Fernandes and Director-General, National Archives of Australia

Fernandes and Director-General, National Archives of Australia [2021] AATA 3990 (1 November 2021)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2017/6606; 2017/7743
Re:Clinton Fernandes
APPLICANT

AndDirector-General, National Archives of Australia
RESPONDENT

DECISION
Tribunal:Deputy President Bernard J McCabe
Deputy President B W Rayment OAM QC
The Hon. John Pascoe AC CVO, Deputy President

Date:1 November 2021
Place:Sydney

The Tribunal affirms the decisions under review.
..............................[sgd].....................................
Bernard J McCabe, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – National Archives of Australia – exempt records –information or matter the disclosure of which could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth – whether discretion should be exercised to allow release of part of the records – decisions under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 36
Archives Act 1983 (Cth) ss 33, 44
Intelligence Services Act 2001 (Cth) ss 6, 13A, 13B
Freedom of Information Act 1982 (Cth) s 7
REASONS FOR DECISION
Deputy President Bernard J McCabe
Deputy President B W Rayment OAM QC
The Hon. John Pascoe AC CVO, Deputy President

1 November 2021
Background

These proceedings were heard over several days in June 2021. The applicant, Dr Clinton Fernandes, made two applications to the National Archives of Australia on 9 August 2017 for access to certain records of the Australian Secret Intelligence Service (ASIS). The first application was for “Records relating to ASIS presence and operations in Chile from 1971 (when the ASIS station was established) to 1974” (the Chile records). The second application was for “Documents relating to the overthrow of President Salvatore Allende of Chile” (the Allende records).
No decision was made on the first application and so the applicant sought that the Tribunal review the deemed decision to refuse to grant access to the Chile records. On 16 September 2019 a delegate of the respondent decided that parts of the Chile records are exempt under s.33(1)(a) of the Archives Act 1983 (Cth) (the Archives Act), on the ground that disclosure could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth. The remainder of the Chile records were subsequently released to the applicant. The records released included entire documents or parts of documents.
No decision was made on the application for the Allende records, and the applicant again sought that the Tribunal review the respondent’s deemed refusal to grant access.
A previous request for the Allende records was made in 2007. Some records were released, however the respondent determined that the balance of the records were exempt under s.33(1)(a) of the Archives Act. On 19 March 2018, a delegate of the respondent decided that the text of an additional 3 folios could be released to the applicant, but that otherwise, the balance of the Allende records should remain exempt under s.33(1)(a).
On the first day of the hearing, we were asked to make consent orders as a result of which more records were released to the applicant.
We will set out the issues for determination and our analysis of the relevant law and our findings of fact below insofar as it is possible to do so in these ‘open’ reasons. But given the unusual nature of review proceedings under the Archives Act in cases like this, we should begin by explaining the role of the Tribunal within the legislative scheme.
The role of the Tribunal
The regulation of Australia’s security and intelligence services involves a balancing act. On the one hand, the law facilitates those agencies operating with a measure of secrecy thought necessary to make them effective. But the law also includes accountability mechanisms that are intended to reduce the risk of those services abusing the public trust. The requirement to keep records is one accountability mechanism, albeit that access to those records is necessarily restricted in accordance with the Archives Act.[1] The Tribunal is intended as an integrity measure that ensures the efficacy and the credibility of this particular accountability mechanism.
[1] We note the access regime contained in the Freedom of Information Act 1982 (Cth) (the FOI Act) does not apply to the records in question, while the Archives Act does apply. Section 7(2A) of the FOI Act provides as follows:
The role of the Tribunal as an integrity measure under the Archives Act needs some further explanation. We do not concern ourselves with the motivations of the person seeking access to the documents in question. We are also uninterested in the contents of the documents themselves, except insofar as we need to form a judgment about those contents in order to determine how the law should be applied. When we make those judgments, we act as an objective executive decision-maker who steps into the shoes of the Director-General. We give effect to the legislation and (to the extent we are called upon to do so) the policy evident in the Archives Act. We do not consider the historical value of the documents in question: that is a matter for expert judgment by historians when the documents are ultimately released. We focus on whether the exemptions have properly been claimed by the decision-maker under the legislation.
