Fewster and National Archives of Australia
[2014] AATA 295
•14 May 2014
[2014] AATA 295
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0615
Re
Alan Fewster
APPLICANT
And
National Archives of Australia
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 14 May 2014 Place Melbourne The decision of the National Archives of Australia made 30 May 2013, as varied on 9 August 2013 and 24 October 2014, is affirmed.
...........................[sgd].............................................
Deputy President J W Constance
CATCHWORDS
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 – role of Inspector-General of Intelligence and Security in review - disclosure contrary to the public interest – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act (Cth) s 36
Archives Act 1983 (Cth) ss 2A, 3(7), 33, 50A, 51
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 110OPEN REASONS FOR DECISION
Deputy President J W Constance
14 May 2014
INTRODUCTION
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] 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 limit access to material which is determined to be an exempt record, as defined in the Act.
Mr Fewster has sought access to papers produced by the late Sir Keith Waller CBE which are held by National Archives. National Archives has provided copies of these papers to Mr Fewster in a redacted form. 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 and in confidential reasons provided to the Respondent, the decision under review will be affirmed.
THE LEGISLATION
Unless records are “exempt records” within the Act, National Archives is required to make Commonwealth records available for public access once they fall within the open access period.[2] It is not in dispute that the documents in issue in this application fall within the open period.
[2] 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
During the 1970’s the Royal Commission on Security and Intelligence was held. Sir Keith Waller, a very experienced senior diplomat and public servant made submissions to the Commission. Papers held by National Archives in relation to the Commission’s enquiries include three documents classified “A12384, K/21 Sir Keith Waller CBE – Papers produced by” being:
·Political & Intelligence Reporting on Indonesia
·Memorandum for Mr Brownbill
·Memorandum for Sir Keith Waller.
These documents are referred to as Document A, Document B and Document C respectively in these reasons and in the closed reasons.
In September 2011 Mr Fewster applied to National Archives for access to the record A12384 K/21. On 30 May 2013 he was granted access to substantial parts of each of the three documents. Access to the remaining parts was refused on the basis that they were exempt under the provisions of subsection 33(1)(a) referred to above. Prior to the hearing of this application Mr Fewster was granted access to some of those parts initially claimed to be exempt but later determined by National Archives not to be so.
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.
CONTENTIONS ON BEHALF OF MR FEWSTER
It was put by Counsel for Mr Fewster that he has a prima facie right to access the documents, subject to any exemptions properly made out under the Act. As the Tribunal is required to conduct a conventional merits review of the decision of National Archives, it must make the correct decision and in so doing is not bound by the views of any witness or the Inspector-General of Intelligence and Security. This submission is to be understood in the light of section 50A of the Act which provides that before the Tribunal determines that a record is not an exempt record it must request the Inspector-General of Intelligence and Security to appear personally and give evidence.
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.”[3]
[3] Applicant’s written submissions para. 27.
Further it was argued that, on the basis of decided cases, the “damage” referred to in subsection 33(1)(a) falls into four categories:
Prejudice to the flow of information to Australia;
Identification of ASIO officers or sources of information;
Disclosure of methodology; and
Information that would allow people to avoid detection or prevent Australia collecting information about their activities.[4]
[4] Applicant’s written submissions para. 29.
Counsel referred me to the decision of this Tribunal in Re G R Slater and Brian Field Cox, Director-General, Australian Archives[5] 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.[6]
[5] [1988] AATA 110.
[6] [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.[7]
[7] Fernandes and National Archives of Australia [2011] AATA 202.
(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.[8]
(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.[9] The Inspector-General’s evidence is not binding on the Tribunal.[10]
(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.[11]
(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. I do not accept the argument put on behalf of Mr Fewster in this regard.
(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.”[12]
(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.[13]
(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.[14] 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.
THE EVIDENCE
[8] Fernandes and National Archives of Australia [2014] AATA 180.
[9] Section 50A.
[10] Fernandes and National Archives of Australia [2014] AATA 180.
[11] Fernandes and National Archives of Australia [2014] AATA 180.
[12] Fernandes and National Archives of Australia [2014] AATA 180, [34].
[13] Fernandes and National Archives of Australia [2014] AATA 180, [35].
[14] 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
Apart from the documents filed by National Archives as required by section 37 of the Administrative Appeals Tribunal Act 1975 (Cth)[15] and a copy of the redacted documents, all of the evidence before me was the subject of a certificate of the Attorney-General of the Commonwealth issued pursuant to subsection 36(1) of the Administrative Appeals Tribunal Act. 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.
[15] Exhibit R1. These documents relate to the reviewable decision itself and not to the content of the records claimed to be exempt.
The following provisions limit disclosure of the matter to members of the Tribunal constituted to hear the matter. There are exceptions to this requirement which are not relevant to this application.
On 17 April 2014 the Attorney-General certified that:
disclosure of:
a)the contents of the confidential affidavit described in the schedule of this certificate, together with the schedule itself, and
b)any evidence adduced or submissions made by or on behalf of the respondent concerning the matters contained in that confidential affidavit or parts thereof,
would be contrary to the public interest because the disclosure would prejudice the security, defence or international relations of Australia.[16]
[16] Confidential exhibit R2.
It is important to note that this certificate relates only to the evidence referred to and to the schedule to the certificate. 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. The suggestion that a certificate under section 36 of the Administrative Appeals Tribunal Act could in some way act as a “gagging” of the publication of anything to do with the assessment of Australia’s intelligence services in the documents in question is wrong. It is to be noted that much of the assessment by Sir Keith Waller was released to Mr Fewster prior to the issue of the certificate and the hearing of this matter. The Attorney-General did not seek to intervene in these proceedings.
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. 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 witness. 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 witness. The answers to some were apparent from the documents themselves; the answers to others were given during evidence in chief.
CONCLUSION
Having carefully considered all of the evidence, I have reached the conclusion that each redaction in the documents which have been released to Mr Fewster is an exempt record within the meaning of the Archives Act. For the reasons set out in the closed reasons for decision 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”. 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.
The decision of National Archives of Australia made 30 May 2013, as varied on 9 August 2013 and 24 October 2013, will be affirmed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. ..............................[sgd]..........................................
Associate
Dated 14 May 2014
Date(s) of hearing 28 & 29 April 2014 Solicitors for the Applicant HWL Ebsworth Lawyers Solicitors for the Respondent Australian Government Solicitor
3
2
0