Fernandes and National Archives of Australia
[2011] AATA 202
•28 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 202
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4657
GENERAL ADMINISTRATIVE DIVISION )
Re CLINTON FERNANDES
Applicant
AndNATIONAL ARCHIVES OF AUSTRALIA
Respondent
DECISION
TribunalJustice Downes, President
Date28 March 2011
PlaceSydney
DecisionThe 42 documents identified in the Tribunal’s reasons are exempt documents within ss 31 and 33(1)(a) & (b) of the Archives Act 1983 (Cth) except for the material already made available for public access and the material specified in the reasons for decision.
.................[sgd].............................
Justice Downes
President
CATCHWORDS
FREEDOM OF INFORMATION – Commonwealth Archives – exempt records – documents affecting national security, defence or international relations – information communicated in confidence by a foreign government
ADMINISTRATIVE LAW – merits review – closed hearing – role of member in closed hearing – confidential reasons
RELEVANT ACTS:
Archives Act 1983 (Cth) ss 31, 33
Freedom of Information Amendment (Reform) Act 2010 (Cth) ss 35, 40
Administrative Appeals Tribunal Act 1975 (Cth) s 36
CITATIONS
Drake v Minister for Immigration (1979) 46 CLR 409
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
28 March 2011
Justice Downes, President
1. The National Archives of Australia is generally obliged to make Commonwealth records more than 30 years old available to the public. Certain records are exempt from this requirement.
2. In April 2007 Clinton Fernandes applied for access to records of the Defence Intelligence Organisation relating to Indonesia and East Timor. The request was refined to a period in late 1975 during which there were hostilities involving Indonesian military action.
3. There was significant and unfortunate delay in dealing with the request. Ultimately, in September 2009, Dr Fernandes sought review in this Tribunal of the Archives’ deemed refusal of access. Further delay occurred while Archives, on the advice, primarily of the Defence Signals Directorate, considered what documents were covered by the request and whether part or all of those documents should be made available. In the result, 42 documents were identified and parts of each of those documents were determined to be exempt.
4. My task is to review the decisions made by the Archives. I have decided that some further material should be released.
The Legislation
5. The Archives Act 1983 (Cth) has recently been amended. However, the effect of s 40 of the Freedom of Information Amendment (Reform) Act 2010 (Cth) is that the amendments apply only to subsequent applications.
6. The exemption provisions relevant to this application are as follows:
33Exempt 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 communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth, being information or matter the disclosure of which under this Act would constitute a breach of that confidence;
The Documents
7. The Archives has identified and released parts of the 42 documents. Dr Fernandes has been given photocopies of these documents in which those parts for which exemption is claimed have been redacted by being marked out in blocks with black ink. I have seen all the documents unredacted, with the parts for which exemption is claimed highlighted. My task is to determine whether any of the redacted material is not exempt.
8. The Archives has prepared a schedule of the documents for which partial exemption is claimed, which contains the following:
Document No.
Title/Description
No. of folios
Folios for which partial exemption is claimed
Exemption category claimed
1
Office of Current Intelligence Situation Report 14/75 – Portuguese Timor – 1 October 1975
4
Folios 3 and 4
s 33(1)(a)
2
Office of Current Intelligence Situation Report 15/75 – Portuguese Timor – 7 October 1975
4
Folios 3 and 4
s 33(1)(a)
3
Office of Current Intelligence Situation Report 16/75 – Portuguese Timor – 8 October 1975
3
Folio 3
s 33(1)(a)
4
Office of Current Intelligence Situation Report 17/75 – Portuguese Timor – 9 October 1975
4
Folios 3 and 4
s 33(1)(a)
5
Office of Current Intelligence Situation Report 18/75 – Portuguese Timor – 10 October 1975
3
Folio 3
s 33(1)(a)
6
Office of Current Intelligence Situation Report 19/75 – Portuguese Timor – 13 October 1975
5
Folios 3, 4 and 5
s 33(1)(a)
7
Office of Current Intelligence Situation Report 20/75 – Portuguese Timor – 14 October 1975
4
Folios 2, 3 and 4
s 33(1)(a)
8
Office of Current Intelligence Situation Report 21/75 – Portuguese Timor – 16 October 1975
7
Folios 4, 5, 6 and 7
s 33(1)(a)
9
Office of Current Intelligence Situation Report 22/75 – Portuguese Timor – 17 October 1975
9
Folios 3, 6, 7, 8 and 9
s 33(1)(a)
10
Office of Current Intelligence Note 23/1975 – Portuguese Timor – 18 November 1975
11
Folios 4, 5, 6 and 7
s 33(1)(a) – folios 4, 5, 6 and 7
s 33(1)(b) – folios 6 and 7
11
Office of Current Intelligence Situation Report 23/75 – Portuguese Timor – 20 October 1975
5
Folios 3, 4 and 5
s 33(1)(a)
12
Office of Current Intelligence Situation Report 24/75 – Portuguese Timor – 21 October 1975
6
Folio 3, 4, 5 and 6
s 33(1)(a)
13
Office of Current Intelligence Situation Report 25/75 – Portuguese Timor – 22 October 1975
4
Folios 3 and 4
s 33(1)(a)
14
Office of Current Intelligence Situation Report 26/75 – Portuguese Timor – 23 October 1975
5
Folio 3 and 5
s 33(1)(a)
15
Office of Current Intelligence Situation Report 27/75 – Portuguese Timor – 24 October 1975
5
Folio 3
s 33(1)(a)
Document No.
