Fernandes and Director-General, National Archives of Australia

[2020] AATA 123

Fernandes and Director-General, National Archives of Australia [2020] AATA 123 (13 January 2020)

Division:GENERAL DIVISION

File Numbers:         2017/4836

Re:Dr Clinton Fernandes

APPLICANT

AndDirector-General, National Archives of Australia

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:13 January 2020

Place:Sydney

The decision of the National Archives of Australia made on 10 August 2017, as varied on 10 July 2018 and 1 July 2019, is affirmed.

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Deputy President J W Constance

CATCHWORDS

ARCHIVES – Commonwealth Archives – 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 – public interest certificate – decision under review affirmed

LEGISLATION

Archives Act 1983(Cth) ss 2A, 3, 31, 33, 38, 39, 44, 51

Administrative Appeals Tribunal Act 1975 (Cth) s 36

CASES

Fernandes and National Archives of Australia [2011] AATA 202

Fernandes and National Archives of Australia [2014] AATA 180

McKinnon v Secretary, Department of Treasury [2006] HCA 45

National Archives of Australia v Fernandes [2014] FCAFC 158

Re BLBS and Director-General of Security and Minister for Foreign Affairs [2013] AATA 820

Re Fewster and National Archives of Australia [2014] AATA 295

Re G R Slater and Brian Field Cox, Director-General, Australian Archives [1988] AATA 110

SECONDARY MATERIALS

Harvey Barnett, Tale of the Scorpion (Allen & Unwin, 1988)

Report on the Australian Secret Intelligence Service, Public Edition March 1995

Richard Woolcott, The Hot Seat (Harper Collins, 2007)

REASONS FOR DECISION

Deputy President J W Constance

13 January 2020

1. The National Archives of Australia was established by the Archives Act 1983 (Cth). One of its functions is “preserving and making publicly available the archival resources of the Commonwealth”.[1]

   [1] Section 2A of the Act.

2. The function of making resources publicly available is subject to various restrictions imposed by the Act. One of these restrictions is to limit access to any material which is determined to be an exempt record, as defined in the Act.

3. On 16 September 2014, Dr Fernandes applied to the National Archives for access to the following records:

   ASIS [Australian Secret Intelligence Service] records on Political Developments in Portuguese Timor, 1974-1977; ASIS records on Indonesian view of Portuguese Timor, 1974-80.[2]

   I will refer to these records as “the requested records”.

   [2] Exhibit R5 at 13.

4. On 3 July 2017, a delegate of the Director-General advised Dr Fernandes that the existence of the requested records was neither confirmed nor denied. This course is available to the Director-General under section 39 of the Act. This decision was affirmed following Dr Fernandes’ request for an internal review and, on 14 August 2017, he applied for a review by this Tribunal.[3]

   [3] Exhibit R5 at 3.

5. On 8 February 2018, the Director-General advised Dr Fernandes and the Tribunal that there were in existence records falling within the scope of Dr Fernandes’ application for access and that he (the Director-General) no longer relied on section 39. Some of these records were made available to Dr Fernandes. The Director-General denied access to the remaining records on the basis that they were exempt under the Act. This application is now concerned with the latter records only.

6. On 20 May 2019, the Attorney-General issued a certificate under section 36 of the Administrative Appeals Tribunal Act 1975 (Cth) in the following terms:

   I, CHRISTIAN PORTER, Attorney-General for the Commonwealth of Australia, hereby certify pursuant to subsection 36 (1) of the Administrative Appeals Tribunal Act 1975 that disclosure, whether direct or indirect, of:

   (i)the matters contained in the confidential affidavit of 2017/4836 sworn by Paul Bruce Symon, Director-General of the Australian Secret Intelligence Service on 9 May 2019 together with a schedule identifying the documents over which exemption is claimed by the respondent

   (ii)the matters contained in the confidential affidavit in 2017/7744 sworn by Paul Bruce Symon, Director-General of the Australian Secret Intelligence Service on 9 May 2019 and

   (iii)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 and schedule or parts thereof,

   would be contrary to the public interest because the disclosure would prejudice the security, defence or international relations of Australia.[4]

   [4] Exhibit R4.

