Fewster and Director-General, National Archives of Australia
[2022] AATA 1331
•24 May 2022
Fewster and Director-General, National Archives of Australia [2022] AATA 1331 (24 May 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2018/5815
Re:Alan Fewster
APPLICANT
AndDirector-General, National Archives of Australia
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:24 May 2022
Place:Sydney
The decision of the National Archives of Australia made 29 April 2019 is affirmed.
............................[SGD]..................................
Deputy President J W Constance
CATCHWORDS
ARCHIVES – exempt records – history of the Australian Secret Intelligence Service – 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 issued – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Archives Act 1983 (Cth)
Intelligence Services Act 2001 (Cth)CASES
Fernandes and National Archives of Australia [2011] AATA 202
Fernandes and National Archives of Australia [2014] AATA 180
Re G R Slater and Brian Field Cox, Director-General, Australian Archives [1988] AATA 110
Secretary, Department of Foreign Affairs and Trade v Whittaker (2005) 143 FCR 15UNCLASSIFIED REASONS FOR DECISION
Deputy President J W Constance
24 May 2022
INTRODUCTION
The National Archives of Australia was established by the Archives Act 1983 (Cth) (the Act). One of its functions is “preserving and making publicly available the archival resources of the Commonwealth”.[1]
[1] Archives Act 1983 (Cth) s.2A.
The function of making resources publicly available is subject to various restrictions imposed by the Act. One of these restrictions is to not disclose material which is determined to be an exempt record, as defined in the Act.
In June 2018, Mr Fewster sought access to the following records[2] held by National Archives:
Series A12392, Volume 3 – “[History compiled by the Department of Foreign Affairs:] Post-War Development of Australia’s Intelligence Machinery: A Documentary Survey Part 3 – Australian Secret Intelligence Service”;
[2] Exhibit OT1 at 4-5.
National Archives has provided to Mr Fewster a copy of the records with parts redacted. It claims that the redacted material is exempt and therefore not able to released.
Mr Fewster is seeking a review of the National Archives’ decision. For reasons set out in these reasons for decision, the decision under review will be affirmed.
THE LEGISLATION
Unless Commonwealth records are “exempt records” within the Act, National Archives is required to make the records available for public access once they fall within the open access period.[3] It is not in dispute that the documents in issue in this application fall within the open period.
[3] 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.
Section 33 of the Act provides in part:
(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; ….
BACKGROUND
The following six paragraphs are taken from the Applicant’s Statement of Facts, Issues and Contentions[4]. The facts stated are not in dispute.
[4] Dated 17 February 2020.
The Applicant is a journalist and an author. He is proposing to write a book on the life of a Walter Cawthorn who, during the years 1960 and 1968, was the Director-General of the Australian Secret Intelligence Service (ASIS). The documents the Applicant seeks from the Respondent span from 1954 to 1976 but relate to those years and that individual.
On 2 September 2018, the Respondent advised the Applicant that it was unable to notify him of a decision regarding the Application within the timeframe stipulated under subsection 40(3) of the Act. Pursuant to subsection 40(8) of the Act, the Respondent was deemed to have made a decision refusing to approve access to the record requested under the Application on the ground that the record is an exempt record.
On or around 8 October 2018, the Applicant requested a review of the decision of 2 September 2018 under subsection 43(3) of the Act.
On 29 April 2019, a delegate of the Respondent issued a decision that the record requested under the Application is ‘open with exception’ on the basis that disclosure of the information or matter could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth. The claim that the information or matter is exempt has been made under paragraph 33(1)(a) of the Act.
Pursuant to section 38 of the Act, the Respondent issued a decision to release a number of documents, requested under the Application, with parts redacted to the Applicant.
On 3 July 2019, the Tribunal ordered that, pursuant to subsection 40(11) of the Act, the Applicant’s application be extended to a review of the 29 April 2019 decision of the Respondent.
THE ISSUE FOR DETERMINATION
The issue for determination is whether those parts of the documents to which Mr Fewster has not been granted access are exempt records within the meaning of section 33 of the Act and, if so, whether the Tribunal should exercise its discretion in subsection 44(7) of the Act to give access to, or to a copy of, part or parts of the exempt records.
CONTENTIONS ON BEHALF OF MR FEWSTER
One of the key objects of the Act is “preserving and making publicly available the archival resources of the Commonwealth.” [5]
[5] Subparagraph 2A(a)(ii) of the Act.