Title/Description
No. of folios
Folios for which partial exemption is claimed
Exemption category claimed
16
Office of Current Intelligence Situation Report 28/1975 – Portuguese Timor – 27 October 1975
4
Folio 3 and 4
s 33(1)(a)
17
Office of Current Intelligence Situation Report 29/75 – Portuguese Timor – 30 October 1975
6
Folios 3, 4, 5 and 6
s 33(1)(a)
18
Office of Current Intelligence Situation Report 30/75 – Portuguese Timor – 31 October 1975
4
Folio 2 and 4
s 33(1)(a)
19
Office of Current Intelligence Situation Report 31/75 – Portuguese Timor – 3 November 1975
5
Folio 2, 4 and 5
s 33(1)(a)
20
Office of Current Intelligence Situation Report 32/75 – Portuguese Timor – 5 November 1975
4
Folios 1, 3 and 4
s 33(1)(a) – folios 1, 3 and 4
s 33(1)(b) – folios 3 and 4
21
Office of Current Intelligence Situation Report 33/75 – Portuguese Timor – 6 November 1975
5
Folios 3 and 4
s 33(1)(a)
22
Office of Current Intelligence Situation Report 34/75 – Portuguese Timor – 13 November 1975
6
Folios 3 and 4
s 33(1)(a)
23
Office of Current Intelligence Situation Report 35/75 – Portuguese Timor – 17 November 1975
5
Folios 3, 4 and 5
s 33(1)(a)
24
Office of Current Intelligence Situation Report 36/75 – Portuguese Timor – 24 November 1975
5
Folios 3, 4 and 5
s 33(1)(a)
25
Office of Current Intelligence Situation Report 37/75 – Portuguese Timor – 25 November 1975
4
Folios 3 and 4
s 33(1)(a)
26
Office of Current Intelligence Situation Report 38/75 – Portuguese Timor – 26 November 1975
3
Folio 3
s 33(1)(a)
27
Office of Current Intelligence Situation Report 39/75 – Portuguese Timor – 1 December 1975
5
Folios 3, 4 and 5
s 33(1)(a)
28
Office of Current Intelligence Situation Report 40/75 – Portuguese Timor – 3 December 1975
4
Folios 3 and 4
s 33(1)(a)
Document No.