As executive decision-makers, members of the Tribunal are required to act on evidence. As we shall explain, we have received evidence in this case – some of it in closed session – from experts with experience in matters of national security and intelligence. They discussed the ways in which Australia’s adversaries can obtain useful and potentially damaging insights from apparently innocuous disclosures through a process known as ‘mosaic analysis’. We were referred to recent real-life examples of mosaic analysis carried out by investigative journalists working as part of the Bellingcat organisation. The Bellingcat investigators were able to draw together diverse threads contained in publicly available material to make startling disclosures. The journalists’ capacity for mosaic analysis pales in comparison to the capacity of foreign security and intelligence services who might combine disclosures from archived material with information obtained from illicit sources to form a more complete picture of the work of ASIS, amongst others.
It is also important to appreciate the provisions in the Archives Act relating to exempt records of the intelligence and security services are not merely concerned with preserving the secrecy of information contained in individual documents in appropriate cases. In many instances – and this may be one of them – the concern is less about keeping secrets per se than it is about preserving our government’s capacity to keep secrets where appropriate. That capacity is important in and of itself, but it is vital in circumstances where our security and intelligence services depend on others to provide us with valuable information that impacts on our national security in a dangerous world. It is no answer to say that other countries which provide us with assistance in the expectation of secrecy might take a more relaxed approach to some of the same information which might be contained within their files. It is also beside the point that some of the information in the documents may already be known or strongly suspected in some circles. Protecting our ability to keep secrets – and being seen to do that – may require us to continue suppressing documents containing what may appear to be benign or uncontroversial information about events that occurred long ago.
Issues to be determined
Section 33(1)(a) of the Archives Act provides as follows:
(1) For the purposes of this Act, a Commonwealth record is an exempt record if it contains information or matter of any of the following kinds:
(a) information or matter the disclosure of which under this Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth;…
Section 44(7) is in the following terms:
(7) On a review in pursuance of an application to the Tribunal under section 43, the Tribunal may, if it is satisfied that it would be practicable to give access to, or to a copy of, part of an exempt record in a form that would not disclose information or matter by reason of which the record is an exempt record, direct that access be given accordingly
There are two issues in this case. First, is the exemption under s.33(1)(a) of the Archives Act correctly claimed. Second, and if so, ought the discretion in s.44(7) be exercised, so to give access to, or to a copy of part of, the exempt records in a form that would not disclose information or matter by reason of which the records are exempt.
Evidence
In open session, the respondent relied upon the affidavits of Mr Jack Lowe (an assumed identity) of ASIS, Mr Peter Darby (an assumed identity) of the Australian Security Intelligence Organisation (ASIO) and Mr Anthony Sheehan, Deputy Secretary of the International Security, Humanitarian and Consular Group, Department of Foreign Affairs and Trade (DFAT).
Each of those witnesses was cross-examined on behalf of the applicant.
Each of those witnesses also gave evidence before us in confidential session. On 25 May 2021, the Commonwealth Attorney-General issued a certificate under s.36 of the Administrative Appeals Tribunal Act 1975 (Cth) placing an obligation on the Tribunal not to disclose:
a.the matters contained in the confidential affidavit sworn by the person given the assumed identity of Jack Lowe of the Australian Secret Intelligence Service
b.the matters contained in the confidential affidavit sworn by Peter Darby of the Australian Security Intelligence Organisation
c.the matters contained in the confidential affidavit affirmed by Anthony Sheehan of the Department of Foreign Affairs and Trade
d.the matters contained in the confidential affidavits described in the confidential schedule, together with the schedule itself; and
e.any evidence adduced or submissions made by or on behalf of the respondent concerning or directly or indirectly disclosing any of the matters contained in the confidential affidavits or parts thereof.
Jack Lowe
In his open evidence Mr Lowe notes his experience of more than 25 years with ASIS. He described that experience as follows in paragraph [2] of his open affidavit:
2. As a result of my background and experience, I have expertise with respect to:
2.1. ASIS's role and how it operates;
2.2. intelligence and counter intelligence activities;
2.3. national security, defence, foreign relations and liaison relationship matters, including what may put these at risk; and
2.4. the importance of maintaining the secrecy of sensitive information concerning ASIS.
Having heard from him in greater detail in closed session, we are fully satisfied with his expertise on those matters. He described himself as having gained knowledge across a wide range of roles and responsibilities related to ASIS’s functions and operations, and we are also satisfied that that statement is correct.
At paragraph [7] of his open affidavit, Mr Lowe states that he has personally reviewed all of the records for which exemption is claimed under s.33(1)(a) of the Archives Act:
I have personally reviewed each folio over which an exemption is sought in whole or part and formed an opinion on whether disclosure of the information could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth. In my opinion, with the exception of some material I have decided can now be released, the exemptions claims made by the National Archives of Australia (NAA) should be maintained. I have asked for arrangements to be made for the further material to be released.