The test of an exempt document set out in subsection 33(1) is a positive test that has to be established by the Respondent on the basis of probative evidence. The words of the subsection “should have their ordinary English language meaning understood in the context of the statute rather than the definition as set out in the ASIO Act”.[6]
[6] Applicant’s Statement of Facts, Issues and Contentions dated 17 February 2020 at para. 13.
The Oxford English Dictionary defines “expect” as “regard as likely”.
The test to be applied to the documents in question is to be applied at the time of the Tribunal’s decision and not at the time of the creation of the documents.
The damage that is to be shown to be expected must be damage to the security, defence or international relations of the Commonwealth.
Further it was argued that, on the basis of decided cases, the “damage” referred to in subsection 33(1)(a) falls into four categories:
1Prejudice to the flow of information to Australia;
2Identification of ASIO officers or sources of information;
3Disclosure of methodology; and
4Information that would allow people to avoid detection or prevent Australia collecting information about their activities.[7]
[7] Applicant’s Statement of Facts, Issues and Contentions dated 17 February 2020 at para. 17.
A decision-maker must bring to his/her assessment “a perspective of time and an appreciation of events long past.”[8] The documents in issue were created around 1952.
[8] Applicant’s Statement of Facts, Issues and Contentions dated 17 February 2020 at para. 18.
Mr Fewster accepts that “if disclosure is proven to lessen the confidence which another country would place in the Government of Australia then that is sufficient ground for a finding that the disclosure of that information could reasonably be expected to damage international relations. The underlying premise to that proposition is that a decreased confidence would lead to decreased cooperation and an inhibition of the flow of communications.” [9]
[9] Applicant’s Statement of Facts, Issues and Contentions dated 17 February 2020 at para. 20.
The onus of establishing that part of a document is an exempt record rests on the National Archives. This is provided for in section 51 of the Act. Counsel argued that “acknowledging the risk of restating a statutory test, the Tribunal is to assess whether on the basis of probative evidence, there are real and substantial grounds for thinking that it is likely that the disclosure of the documents could result in the requisite damage.”[10]
[10] Applicant’s written submissions para. 27.
Counsel referred me to the decision of this Tribunal in Re G R Slater and Brian Field Cox, Director-General, Australian Archives[11] in which it was said:
The expectation of damage to international relations must be reasonable in all the circumstances, having regard to:
a)the nature of the information
b)the circumstances in which it was communicated
c)the nature and extent of the relationship.[12]
[11] [1988] AATA 110.
[12] [1988] AATA 110, [55].
PRINCIPLES TO BE APPLIED
Having considered the various judgements and decisions to which I have been referred by the parties, I have concluded that the following principles are applicable.
(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.[13]
[13] Fernandes and National Archives of Australia [2011] AATA 202.
(d)The test to be applied to the documents in question is to be applied at the time of the Tribunal’s decision and not at the time of the creation of the documents.[14]
[14] This proposition was referred to by the Full Court of the Federal Court in Secretary, Department of Foreign Affairs and Trade v Whittaker (2005) 143 FCR 15, without dissent.
(e)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.[15]
(f)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.[16] The Inspector-General’s evidence is not binding on the Tribunal.[17]
(g)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.
(h)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.[18]
(i)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 of the Commonwealth.
(j)The meaning of the word “damage” should not be restricted to particular categories of damage. I do not accept the argument put on behalf of Mr Fewster in this regard.
(k)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.”[19]
(l)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.[20]
(m)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.[21] 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.
EVIDENCE
[15] Fernandes and National Archives of Australia [2014] AATA 180.
[16] Section 50A.
[17] Fernandes and National Archives of Australia [2014] AATA 180.
[18] Fernandes and National Archives of Australia [2014] AATA 180.
[19] Fernandes and National Archives of Australia [2014] AATA 180, [34].
[20] Fernandes and National Archives of Australia [2014] AATA 180, [35].
[21] Re G R Slater and Brian Field Cox, Director-General, Australian Archives [1988] AATA 110, [29] ff.
Certificate under section 36 of the Administrative Appeals Tribunal Act
On 27 July 2020, the Attorney-General issued a certificate under subsection 36(1) of the Administrative Appeals Tribunal Act 1975 (Cth).[22]This subsection provides:
Attorney-General may issue 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 or 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.
[22] Exhibit OR1.
The following provisions referred to limit disclosure of the matter to members of the Tribunal constituted to hear the application. There are exceptions to this requirement which are not relevant to this application.