Title/Description
No. of folios
Folios for which partial exemption is claimed
Exemption category claimed
29
Office of Current Intelligence Situation Report 41/75 – Portuguese Timor – 4 December 1975
5
Folios 3 and 4
s 33(1)(a)
30
Office of Current Intelligence Situation Report 42/75 – Portuguese Timor – 8 December 1975
5
Folios 3, 4 and 5
s 33(1)(a) – folios 3, 4 and 5
s 33(1)(b) – folios 3 and 4
31
Office of Current Intelligence Situation Report 43/75 – Portuguese Timor – 9 December 1975
4
Folios 3 and 4
s 33(1)(a)
32
Office of Current Intelligence Situation Report 44/75 – Portuguese Timor – 11 December 1975
5
Folios 3, 4 and 5
s 33(1)(a)
33
Office of Current Intelligence Situation Report 45/75 – Portuguese Timor – 15 December 1975
4
Folios 3 and 4
s 33(1)(a)
34
Office of Current Intelligence Situation Report 46/75 – Portuguese Timor – 17 December 1975
8
Folios 3, 4, 6, 7, 8
s 33(1)(a) – folios 3, 4, 6, 7, 8
35
Office of Current Intelligence Situation Report 47/75 – Portuguese Timor – 18 December 1975
4
Folios 3 and 4
s 33(1)(a)
36
Office of Current Intelligence Situation Report 48/75 – Portuguese Timor – 19 December 1975
4
Folios 3 and 4
s 33(1)(a)
37
Office of Current Intelligence Situation Report 49/75 – Portuguese Timor – 23 December 1975
4
Folios 3 and 4
s 33(1)(a)
38
Office of Current Intelligence Situation Report 50/75 – Portuguese Timor – 24 December 1975
4
Folios 3 and 4
s 33(1)(a)
39
Office of Current Intelligence Situation Report 51/75 – Portuguese Timor – 30 December 1975
5
Folios 3, 4 and 5
s 33(1)(a)
40
Office of Current Intelligence Situation Report 52/75 – Portuguese Timor – 31 December 1975
5
Folios 3 and 4
s 33(1)(a)
41
Portuguese Timor General Reports – 1974-1975
79
Folios 42-53 only contain material within the period 1 October to 31 December 1975, and exemption is claimed for folios 42-43
Other folios which do not contain material within that date range are also
s 33(1)(a) – folios 42 and 43 (folios 1, 3, 9, 11, 23, 37, 41, 54-73, 76 and 77 are also exempt under this provision)
Document No.
Title/Description
No. of folios
Folios for which partial exemption is claimed
Exemption category claimed
exempt or fall into the closed period (folios 1, 3, 9, 11, 23, 37, 41, 54-73, 76, 77 and 79)
42
Joint Intelligence Organisation Joint Service Brief 20/1975 – 6 November 1975
12
Only folio 3 contains relevant material and exemption is claimed for a small portion of that relevant material
s 33(1)(a)
The Task
9. Unlike some cases involving questions of national security the present review is conventional merits review. I am to make the “correct or preferable decision” as to whether any, and if so which, of the redacted material is exempt: Drake v Minister for Immigration (1979) 46 FLR 409 at 419; see also Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 309 [82], 314 [98] and 327 [140].
10. The statutory test, which I must apply, is whether the redacted material contains:
“(a)information or matter the disclosure of which…. could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth”; or
“(b)information or matter communicated in confidence by or on behalf of a foreign government… the disclosure of which… would constitute a breach of that confidence.”
Parts of all 42 documents are claimed to be exempt under s 33(1)(a); parts of three of the documents are said to be exempt under s 33(1)(b).
The Evidence
11. Two witnesses gave affidavit and oral evidence in an open hearing. The witnesses who gave evidence in the open hearing were Stephen McFarlane, the Deputy Director of the Defence Intelligence Organisation and Ian McKenzie, the Director of the Defence Signals Directorate. Affidavit and oral evidence was given in a closed hearing to which only the witness giving evidence and counsel for the Archives were admitted. At my direction further affidavits were filed and further oral evidence was given in a continuation of the closed hearing.
12. On 9 September 2010 the Attorney-General made a certificate under s 36 of the Administrative Appeals Tribunal Act 1975 (Cth) in the following form:
I, Robert McClelland, the Attorney-General for the Commonwealth of Australia, hereby certify pursuant to subsection 36(1) of the Administrative Appeals Tribunal Act 1975 that disclosure of the contents of the confidential affidavit affirmed by Mr Ian Robert McKenzie, Director of the Defence Signals Directorate, on 1 July 2010, paragraph 9 of the confidential affidavit sworn by Mr Stephen Bruce McFarlane, Deputy Director of the Defence Intelligence Organisation, on 13 July 2010, the confidential affidavit described in the schedule of this certificate, the schedule itself, and evidence proposed to be adduced and submissions proposed to be made by or on behalf of the respondent concerning the contents of those confidential affidavits or parts thereof, would be contrary to the public interest because the disclosure would prejudice the security, defence of international relations of Australia.
13. Section 36 is relevantly as follows:
36. Disclosure not required: Attorney-General’s public interest certificate
…
(1)If the Attorney-General certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest:
(a)by reason that it would prejudice the security, defence of international relations of Australia;
(b)by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or
(c)for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed;
the following provisions of this section have effect.
Protection of information etc.
(2)A person who is required by or under this Act to disclose the information or to produce to, or lodge with, the Tribunal the document in which the matter is contained for the purposes of a proceeding is not excused from the requirement but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information or the matter contained in the document is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged.
14. The confidential affidavits read in the closed hearing were covered by the certificate. Paragraphs 1 to 8 of the confidential affidavit of Mr McFarlane have been disclosed because the open affidavit of Mr McFarlane contained identical paragraphs. The oral evidence given and the submissions made in the closed hearing were all within the ambit of the certificate.