We were impressed with the diligence, care and expertise with which Mr Lowe approached his task of examining the records and the possible consequences of their release. We found his evidence to be reliable.
The functions of ASIS are described in s.6 of the Intelligence Services Act 2001 (Cth) (the IS Act). Sections 6(1)(a) to (e) provide:
(1) The functions of ASIS are:
(a) to obtain, in accordance with the Government's requirements, intelligence about the capabilities, intentions or activities of people or organisations outside Australia; and
(b) to communicate, in accordance with the Government's requirements, such intelligence; and
(ba) to provide assistance to the Defence Force in support of military operations and to cooperate with the Defence Force on intelligence matters; and
(c) to conduct counter-intelligence activities; and
(d) to liaise with intelligence or security services, or other authorities, of other countries; and
(da) to cooperate with and assist bodies referred to in section 13A in accordance with that section; and
(db) to undertake activities in accordance with section 13B; and
(e) to undertake such other activities as the responsible Minister directs relating to the capabilities, intentions or activities of people or organisations outside Australia.
Section 13A of the IS Act provides for cooperation by ASIS with other intelligence agencies, including ASIO and other bodies. Section 13B provides for activity to be undertaken overseas by ASIS for specific purposes connected with ASIO.
Some of the activities of ASIS have been put into the public domain. In a speech in 2012 the then Director-General of ASIS remarked that:
Australia's national security now depends on a network of international intelligence partnerships that extends well beyond our traditional allies - the US, Britain, Canada and New Zealand - whose contributions remain of critical importance, particularly that of our major ally the United States. ASIS now liaises with over 170 different foreign intelligence services in almost 70 countries - where many close partnerships and vital links exist with agencies in North and South Asia, ASEAN, Europe and the Middle East
He also said:
A core part of ASIS business is risk management. Our work is inherently risky because we’re asked to do things that other arms of government cannot do. We have to manage risk across the whole range of our activity, from keeping our own staff and agents safe, to ensuring the integrity of our operational work and the validation of our sources
At paragraphs [28]-[48] of his open affidavit Mr Lowe says:
Australia is also part of the '5 Eyes' intelligence sharing partnership together with its traditional allies and closest partners, the US, Britain, Canada and New Zealand. This partnership is of critical importance to Australia and provides substantial benefits expressed in the capabilities and effectiveness of Australian intelligence agencies, including ASIS.
The Australian Government's reliance on ASIS information
Without accurate advice from ASIS the Australian Government's capacity to respond to threats to Australia's national interests may be significantly reduced. For instance, the Government may not receive timely forewarning of threats to Australia, and its capacity to take appropriate action to deal with them may be diminished.
If ASIS's ability to perform its functions is jeopardised, the Australian Government's ability to protect and promote Australia's national interests will be compromised. Depending on the significance of the information disclosed, that compromise could be catastrophic.
The importance of secrecy to ASIS
As explained in general terms below, and in more detail in my confidential affidavit, it is essential that ASIS operates in secrecy to protect, amongst other things the identity of ASIS staff members and agents, the intelligence ASIS obtains, the information shared with ASIS in confidence by liaison partners and other government agencies, as well as the details of ASIS's sensitive operations, techniques, capabilities, methods and internal administrative arrangements.
Secrecy is necessary in order for ASIS to effectively:
·collect foreign intelligence: in order to do so effectively ASIS must operate in a clandestine and deniable fashion so as not to alert the owners of the information and provide them with the opportunity to circumvent ASIS's operations;
·minimise the risk of harm to staff members and agents: ASIS often depends on the willingness of staff and agents to putting their lives or liberties (and, in some circumstances, those of their families) at considerable risk to collect intelligence. The risks to staff, agents (and at times their families) may persist long after the relevant ASIS operation, and/or the person's association with ASIS, ceases;
·maintain the confidence of the many persons, agencies and countries which provide information to ASIS: if those on whom ASIS depends for its operational effectiveness lose confidence in ASIS's willingness and ability to maintain the confidentiality of information provided on the understanding that it will not be disclosed, it is likely to result in information of vital importance to Australia's natural security being withheld;
·minimise the damage to Australia's international reputation if it was discovered to be conducting operational activities; and
·maximise ASIS's ability to obtaining foreign intelligence for the Australian Government.
I have taken into account that the access request pertains to records from the 1970s.