   LEGISLATION

7. Unless Commonwealth records are “exempt records” within the meaning of the Act, the National Archives is required to make them available for public access once they fall within the open access period.[5] It is not in dispute that the requested records fall within the open access period.

   [5] A table for the determination of the open access period in relation to particular documents is set out in subsection 3(7) of the Act.

8. Section 31 of the Act provides, in part:

   Records in open access period to be publicly available

   (1A) This section applies to a Commonwealth record that:

   (a)is in the open access period; and

   (b)is in the care of the Archives or in the custody of a Commonwealth institution; and

   (c)is not an exempt record.

   (1) Subject to this Part, the Archives must cause the record to be made available for public access.

9. Subsection 33(1) provides, in part:

   Exempt records

   (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;

   (b)information or matter:

   (i)     that was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity ) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity ); and

   (ii)      which the foreign entity advises the Commonwealth entity is still confidential; and

   (iii)     the confidentiality of which it would be reasonable to maintain;

   …

   (e)information or matter the disclosure of which under this Act would, or could reasonably be expected to:

   (i)     prejudice the conduct of an investigation of a breach, or possible breach, of the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper administration of the law in a particular instance;

   (ii)     disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law; or

   (iii)     endanger the life or physical safety of any person;

   …          

10. Section 38 provides:

    Access to part of exempt record

    Where a record that would otherwise be required to be made available for public access under this Part is an exempt record, the Archives may, where it is reasonably practicable to do so, make arrangements for part of, or a copy of part of, that record to which access could be given without disclosing information or matter by reason of which the record is an exempt record to be made available for public access in accordance with this Part.

11. Subsection 44(7) sets out the Tribunal’s powers on review and provides, in part:

    (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.  

12. Section 51 of the Act provides:

    Onus

    In proceedings before the Tribunal in pursuance of an application under section 43:

    (a)  the Archives has the onus of establishing that a decision given by the Archives was justified or that the Tribunal should give a decision adverse to the applicant; and

    (b)  the Tribunal is not restricted by any determination made at any time under section 35.

    ISSUES FOR DETERMINATION

13. The issues for determination are as follows.

    (1)Are all or any of the records which have been identified, but in respect of which access has not been granted by the Director-General, exempt records within the meaning of section 33 of the Act?

    (2)If so, should the Tribunal exercise the discretion contained in subsection 44(7) to give access to, or to a copy of, part of the exempt records?

    THE ARGUMENT ON BEHALF OF DR FERNANDES

14. The following contentions were made on behalf of Dr Fernandes.

    The exercise of the power under subsection 44(7) of the Act

15. When exercising this power, the Tribunal stands in the shoes of the National Archives and can exercise the powers available to it under the Act.[6]

    [6] National Archives of Australia v Fernandes [2014] FCAFC 158 at [14].

    The material already on the public record

16. It was argued that in exercising the discretion given to it by the Act, the Tribunal should give weight to the effect of documents already on the public record in relation to Timor.[7] Counsel referred to the following evidence in support of this proposition.

    [7] Transcript, 27 May 2019, at 8-9.

    Report on the Australian Secret Intelligence Service, Public Edition March 1995

17. Counsel for Dr Fernandes referred to the following extract as being “the crux”[8] of his submission:

    15.77 The picture of ASIS which is presented to the Australian public should, as nearly as possible, resemble the true position. It seems to us to be self-evident that the persistence of an image of ASIS based on untruths and half-truths is contrary to the public interest. Within the constraints of secrecy which we have discussed in detail elsewhere, the Australian public should know what their foreign intelligence service is and is not doing in their name and on their behalf. We also think it very much in the interests of the Service that this should occur.

    15.78   The essence of the strategy which we recommend is that as much information as possible about ASIS should be on the public record.[9]

    The publication “The Hot Seat” by Richard Woolcott[10]

    [8] Transcript, 27 May 2019, at 7.