The Confidentiality Claim (s 33(1)(b))
15. The claim under s 33(1)(b) is made with respect to two folios of document 10, two folios of document 20 and two folios of document 30. Mr McFarlane gave evidence about the claim for document 20 in the open hearing. He deposed that disclosure of the passages claimed to be exempt would “reveal highly sensitive communications from the US Government which were then, and remain now, confidential”. There is evidence before me, including evidence covered by the certificate, that the material in document 20 was communicated in confidence on behalf of a foreign government and that the government persists in that claim. I am satisfied, based on the material before me and my reading of the material claimed to be exempt, that the material was communicated in confidence, that its disclosure would breach that confidence and that the whole is exempt under s 33(1)(b). I accordingly uphold the claim to exemption for parts of folios 3 and 4 of document 20.
16. Documents 10 and 30 were subject to evidence in the closed hearing. Based on that evidence and my reading of the material I find that the two-part test in s 33(1)(b) is satisfied for both documents. I accordingly uphold the claim for exemption of part of folios 6 and 7 of document 10 and part of folios 3 and 4 of document 30.
The Confidentiality Claim (s 33(1)(a)
17. The remaining claims for exemption have been made under s 33(1)(a). There was open and closed affidavit evidence and open and closed oral evidence by Mr McKenzie. Counsel for Mr Fernandes cross-examined Mr McKenzie. He gave me a list of questions to ask Mr McKenzie in the closed session. I asked all of these questions. I also asked Mr McKenzie detailed questions about the grounds for the claimed exemptions and why particular sentences or paragraphs were covered by them. Because I first saw the material claimed to be exempt during the initial confidential hearing I appointed a further hearing, after I had had the opportunity to study the material, to enable me to ask further questions. That further hearing took most of one day during which I asked the witnesses pointed questions about particular text.
18. In the result I have decided that much of the material for which exemption is claimed satisfies the requirements for exemption but that there are a number of passages which can be released. The passages which can be released are substantially passages which contain material which is not inherently confidential, where disclosure will not incidentally disclose anything that is.
19. The nature of the evidence before me is such that I cannot give extensive open reasons relating to the material which continues to be exempt. My decisions are, however, based particularly on the evidence put before me in closed sessions. I accept that evidence, although I have not accepted that all of the material for which exemption is claimed falls within it.
20. The thrust of the applicant’s case was that the events of the second half of 1975 in East Timor had already received so much publicity and analysis that there could be very little remaining which attracted confidentiality for reasons of national security. The most significant of these was the publishing of the 2007 New South Wales Coroner’s Report into the death of Brian Raymond Peters who was one of a number of journalists who were killed in East Timor in October 1975. The coroner’s report covers one hundred and thirty-two pages. I have read it in full. It covers the events which took place in East Timor, and particularly the deaths of the journalists, in the greatest detail. It contains material relating to the documents which are before me. Generally, however, it does not quote the documents, although it refers to witnesses’ recollections of what was in some of the documents.
21. I have had these considerations at the forefront of my mind in determining what matter in the documents is exempt. Giving full weight, however, to the fact that nearly everything is now known about East Timor in 1975 I have still been satisfied by the confidential evidence before me that the material I do not propose to release is exempt material.
22. Naturally, I have also taken into account that the events covered by the documents took place 35 years ago. I have taken into account that the policy of the Act is that, prima facie, material thirty years old, however confidential it may have been at the time it was prepared, can be taken to have lost that confidentiality. Only material of the most sensitive kind which would still impact on national security, or material given in confidence by a foreign government, should be exempt.
23. Notwithstanding the force of these considerations, which has led me to determine that significant parts of the 42 documents are not exempt, I am nevertheless satisfied that the remaining passages for which exemption is claimed, are exempt.
24. The applicant put a case before me which anticipated that a major part of the reasoning behind the claimed exemptions related to what it might disclose relating to encryption methods and the deciphering of encripted documents. This was no doubt prompted by the material in Mr McKenzie’s open affidavit relating to intelligence sources and capabilities. It was said that the means of deciphering encryptions made with the technology of the 1970’s were now well known. Be that as it may, I am satisfied that the claim for exemption is still made out in principle. To give further reasons would risk disclosure of matter I consider to be exempt.