However, public release of information from the 1970s about ASIS's activities, including those involving foreign partners, can damage Australia's national security, defence and international relations, particularly where it gives foreign intelligence agencies insights into ASIS's areas of interest, methods and capabilities.
Likewise, the public release of historical 'administrative' information can cause damage depending on the nature of the information. It could, for instance, provide an insight into the number and type of personnel deployed, the assistance provided by liaison services, or ASIS's capabilities at particular point in time, which could ultimately lead to a reduction in the information available to ASIS now as well as adverse consequences for ASIS staff members and agents (as outlined at [32.2] above) or operational security.
In my opinion, that some historical administrative information has been released from these records does not mean that all historical administrative information can be released without damage to security, defence or international relations. In my opinion, releasing further such information could be expected to cause such damage.
The consequences of disclosure of ASIS information
The consequences of disclosure of ASIS information can be significant for ASIS and the Australian Government, including in some of the ways noted above. If information is released pursuant to an application to the Archives, it becomes available to the public on the NM's website in a manner which confirms that it is a government record. This readily and directly exposes the information to scrutiny, including by way of mosaic analysis.
Mosaic analysis
Mosaic analysis is a method of piecing together numerous, disparate and often innocuous pieces of information. Individual and seemingly bland pieces of information can be collated from multiple sources and considered collectively in a way that enables reliable inferences to be drawn about potentially highly sensitive matters (or, possibly reveals a complete or near complete picture of a secret matter).
The public disclosure information which may not, of itself, appear to be detrimental may nevertheless be of significance to someone skilled at applying mosaic analysis.
Mosaic analysis of publicly disclosed information about ASIS could be used to assist in revealing or confirming matters which are otherwise secret and to identify potential weaknesses and vulnerabilities of ASIS.
It can be difficult, if not impossible, to quantify the likelihood that public disclosure of a specific piece of information will contribute to a successful and harmful application of mosaic analysis. It is not possible to know precisely what other information is known or available, or might become known or available in the future, to those who would apply mosaic analysis. This is particularly so where:
·the mosaic analysis may be conducted by persons who are capable of employing sophisticated information gathering and analytical techniques;
·the extent to which such persons possess the other 'pieces' in the mosaic is unknown to ASIS; and
·ASIS may therefore never be in a position to know that mosaic analysis has been used to reveal or confirm secret information and may, accordingly, never be in a position to address or ameliorate the risks that flow from that discovery.
The consequences of disclosure of even seemingly innocuous ASIS information can be significant for ASIS and the Australian Government and in those cases is likely to damage Australia's security.
Speculation versus confirmation
Unofficial speculation in the media, literature and the public domain has a different intelligence value from official confirmation of the correctness or existence (or otherwise) of a particular matter.
Information released by the NAA under the Archives Act is made available to the general public in a way that confirms that it is from a government record. Official confirmation of this kind can aid ASIS's adversaries, such as a hostile foreign intelligence service skilled at mosaic analysis, to build a picture of ASIS, well beyond what ASIS intended to divulge. In this way, the release of even seemingly innocuous ASIS information may assist an adversary to interfere with ASIS or to damage Australia's national security.
EXEMPTION CLAIMS
At p 11 T3, the applicant states in his application for access to the Chile records that he had already viewed the parts of the Allende record that were released by the NAA in 2007, but is 'applying for any further material relating to ASIS presence and operations in Chile from 1971 to 1974.’
That ASIS had a presence and undertook operations in Chile around that time has been publicly acknowledged. Mr Warner notes in his speech (annexure 'JL-1' to this affidavit) that there was publicity in 1977 about ASIS operations in Chile.
It is in this context that parts of the records have been released. However, when assessing information sought under the Archives Act, ASIS must take into account the risk that a failure to identify and exempt sensitive information may damage ASIS's capacity to obtain intelligence required to protect Australia's interests in the future. For this reason, a very careful assessment is undertaken to guard against the risk that the disclosure of historical information, including sometimes small and discrete pieces of information, will harm Australia's national security.
Although the relevant records are now almost 50 years old, in my view the public disclosure of the remaining material in the Chile and Allende records that has been exempted from release could reasonably be expected to compromise the activities of ASIS and impair its ability to carry out its statutory functions.

