. With respect to ‘James’, manager of Cybertrace, the applicant says that this witness was engaged to investigate his Kenyan fiancée and found no physical trace of her as a person. This proposed evidence is not relevant to the impact of disclosure of AGSVA processes or the personal information of the interviewing officer.  Further, the request is irregular because it does not contain the full name of the proposed witness.

23. With respect to the ‘Department of Home Affairs, Manager of National Security Hotline’, the applicant says that this witness will say there are no security issues. This proposed evidence is not relevant to the impact of disclosure of AGSVA processes or the personal information of the interviewing officer. Further, the request is irregular because it does not contain the name of the proposed witness.

24. The applicant has indicated that he will request a summons to New Life Psychologists to give evidence that “everyone is lying to me”. This proposed evidence is not relevant to the impact of disclosure of AGSVA processes or the personal information of the interviewing officer. Further, the request is irregular because it does not contain the name of the proposed witness.

25. The applicant has also indicated that he will request a summons to Bruce Sylvester, Psychologist to give evidence related to an assault on the applicant and that “nothing was done by Victoria Police and the Australian Defence Force”. This proposed evidence is not relevant to the impact of disclosure of AGSVA processes or the personal information of the interviewing officer.

    Conclusion

26. For the reasons set out above, the Tribunal refuses the applications for a summons.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

...........................[sgd].............................................

Associate

Dated: 22 February 2024

Date final submissions received:	8 February 2024
Applicant:	Self-represented
Counsel for the Respondent:	Justin Davidson
Solicitors for the Respondent:	Australian Government Solicitor