25. In cases such as this it is sometimes appropriate to prepare separate additional reasons which are not published. However, that suffers from the disadvantage that even more material is kept confidential. Where, as here, I accept the evidence that is before me, except as to its application to some passages, I think the better course is for the reasons to be wholly public, but not to disclose exempt material or confidential reasons supporting the exemption. Any confidential reasons I prepared would draw on the evidence I have accepted which was before me in the closed session.
Material to be Released
26. The parts of the 42 documents which I find not to be exempt under s 33(1)(a) are as follows:
Document 2:
In folio 3, the passage from “The bulk…” to “…larger forces” comprising 3 lines in paragraph 2.
Document 4:
In folio 3, the passage from “There is no evidence…” to “…mission unlikely” comprising 7 lines in paragraph 2.
In folio 4, the passage from “In contrast…” to “…these matters” comprising 4 lines in paragraph 6, the last paragraph of the document.
Document 5:
In folio 3, the passage from “Moerdani…” to “…now under way” comprising 5 lines in paragraph 5.
Document 6:
In folio 4, the passage from “The size of…” to “…Portuguese Timor” comprising 3 lines in paragraph 3.
Document 7:
In folio 3, the passage from “As at 14th October…” to “…around 3500” comprising 2 lines in paragraph 5.
In folio 3 and continued on folio 4, the passage from “Carvalho…” to “…minor conditions” comprising 10 lines in paragraph 8.
Document 8:
In folio 5, the passage from “The new Indonesia…” to “…deployment in Timor” comprising 5 lines in paragraph 1.
In folio 5 and continued onto folio 6, the passage from “According to a…” to “…by 15th November” comprising 20 lines in paragraphs 5 and 6.
In folio 6, the heading “Food Situation” and the passage from “although there are…” to “…neglect of crops” comprising 6 lines in paragraph 3.
In folio 6, the heading “Visit by Australian Party” and the passage from “The group is led…” to “…road into Indonesian Timor” comprising 8 lines in paragraph 4.
In folio 7, the passage from “By late afternoon…” to “…their whereabouts” comprising 3 lines in paragraph 1.
Document 9:
In folio 7, the heading “Indonesian Position at the UN” and the passage from “According to…” to “…for the time being” comprising 5 lines in paragraph 3.
In folio 7, the passage from “Adenan said on…” to “…Indonesia/Portugal talks” comprising 12 lines in paragraph 4.
In folio 8, the passage from “In Jakarta…” to “…UDT and APODETI case” comprising 9 lines in paragraph 2.
In folio 9, the passage from “On the Indonesian…” to “…domestic problems” comprising 6 lines in paragraph 1.
Document 10:
In folio 7, the passage from “a statement in March…” to “…Rajaratnam” comprising 2 lines in paragraph 1.
In folio 7, the passage from “indicate that…” to “…Portuguese Timor” comprising 3 lines in paragraph 1.
Document 11:
In folio 3, the passage from “Balibo, which had…” to “…para-commando companies” comprising 3 lines in paragraph 2.
In folio 3, the passage from “FRETILIN resistance…” to “…other areas” comprising 2 lines in paragraph 2.
In folio 3, the passage from “On the basis of…” to “… on 18th October” comprising 3 lines in paragraph 3.
In folio 3, and continued onto folio 4, the passage from “Of the eight…” to”…We cannot confirm” comprising 2 lines in paragraph 4.
In folio 4, the passage from “that they...” to “…according to plan” comprising 3 lines in paragraph 1 and continued into paragraph 2.
Document 12:
In folio 4, the heading “Military Development” and the passage from “As at 19th October…” to “…the Maliana area” comprising 5 lines of paragraph 1.
Document 17:
In folio 4, the passage from “With the reinforcements…” to “… in Portuguese Timor” comprising 8 lines in paragraph 2.
In folio 5, the heading “Situation in Oecussi” and the passage from “the situation in…” to “…into Indonesian Timor” comprising 6 lines in paragraph 2.
Document 18:
In folio 2, the passage from “The assertion that…” to “…reduced to ashes’” comprising 3 lines in paragraph 1.
In folio 2, the passage from “’It is not…” to “…reduced to ashes’” comprising 3 lines in point 3 of paragraph 3.
Document 19:
In folio 2, the passage from “another urgent request…” to “Australian newsmen’” comprising 3 lines in paragraph 1.
In folio 4, the passage from “There had been no…” to “…in Indonesian hands” comprising 5 lines in paragraph 1.
In folio 4, the passage “FRETILIN’s losses were unknown” comprising 2 lines in paragraph 1.