The Attorney-General certified that:
Disclosure, whether direct or indirect, of the matters contained in:
1. the confidential affidavits sworn by Mr Paul Symon, Director-General of the Australian Secret Intelligence Service, on 6 March 2020 and 8 July 2020
2. the confidential affidavit affirmed by Mr Edward Lightfoot, Deputy Director of the Defence Intelligence Organisation, on 3 July 2020
3. the confidential affidavit affirmed by Ms Abigail Bradshaw, Head of the Australian Cyber Security Centre, Australian Signals Directorate, on 7 July 2020
4. the confidential affidavit affirmed by Mr Peter Darby (an authorised assumed identity), Australian Security Intelligence Organisation, on 23 June 2020
5. the confidential affidavit sworn by Mr Justin Hayhurst, Deputy Secretary, Indo-Pacific Group of the Department of Foreign Affairs and Trade, on 24 July 2020, other than paragraphs 1-8
and 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 those confidential affidavits or parts of them would be contrary to the public interest because the disclosure would prejudice the security, defence or international relations of Australia.
It is important to note that this certificate relates only to the evidence referred to. It does not seek to prevent the Tribunal freely exercising its judgement in deciding the issues before it and (if it decides that it is correct to do so) varying the decision of the National Archives so as to provide that some or all of the disputed material be released to Mr Fewster.
Testing the evidence
The very nature of an application such as this means that an applicant cannot see the material in question and is therefore severely restricted in the questions his or her Counsel can ask in order to test the evidence presented. The task is made even more difficult when, as in this application, a certificate is issued restricting the disclosure of the evidence relied on by the Respondent. This places a particular obligation upon the Tribunal to test and carefully evaluate all of the evidence.
In accordance with the usual practice of the Tribunal, I invited Counsel for Mr Fewster to provide a list of the questions he wished to have asked of the witnesses. These were provided in writing. During the closed hearing I obtained answers to all of the questions provided. I did not put all of them verbatim to the relevant witness. The answers to some were apparent from the documents themselves; the answers to others were given during evidence in chief.
Evidence of Mr Symon, Director-General of the Australian Secret Intelligence Service
Mr Symon provided an open affidavit dated 17 October 2019[23] and gave evidence at the hearing.
[23] Exhibit OR2.
Mr Symon has over 30 years’ experience in the military and is responsible for the control and management of ASIS under the Intelligence Services Act 2001 (Cth). He has “expertise with respect to:
·the role of ASIS and how it operates;
·intelligence and counterintelligence activities;
·matters of (including risks to) national security, defence, intelligence and foreign liaison relationships; and
·the circumstances in which there is a need to maintain the secrecy of sensitive information concerning ASIS.”[24]
[24] At para. 4.
ASIS was formed in 1952 as Australia’s overseas human intelligence collection agency. It has continued in this role since its formation. ASIS’s core function is to “obtain, at the request of the Australian Government, secret human intelligence withheld by design. That is, covert foreign intelligence, which is obtained in a variety of ways including through intelligence officers, or case officers, managing agents.” [25] Intelligence obtained is also provided to foreign partners, as considered appropriate.
[25] At para. 17.
ASIS also liaises with foreign partners and conducts counter-intelligence activities. Subject to Ministerial direction, ASIS conducts a range of highly sensitive operations abroad.
In this regard, ASIS liaises with over 200 different partners around the world. These relationships are vital to its work “whether through the receipt of intelligence from them, the provision of assistance in kidnap cases, safety of life situations, or cooperation in areas of mutual interest such as terrorism.” [26]
[26] At para. 27.
Australia, the United States of America, Britain, Canada and New Zealand form the intelligence sharing alliance known as the “5 Eyes”. This alliance is of critical importance to Australia and boosts the capabilities and effectiveness of Australia’s intelligence agencies including ASIS.
Secrecy in its operations is essential for ASIS to collect intelligence and minimise the risk of harm to its members, maintain the confidence of other agencies and countries, minimise damage to Australia’s international reputation and maximise the prospect of obtaining foreign intelligence for the Australian Government.
Public release of information about the activities of ASIS, can be prejudicial to Australia’s national security, particularly where it provides insights to foreign intelligence agencies about ASIS’s areas of interest, and its methods and capabilities.