Asked in chief in the open session about the Five Eyes partnership, Mr Lowe said that the arrangement is based on both formal and informal agreements around the sharing of information, and other forms of cooperation as well. He said the partnership makes a significant contribution to Australia’s understanding of, particularly, regional affairs, where Australia may not have a significant presence.
He said that he had considered the fact that many of the documents said to be exempt come from the 1970s. As a consequence, some of the documents fell below the exemption threshold set out in the Archives Act and therefore have been released. In other cases, the passage of time has not been sufficient to remove or degrade the sensitivity of the information to the point where it can be released. He gave as examples of sensitive administrative matters which cannot be released, issues around the nature of the communications used, and for example cryptographic material, which remains very sensitive to this day.
He said that his examination of the documents began with the view that material must be released unless there is a legitimate ground within s.33 of the Archives Act not to release it. He took a nuanced view of the documents based upon his own experience over many years, and in a variety of roles within ASIS.
In explaining mosaic analysis, he referred to the Bellingcat investigative journalism website, which has collected and published information from open source materials in order to paint a picture, and which has published the methods it employed. For example, he said, they claimed to have identified Russian intelligence officers said to be responsible for the Skripal poisonings. He said that they use web-scraping tools to call up parts of information that they think might be connected with particular types of activities or particular individuals, and said that once you have one thread to pull on, that generally leads to others, so that by accumulating data, images and information, you eventually reach a point where you feel you have enough to make an informed assessment. Seemingly innocuous documents, when analysed appropriately, can reveal a great deal of information.
Bringing the analogy closer to the task performed with the documents said to be exempt in these proceedings, he said that while the events of the 1970s are seemingly frozen in time, the facts surrounding them can have implications for the present. He said that he would be able to illustrate that point better in closed session.
Mr Lowe said that he was aware that there was material that had been put in the public domain by current and former Directors-General and others, and that there was no attempt to seek an exemption for material which was traversed in those statements.
In the course of his cross-examination he confirmed that he had reviewed all the documents for which an exemption was claimed.
Peter Darby
The evidence of Mr Darby in open session showed that until his retirement in June 2017, he was a First Assistant Director-General in ASIO, and has worked as an employee of that organisation for more than 40 years. Mr Darby examined 12 folios within the records to the extent that they contained information relevant to ASIO. To the extent to which the basis could be explained in open session, Mr Darby did so in his open affidavit at paragraphs [14]-[27]:
The ASIO exemptions
I have reviewed the folios which contain the ASIO exemptions. For the reasons I will now outline, in my view these exemptions are necessary to avoid damage to the security and international relations of the Commonwealth.
It is fundamental to ASIO's effective operation that the strictest possible secrecy be maintained in relation to the identity of staff, the specific details of its areas of interest and knowledge, the identity of persons the subject of security interest, the extent of its ability to obtain intelligence in relation to those areas and persons, its sources, investigative techniques and work methods, and the extent of its intelligence holdings.
Where claims or assertions are made about ASIO matters, this secrecy includes neither confirming nor denying if certain activities have occurred, as to do so could compromise current or future activities or operations, expose ASIO's collection and analysis methods, or place officers or other persons at risk.
Disclosure of this information may be damaging to Australia's security and international relations, even where the information is historical.
Operating in secrecy allows ASIO to:
·maximise the prospect of obtaining intelligence;
·maximise the prospect of assisting other agencies to disrupt ventures and prosecute individuals who threaten the security of Australia, its people and its interests;
·minimise the risk of harm to its employees and affiliates, as collection of intelligence often depends on the willingness of those persons to put their lives and liberties (and in some circumstances, those of their families) at considerable risk. These risks can persist long after the person's association with ASIO has ceased and it is ASIO's policy to protect the identity of current and former employees and affiliates from disclosure; and
·minimise the risk of subjects of security interest being aware of intelligence collection activities.
Without ASIO's advice, the Australian Government's ability to receive timely forewarning of threats to Australia's security would be severely diminished, and its capacity to take appropriate action to deal with threats would be severely impaired. While the above considerations do not have the consequence that ASIO information can never be disclosed, they do indicate that such disclosure should not occur where to do so would undermine ASIO's ability to fulfil its core functions.
The material within the ASIO exemptions includes sensitive details of the identities of ASIO's staff and ASIO methods and procedures which may still be employed today. Disclosure could undermine ASIO's ability to gather intelligence relevant to security.
Other than in very limited circumstances, protecting the identity of current and former ASIO employees is critical to ASIO's ability to effectively perform its functions. In particular:
·apart from a very small number of senior executive service officers, all ASIO employees are required to take steps to prevent disclosure of the fact they work for ASIO; and
·protecting the identity of ASIO employees is a key part of ensuring the secrecy and confidentiality that is critical to much of ASIO's work.
o   the disclosure of the identity of ASIO employees may identify past operational activities in which they have been involved;
o   warn targets that they were or are of security interest; and