    [9] Exhibit A1 at 257.

    [10] Extracted in Exhibit A1; published by Harper Collins (2007).

18. Mr Woolcott is a former Ambassador to Indonesia. In his book, referring to his appointment, he wrote that:

    I was fully aware that I was stepping into something of a diplomatic minefield compared to a more comfortable and less exacting European post such as Rome. Fortunately I had a very hardworking, able and reliable team of officers in Jakarta … Allan Taylor, a Tasmanian Rhodes Scholar and until recently director-general of the Australian Secret Intelligence Service (ASIS), was the political counsellor.[11]

    [11] Exhibit A1 at 268.

19. Mr Woolcott took up his appointment in Indonesia shortly after December 1974.[12]

    [12] Exhibit A1 at 268.

20. Mr Woolcott also refers to the death of Australian journalists in East Timor in 1975:

    My first knowledge of this matter came on the night of 17 October when an ASIS officer came to the Residence in Jakarta with an intercepted message, which he said I must see immediately.[13]

    The publication “Tale of the Scorpion” by Harvey Barnett[14]

    [13] Exhibit A1 at 269.

    [14] Extracted in Exhibit A1; published by Allen & Unwin (1988).

21. Mr Barnett refers to the dismissal of the Director of ASIS in 1975:

    Gough Whitlam elected to dismiss the Director of ASIS, William T. Robertson, CBE, MC, for allegedly conducting operations overseas without the government’s knowledge…He was accused of collecting, without authorisation, intelligence on East Timor which in 1975 was going through the turmoil of invasion by Indonesia.

    Ample press coverage has revealed that a patriotic Australian citizen, Frank Favaro, was resident in Timor at that time and was pleased to record his observations of local events for those in his homeland who were interested. He spoke to a number of people and entities, including ASIS. This information was purveyed by his auditors to the appropriate government departments in Canberra and, because of Timor’s obvious importance to Australia as near neighbour, formed part of the intelligence mosaic flowing in at that time from many different sources.[15]

    [15] Exhibit A1 at 272-273.

    Relevant considerations

22. It was submitted on behalf of Dr Fernandes that:

    … material, whose disclosure could not reasonably be expected to cause damage to Australia’s national security, defence and international relations, should be disclosed. Relevant to the determination are the following criteria:

    i.Whether or not the material is in the public domain.

    ii.Whether or not the material has been previously disclosed by the Commonwealth.

    iii.Whether or not the material is only of historical interest.

    iv.The level to which the material is sanitised; that is to say to what extent the reader understands from the material how the raw data was obtained.

    Re BLBS and Director-General of Security and Minister for Foreign Affairs[16]

    [16] [2013] AATA 820.

23. Counsel referred to the following extract from the Tribunal’s reasons in BLBS:

    Counsel for the respondents drew the Tribunal’s attention to the fact that Australian courts, when considering public interest immunity, have repeatedly emphasised the significance which must be given to the views of senior government officials on matters of national security.

    …

    [Counsel] submitted that those principles applied equally to matters to be determined in the Tribunal.

    However, that submission misapprehends the respective constitutional and legal position of courts and this Tribunal. The function of this Tribunal when exercising the very merits review function Parliament has assigned to it is not analogous to judicial review. When the AAT exercises a jurisdiction in the Security Appeals Division, it is exercising executive not judicial power.

    Independent review of ASIO’s decisions was first introduced as a part of a package of reforms passed by the Parliament in 1979 following the report of the Royal Commission on Intelligence and Security constituted by Justice Hope. It is no disrespect to ASIO under its current leadership to recognise that Justice Hope identified significant community disquiet and concern regarding the accountability of ASIO. The findings of the Hope Report led the then government to repeal the former Australian Security Intelligence Organisation Act 1956 and to replace it with a new Act.[17]

    [17] [2013] AATA 820 at [23], [25]-[27].