Document 20:
In folio 4, the heading “Recall of Australian Embassy Official Proposed” and the passage from “The Australian Embassy...” to “… television journalists” comprising 4 lines in paragraph 3.
Document 21:
In folio 3, the passage from “Further south…” to “… by the Indonesians” comprising 3 lines in paragraph 3.
Document 22:
In folio 3, the passage from “Low-level FRETILIN…” to “…Portuguese Timor continues” comprising 2 lines in paragraph 6.
Document 23:
In folio 3, the passage from “At 15th November…” to “…FRETILIN was increasing” comprising 5 lines in paragraph 2.
Document 25:
In folio 4, the passage from “We have no other…” to “… in the August fighting” comprising 6 lines in paragraph 1.
Document 27:
In folio 3, the passage from “Before the FRETILIN…” to “…occupied Atabai” comprising 2 lines in paragraph 2.
In folio 3, the passage from “The FRETILIN defenders…” to “…up operations” comprising 2 lines in paragraph 2.
In folio 5, the passage from “The Indonesians have…” to “… the north coast” comprising 6 lines in paragraph 2.
Document 32:
In folio 5, the passage from “In what seems…” to “…troops, FRETILIN” comprising 2 lines in paragraph 2.
In folio 5, the passage “has advised” in line 2 of paragraph 2.
In folio 5, the passage from “of the impending…” to “…’African Troops’” comprising 2 lines in paragraph 2.
In folio 5, the passage from “these troops would…” to “…for these reports” comprising 5 lines in paragraph 2.
Document 34:
In folio 3, the passage from “Since the capture…” to “…these areas continue” comprising 5 lines in paragraph 1.
In folio 4, the passage from "increased cost ..." to "... other assistance" comprising 2 lines in paragraph 5.
In folio 4, the passage from "agricultural production ..." to "...fully restored" comprising 2 lines in paragraph 6.
In folio 4, the passage from "after the fighting ..." to "...of population" comprising 2 lines in paragraph 6.
In folio 4, the passage from "stockpiling quantities ..." to "...quickly available" comprising 4 lines in paragraph 6.
In folio 4, the passage from "has estimated..." to "...might require" comprising line in paragraph 6.
In folio 4, the passage "tonnes of rice" comprising 1 line in paragraph 6.
In folio 4, the passage "to provide relief food supplies" comprising 1 line in paragraph 6.
In folio 4, the passage from "some supplies..." to "...and Bacau" comprising 4 lines in paragraph 6.
Document 35:
In folio 3, the passage from “Indonesian troops…” to “…occupation of Dili” comprising 2 lines in paragraph 1.
Document 37:
In folio 4, the passage from “(Goncalves was the…” to “…the UDT coup.)” comprising 6 lines in paragraph 2.
Document 39:
In folio 3, the passage from “Indonesian operations in…” to “… delayed the Indonesians” comprising 5 lines in paragraph 1.
In folio 3, the passage from “The most rapid…” to “…the Baucau sector” comprising 2 lines in paragraph 2.
In folio 3, the passage from “In the Dili…” to “…kilometres from Dili” comprising 4 lines in paragraph 3.
In folio 3, the passage from “The western or…” to “… the current offensive” comprising 4 lines in paragraph 4.
In folio 3, the passage from “The Indonesian Air…” to “…in the fighting” comprising 2 lines in paragraph 5.
In folio 4, the passage from “The Indonesian deployment…” to “…the Indonesian advance” comprising 7 lines in paragraph 1.
Document 40:
In folio 3, the passage “The Indonesian advance continues” in line 1 of paragraph 1.
In folio 3, the passage “A press message” in line 3 of paragraph 1.
In folio 3, the passage from “ confirm that the…” to “…on 28th December” comprising 3 lines in paragraph 1.
In folio 3, the heading “Composition of the Provisional Government” and the passage from “The Executive Chairman…” to “…Indonesian-Dominated Advisory Council” comprising 11 lines commencing in paragraph 5 and concluding in folio 4.
Conclusion
27. The decision under review will be set aside. In its place I decide that the parts of the documents identified above are not exempt under s 33(1)(a) or (b) of the Archives Act but that the remaining parts for which exemption is claimed are exempt.
I certify that the twenty-seven (27) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President
Signed: ...................[sgd].......................................................
Samantha Robson, AssociateDate/s of Hearing: 2-3 December 2010, 17 February 2011
Date of Decision: 28 March 2011
Counsel for the Applicant: Mr Ian Latham
Solicitor for the Respondent: Australian Government Solicitor
Counsel for the Respondent: Mr Andrew Berger
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