Intelligence gathering agencies use mosaic analysis as “a method of piecing together numerous, disparate and often innocuous pieces of information. By this process, individual and seemingly bland pieces of information are collated from multiple sources and considered collectively in a way that enables reliable inferences to be drawn about potentially highly sensitive matters. …… Mosaic analysis of publicly disclosed information from or 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.” [27]
[27] At para. 36.
“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 archival records, may provide ASIS’s adversaries with a number of advantages when applying mosaic analysis.” [28]
[28] At para. 39.
In relation to the material claimed to be exempt in this matter, Mr Symon stated:
I have personally examined the exempted material in Part 3. Other than the additional material which I now consider can be released to the applicant, referred to in paragraph 14 [of the open affidavit] above, for the reasons I will outline in my confidential affidavit it is my view that all of the exemptions are necessary and none of this material should be publicly disclosed.
In my judgment, 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 confidential affidavit, I also consider the public disclosure of this information could reasonably be expected to damage Australia’s international relations.
When Mr Symon gave evidence at the open hearing, he said that there is an understanding between governments that before material is released, the views of other governments likely to be affected, will be obtained.
Mr Symon accepted that the passage of time mitigates the sensitivities that a government may have and that government sensitivities may vary over time. However, these specific “tiles” of information that ASIS seeks to protect in these proceedings remain very sensitive. The inappropriate disclosure of information, even decades after it came into existence, may endanger the lives of people involved.
Evidence of Ms Bradshaw, Head of the Australian Cyber Security Centre
Ms Bradshaw provided an unclassified affidavit dated 7 July 2020[29] and gave evidence at the hearing.
[29] Exhibit OR3.
The Australian Cyber Security Centre (ACSC) is part of the Australian Signals Directorate (the Directorate), an independent statutory agency within the Defence Portfolio. Ms Bradshaw has responsibility for the strategic level management of the Directorate’s international relationships, including the critical partnerships with Australia’s closest allies.
Ms Bradshaw’s evidence relates to folios 91 and 153 of the claimed exempt documents. Those folios contain information that relate directly to an international intelligence partner of Australia. That partner has requested that the material not be disclosed. It is the opinion of Ms Bradshaw that “the disclosure could reasonably be expected to cause damage to [the Directorate’s] relationship with that partner and consequently to the security, defence and international relationships of the Commonwealth.” [30]
[30] At para. 7.
Details of the sensitivity of the information are set out in Ms Bradshaw’s classified affidavit.[31]
[31] Transcript of 30 July 2020 at 44.
Ms Bradshaw stated, in part:
Intelligence provided by [the Directorate] meets the intelligence requirements of the Australian Government in areas such as countering terrorism, providing support to the Australian Defence Force, and preventing and disrupting cybercrime undertaken by entities outside Australia.
In order to perform its functions, [the Directorate] maintains close working relationships with its international intelligence partners. Australia relies on intelligence provided to it by [the Directorate’s] international intelligence partners, and information received from them plays a role in supporting the Australian Government in relation to international affairs, defence and national security.
These international partnerships are predicated upon mutual confidence in the protection of each country’s sensitive information. In the context of these relationships it is accepted that shared data, reporting, sources, techniques and other information will be protected by each partner in the same way that he originator of the material protects it.
This understanding is fundamental to the relationships [the Directorate] has with its intelligence partners and it is important to retain the confidentiality underpinning those relationships. Partnerships or alliances would be put in jeopardy if we were unable to protect information that is entrusted to Australia.
If the information in dispute were publicly disclosed, I consider that the relevant partner would see this failure to honour our obligations to protect the information it provides to [the Directorate]. In my view, there is a risk that other international intelligence partners would have reduced confidence in [the Directorate’s] ability to protect similar information provided by them. This has the potential to cause damage to [the Directorate’s] relationships with those partners and, as a consequence, the security, defence and international relations of the Commonwealth.[32]
[32] At paras. 13-16, 20.
Evidence of Mr Hayhurst, Deputy Secretary, Department of Foreign Affairs and Trade
Mr Hayhurst provided an affidavit dated 24 July 2020.[33] He did not give evidence at the hearing as Mr Fewster did not require him for cross-examination.
[33] Exhibit OR4.
As Deputy Secretary, Mr Hayhurst is responsible for Australia’s bilateral relations with Australia’s partners in Asia and North America, as well as Australia’s regional political, security, economic and development assistance interests. In his role he receives daily diplomatic and intelligence reporting on developments across the region and has regular direct interactions with Australia’s Ambassadors and High Commissioners in the region as well as foreign Heads of Mission accredited to Australia.