24. Although the application now being considered was dealt with in the Freedom of Information Division of the Tribunal and not the Security Division, the principles set out above are equally applicable. This is so by reason of the certificate of the Attorney-General to which I have referred.

    APPLICABLE PRINCIPLES

25. In Re Fewster and National Archives of Australia,[18] I set out the following principles which I consider to be applicable in applications such as that now under consideration:

    [18] [2014] AATA 295 at [14].

    (a)Once a record falls within the open access period, prima facie an applicant has a right to access it.

    (b)The prima facie right to access is subject to the record not being an exempt record within the meaning of section 33 of the Act.

    (c)A review by the Tribunal of a decision under the Act is a conventional merits review. This means that the Tribunal is required to make the correct decision on the evidence before it at the time it makes its decision.[19]

    (d)In reaching its decision, the Tribunal must exercise its independent judgement; it is not bound to accept the opinion of any witness before it. The Tribunal will treat with respect and carefully consider all of the evidence.[20]

    (e)The Act requires that “[b]efore determining that the record is not an exempt record, the Tribunal must request the Inspector-General of Intelligence and Security to appear personally and give evidence” on specified matters.[21] The Inspector-General’s evidence is not binding on the Tribunal.[22]

    (f)Each record claimed to be exempt is to be considered individually. The quantity of material released as compared to the quantity in dispute is not a relevant consideration.

    (g)In interpreting the provisions of subsection 33(1)(a), including the word “security”, the usual rule of statutory interpretation should be applied, namely that the words should have their ordinary English language meaning understood in the context of the statute.[23]

    (h)Consistently with the principle stated in the previous sub-paragraph, the words “could reasonably be expected to cause damage” should be given their ordinary meaning. The ordinary meaning of these words does not require a finding that the disclosure of the record in question will in fact cause damage to security, defence and/or international relations.

    (i)The meaning of the word “damage” should not be restricted to particular categories of damage…

    (j)The “references to security, defence or international relations are references to distinctly unique concepts, albeit that inevitably in some instances there may be some overlap as to whether or not a matter that affects the international relations of Australia might also be a matter that affects the security of the country, and that significant damage that is occasioned to international relations may have consequential and predictable effects that flow on to damage security interests.”[24]

    (k)The risk of mere embarrassment to, or the risk of exposure to public discussion and/or criticism of, Australia and its agencies are not of themselves sufficient to justify a conclusion that a document is an exempt document.[25]

    (l)In making its decision the Tribunal may consider the “mosaic theory” that organisations can obtain valuable information by piecing together a number of small and apparently insignificant pieces of information. The argument is that the Tribunal should consider this possibility when considering the release of small pieces of information which form part of a larger document. Consideration should also be given to the effect of the release of apparently insignificant information from several documents.[26] In my view this is a matter to be considered on the facts of a particular case if the evidence before the Tribunal warrants such consideration. It should not be regarded as a principle of general application.

    [19] Fernandes and National Archives of Australia [2011] AATA 202.

    [20] Fernandes and National Archives of Australia [2014] AATA 180.

    [21] Section 50A of the Act.

    [22] Fernandes and National Archives of Australia [2014] AATA 180.

    [23] Fernandes and National Archives of Australia [2014] AATA 180.

    [24] Fernandes and National Archives of Australia [2014] AATA 180 at [34].

    [25] Fernandes and National Archives of Australia [2014] AATA 180 at [35].

    [26] Re G R Slater and Brian Field Cox, Director-General, Australian Archives [1988] AATA 110 at [29]ff.

    THE EVIDENCE OF MR P B SYMON, DIRECTOR-GENERAL OF THE AUSTRALIAN SECRET INTELLIGENCE SERVICE

26. Mr Symon provided two affidavits sworn 15 March 2019[27] and gave evidence at the hearing, including at the closed hearing.

    [27] Exhibits R1 and R2.

27. Mr Symon has held the position of Director-General of the Australian Secret Intelligence Service since 18 December 2017.