o   reveal ASIO modus operandi.
Additionally, protecting the identity of current and former ASIO employees is critical to ensuring the personal safety of those individuals and their families. In my experience, certain persons, groups and/or foreign intelligence agencies have a particular interest in obtaining national security information, including ASIO information, and are willing to expend significant resources to pursue that through lawful or unlawful means available to them.
The likelihood of persons, groups and/or foreign intelligence agencies being interested in information identifying current and former ASIO employees and the importance of preserving this anonymity is further highlighted by the fact that since ASIO's inception, attempts have been made to identify, photograph and conduct surveillance of ASIO employees. Such attempts have been made by persons involved in politically motivated violence and foreign intelligence services involved in espionage and acts of foreign interference.
In addition, disclosure of some of the exempted material would also reveal the existence of relationships, including the nature and extent of these relationships, between ASIO and foreign countries and/or their intelligence services. ASIO relies on relationships with foreign Governments and Government organisations as a way of collecting information relevant to security.
ASIO's relationships with foreign partners are primarily founded on mutual interest and confidentiality. There is an expectation, both on the part of the foreign partner and ASIO that the relationship itself, and any information shared or capability jointly developed will be kept confidential. In some circumstances this expectation extends even after the relationship is no longer active, or the intelligence or capability is no longer current. Releasing this information may lessen the confidence of those countries or agencies in ASIO to adequately protect details of that liaison, which could impact on their willingness to provide intelligence to ASIO.
If ASIO is unable to, or is perceived to be unable to, protect any intelligence or capabilities shared by foreign partners, it would undermine those relationships, either through partners imposing certain conditions and limitations around the engagement, temporarily reducing the level and depth of engagement, or in extreme cases, permanently ceasing the sharing of intelligence and capability development with ASIO altogether. This would have significant detrimental consequences for ASIO's ability to perform its statutory functions, and for Australia's national security more broadly.
The release of some details may also assist foreign intelligence services in their mosaic analysis, allowing them to piece together fragmentary information and obtain a better historical picture of ASIO's or other Australian intelligence service's areas of interest, relationships with foreign countries, capabilities and methods. Mosaic analysis is a method by which disparate and often innocuous pieces of information can be pieced together from multiple sources to enable reliable inferences to be drawn about highly sensitive information. Whilst public disclosure of the individual pieces may not appear to be detrimental, it may provide significant assistance to someone who is well versed in mosaic analysis (like a foreign intelligence service). Disclosure of this information may be prejudicial even where the information is historical, as these details of ASIO's or other Australian intelligence service's methods, relationships and procedures may still be employed today. Any one of these details considered by itself without any additional information or background may not be prejudicial, but when combined with other known information or details may contribute to a more complete picture which could be harmful to ASIO's and Australia's interests.
Anthony Sheehan
Mr Sheehan gave limited evidence in open session about having seen a number of documents containing allegedly exempt material, and signalled that in the closed session he would identify those documents and explain why it is that the disclosure of information from those records would likely prejudice the security or international relations of the Commonwealth. He examined the documents he saw only from the point of view of DFAT and not from the point of view of any other agency.
Consideration
Mr Latham, counsel for Dr Fernandes, asked us to put various questions to the witnesses called in closed session and leading counsel for the respondent, Mr Berger QC, did ask questions either in those terms or in substance to the same effect, and we took those answers into account, and asked a number of questions of our own of Mr Lowe and other witnesses from whom we heard.
The evidence in closed session led us to be clear that the exemption in s.33(1)(a) of the Archives Act was properly claimed in the case of both the Chile and Allende records. In reaching that conclusion we were much assisted by the careful and detailed written and oal evidence of Mr Lowe in particular, who spent many hours over some months examining and considering the documents.
He began his task afresh and reviewed the documents after others had already done so. His work led him to suggest the release of some documents, which were subsequently released to the applicant following his recommendation.
In some cases, documents containing material that was exempt were released in part at the suggestion of Mr Lowe or those whose work preceded his.
In other cases, documents containing some exempt material were not released in part. When considering whether we ought to exercise our discretion under s.44(7) of the Archives Act to release parts of the documents, we attempted to keep our function proportionate to the utility of the task involved, and we also took into account what we found was a careful and detailed analysis of all of the documents by Mr Lowe. We took a sample of the documents rather than conducting a line by line analysis of all of them, for the purpose of deciding whether non-exempt parts of documents ought to be released. The sample satisfied us that if we were to release non-exempt parts of those documents, no useful purpose would be established by the release, because either no information would be thereby released, or the information released would be trivial. That has led us not to take the exercise further by spending time in detailed examination of documents not included in our sample, and accordingly we decided not to exercise our discretion under s.44(7) of the Archives Act.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe, Deputy President B W Rayment OAM QC & The Hon. John Pascoe AC CVO, Deputy President