In the opinion of Mr Hayhurst, disclosure of information referred to in his confidential affidavit would likely damage Australia’s security and international relations.
Evidence of Dr Kearnan, First Assistant Secretary, Intelligence Assessments of the Defence Intelligence Organisation
Dr Kearnan provided an affidavit dated 15 February 2021[34] and gave evidence at the hearing.
[34] Exhibit OR8.
The Defence Intelligence Organisation (DIO) is the Defence strategic all-source assessment agency which provides senior Defence and government decision-makers with expertise in matters relating to global security, weapons of mass destruction, foreign military capabilities, defence economics and transnational terrorism. It produces intelligence assessments on countries and foreign organisations relevant to Australia’s security and strategic environment which include military capabilities, weapon systems, cyber threats and defence-related technologies.
Dr Kearnan has examined the claimed exempt material in respect of which the DIO has sought exemption. For reasons outlined in her classified affidavit, it is her view that these exemptions are necessary, and that the material should not be publicly disclosed. In reaching this conclusion she has taken the age of the material into account.
In the opinion of Dr Kearnan, “public disclosure of this information could reasonably be expected to damage international Defence relationships and contribute to putting Australian citizens at risk when travelling through the countries mentioned.”[35]
Evidence of Mr Darby, former First Assistant Director-General of the Australian Security Intelligence Organisation (ASIO)
[35] At para. 20.
Mr Darby provided an affidavit affirmed on 31 October 2019[36] and gave evidence at the hearing.
[36] Exhibit OR6.
Mr Darby retired from his full-time position with ASIO in June 2017. He is now engaged in a part-time position. His employment by ASIO encompasses more than 35 years and includes senior positions in intelligence functions. These positions include operational, analytical, corporate management and international engagement roles and responsibilities.
Mr Darby has expertise with respect to the role and functions of ASIO, intelligence, matters of (including risks to) national security, defence, foreign relations and liaison relationships and the need to maintain the secrecy of sensitive information concerning ASIO.
In his unclassified affidavit, Mr Darby set out his reasons for his opinion that the relevant redactions sought by ASIO are necessary:
I have reviewed the folios which contain the ASIO redactions. For the reasons I will now outline, in my view these redactions are necessary to avoid damage [sic] the security or international relations of the Commonwealth.
It is fundamental to ASIO’s effective operation that the strictest possible secrecy be maintained in relation to the specific details of its areas of interest, 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 prejudicial, even where the information is historical.
The material within the ASIO redactions includes sensitive details of ASIO methods and procedures which may still be employed today. Disclosure could undermine ASIO’s ability to gather intelligence relevant to security. The redacted material also includes reference to the identity of confidential sources and information which was provided to ASIO on a confidential basis, the disclosure of which would also be damaging.
In addition, disclosure of some of the exempted material would also reveal the existence of 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. 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 the availability of this type of intelligence were to be limited in any way, it would cause damage to security by impacting on ASIO’s ability to fulfil its statutory functions.[37]
[37] At paras. 12-15.
CONSIDERATION
Having carefully considered all the evidence (both classified and unclassified), I have reached the conclusion that each of the documents and redacted text which has not been released to Mr Fewster is an exempt record within the meaning of the Act. I have decided that each contained “information or matter the disclosure of which under [the] Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth”. I have decided also that there is no basis to exercise the discretion set out in subsection 44(7) of the Act.
In some instances, I was satisfied that the damage could be reasonably expected to one of the three, in some instances to more than one. In relation to some documents/redactions the consideration of the effect on relations with other governments was a relevant consideration; in others the application of the mosaic theory was relevant. However, it is to be noted that these were not the only considerations.
I am satisfied that the experts who gave evidence were well-qualified and honest witnesses who gave evidence to the best of their recollections. I accept their evidence. They explained the basis for their opinions in more detail in the closed hearing.
In reaching this conclusion I have applied the principles I have set out earlier in these reasons for decision.
CONCLUSION
The decision of the National Archives of Australia made 29 April 2019, will be affirmed.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance …………………[SGD]………………..
Associate
Dated: 24 May 2022
Dates of hearing: 29-31 July 2020, 19-21 April 2021 Solicitors for the Applicant: Mr W Sharpe, HWL Ebsworth Lawyers Solicitors for the Respondent: Ms I Sekler, Australian Government Solicitor
0
3
0