28. Mr Symon gave evidence that:

    ·a core function of ASIS is to obtain foreign intelligence through the management of a network of agents working overseas;

    ·the foreign intelligence is obtained without the official sanction of the owners of the information;

    ·operation in secrecy is essential for the operations of ASIS;

    ·“without accurate advice from ASIS, the Australian Government’s capacity to respond in a timely and well informed way to threats to Australia’s national interests, including security, may be substantially reduced.”[28]

    ·the public disclosure of ASIS information immediately exposes the information to scrutiny, including by way of mosaic analysis;

    ·mosaic analysis is a method of piecing together numerous disparate and often innocuous pieces of information by intelligence services; it can assist in revealing matters otherwise secret to ASIS and can be used to identify potential weaknesses and vulnerabilities of the Service;

    ·in intelligence operations, speculation is conjecture without an evidence base whereas official confirmation relies on official evidence; ASIS resources would be employed against official confirmation, but unlikely in relation to speculation;

    · “there is … a significant difference between unofficial speculation and official confirmation of the correctness or existence (or otherwise) of a particular matter. Official confirmation, such as through the release of Archives records, may provide ASIS’s adversaries with a number of advantages when applying mosaic analysis”;[29]

    ·the effluxion of time is not the only factor when judging whether a source should be revealed or not.

    [28] Exhibit R1 at [35].

    [29] Exhibit R1 at [40].

1. Specifically, in relation to the request of Dr Fernandes, Mr Symon said in his affidavit that:

   11. After the NAA [National Archives of Australia] confirmed the existence of records relevant to Dr Fernandes’ access application, ASIS reviewed the records in accordance with arrangements between ASIS and the NAA. A total of 12 ASIS records were identified. Some folios and parts of folios were released to Dr Fernandes from each of those records. All of the material in the records was determined by the NAA to be exempt from release under s 33(1)(a) of the Archives Act.

   12. I have personally examined the exempted material in the ASIS records. For the reasons I will outline in my classified affidavit, it is my view that all of the exemptions are necessary and none of this material should be publicly disclosed. In my judgement, public disclosure of this information could reasonably be expected to cause damage to the security of the Commonwealth. Specifically, such disclosure could reasonably be expected to compromise the activities of ASIS and impair its ability to carry out its statutory functions. For the reasons I will outline in my classified affidavit, I also consider that public disclosure of this information could reasonably be expected to damage Australia’s international relations.[30]

   [30] Exhibit R2 at [11]-[12].

2. In giving evidence at the open hearing, Mr Symon said that some of the concerns he held in relation to disclosing further documents were the identity of information, the intelligence gathering techniques and the identities of ASIS officers. He agreed that these details could be deleted from any documents produced to Dr Fernandes by a process called “sanitisation”.[31] He confirmed that by referring to a “public record” he was referring to “a document that has been authorised and released by either the government or an agency of the government.”[32]

   [31] Transcript, 27 May 2019, at 31.  

   [32] Transcript, 27 May 2019, at 32.

   CONSIDERATION

   Issue 1:          Are all or any of the records which have been identified, but in respect of which access has not been granted by the Director-General, exempt records within the meaning of section 33 the Act?

3. I accept the proposition put forward by Counsel for Mr Fernandes that it is not for ASIS to decide which documents, or parts of documents, should be released.[33] The provisions of the Act providing for review of specified decisions of the Director-General make this abundantly clear.[34] In fairness to Counsel for the Director-General, he did not submit otherwise.

   [33] Outline of Submissions of the Applicant, 26 May 2019, at 5-6.

   [34] Part V, Division 4 of the Act.

4. Counsel for the Director-General argued that in matters such as this, when the Tribunal is concerned with the highly specialised area of national intelligence, significant weight should be attached to the evidence of experts such as Mr Symon. I agree with this proposition. However, it does not lessen the obligation on the Tribunal to carefully evaluate all of the evidence before it. This includes reaching a conclusion as to the weight to be accorded to the evidence of each witness who appears before it.