............................[sgd]...............................
Associate
Dated: 1 November 2021

Dates of hearing: 2, 3 & 4 June 2021

Counsel for the Applicant: Mr I Latham

Solicitors for the Applicant: Beston Macken McManis

Counsel for the Respondent: Mr A Berger QC; Ms I Sekler

Solicitors for the Respondent: Australian Government Solicitor

(2A) An agency is exempt from the operation of this Act in relation to the following documents:

(a) a document (an intelligence agency document) that has originated with, or has been received from, any of the following:

(i) the Australian Secret Intelligence Service;
(ii) the Australian Security Intelligence Organisation;
(iii) the Inspector-General of Intelligence and Security;
(iv) the Office of National Intelligence;
(v) the Australian Geospatial-Intelligence Organisation;
(vi) the Defence Intelligence Organisation;
(vii) the Australian Signals Directorate

(b) a document that contains a summary of, or an extract or information from, an intelligence agency document, to the extent that it contains such a summary, extract or information.

We need not concern ourselves with the reasons why Parliament has taken a different approach in the two different regimes.

[2021] AATA 3990

1 November 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Procedural Fairness

Statutory Construction

Proportionality

Remedies

Dates of hearing:	2, 3 & 4 June 2021
Counsel for the Applicant:	Mr I Latham
Solicitors for the Applicant:	Beston Macken McManis
Counsel for the Respondent:	Mr A Berger QC; Ms I Sekler
Solicitors for the Respondent:	Australian Government Solicitor