5. In BLBS the Tribunal said, in part:

   The Tribunal can rigorously test classified materials in [the Security Appeals] Division while keeping those materials secret. If the Tribunal’s conclusions differ from those submitted for by the respondents, the Tribunal must provide reasons. If they involve a finding that information in an assessment upon which a conclusion is based should be superseded, the Tribunal must state its findings in the terms of s 43AAA(3). No special rules are needed to engender respect for the Director-General and officers of ASIO. The Tribunal has often found occasion to acknowledge the professionalism, fairness and thoroughness of the witnesses for ASIO.[35]

   [35] [2013] AATA 820 at [34].

6. In applying subsection 33(1) I need to consider the meaning of the words “could reasonably be expected to cause damage”.

7. In McKinnon v Secretary, Department of Treasury,[36] Hayne J said, in part:

   In Attorney-General’s Department v Cockcroft [(1986) 10 FCR 180] the Full Court of the Federal Court considered the operation of s 43(1)(c)(ii) of the [Freedom of Information] Act – a provision which contained the words “could reasonably be expected to prejudice the further supply of information”. In their joint reasons, Bowen CJ and Beaumont J rightly pointed out [at 190] that it was undesirable to attempt any paraphrase of these words. Thus when their Honours said, as they did [at 190], that the words required a “judgement 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 certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood [Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 122-123] , is doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, “to place an unwarranted gloss upon the relatively plain words of the Act” [(1986) 10 FCR 180 at 190]. And the same approach should be taken to the expression “reasonable grounds” when it is used in s 58(5) of the Act.

   [36] [2006] HCA 45 at [61].

8. Various provisions of the Act draw a distinction between the use of the word “would” and the word “could”.[37] I accept the argument put by Counsel for the Director-General that “‘would’ … imports notions of probability or likelihood as opposed to ‘could’ which connotes notions of possibility or something that is not absurd, irrational or very unlikely but not something that needs to approach the balance of probabilities or likelihood before it can be accepted as met”.[38]

   [37] See paragraph 33(1)(a) cf. paragraphs 33(1)(c),(d), and (f) of the Act.

   [38] Transcript, 27 May 2019, at 15.

9. As Counsel for Dr Fernandes correctly pointed out, section 51 of the Act makes it clear the onus of showing that the decision of the Director-General is justified rests on the National Archives.

10. Taking this into account, on the basis of the evidence of Mr Symon given in the open and closed sessions, I am satisfied that each of the records in question contains information which, if disclosed, could reasonably be expected to cause damage to the security and to the international relations of the Commonwealth.

11. Clearly Mr Symon was particularly well-qualified to express the opinions he did. I am satisfied that Mr Symon was an honest witness who gave his evidence in a careful and considered manner. I accept his evidence.

12. It follows that each of the requested records is an “exempt record” within the meaning of subsection 33(1) of the Act.

    Issue 2:         Should the Tribunal exercise the discretion contained in subsection 44(7) to give access to part or parts of the identified documents?

13. On the basis of the evidence of Mr Symon, I am not satisfied that it would be practicable to give access to, or to a copy of, part of any of the exempt records in a form that would not disclose information or matter by reason of which the particular record is an exempt record.

    CONCLUSION

14. The reviewable decision, being the decision of the Director-General, National Archives of Australia made 8 February 2018 to refuse to grant Dr Fernandes access to certain records created or controlled by the Australian Secret Intelligence Service (ASIS) relating to political developments in Portuguese Timor 1974-1977 and/or ASIS records on Indonesian views of Portuguese Timor 1974-1980, will be affirmed.

15. I have accepted the evidence given by Mr Symon in both the closed and open hearings. Unless requested, I do not propose to issue classified reasons for decision in this matter.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate

Dated: 13 January 2020

Date of hearing:	27 May 2019
Counsel for the Applicant:	I Latham
Solicitors for the Applicant:	Beston Macken McManis
Counsel for the Respondent:	A Berger
Solicitors for the Respondent:	Australian Government Solicitor