McGrath and Director-General, National Archives of Australia
[2020] AATA 1790
•9 June 2020
McGrath and Director-General, National Archives of Australia [2020] AATA 1790 (9 June 2020)
Division:FREEDOM OF INFORMATION DIVISION
File Numbers: 2014/1330-1335; 2014/1337; 2014/1342; 2014/5348-5358; 2014/5360; 2014/5362-5364; 2017/2115
Re:Kim McGrath
APPLICANT
AndDirector-General, National Archives of Australia
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 9 June 2020
Place:Melbourne
The Tribunal decides:
to affirm the 24 decisions of the respondent on the following bases:
(1)With the exception of A1838 1733/3/2 Part 12; Folios 49-65, 77-83, 274‑291, 294-313 the records are exempt records under s 33(1)(a) of the Archives Act 1983 (Archives Act) because they contain information or matter the disclosure of which under the Archives Act could reasonably be expected to cause damage to the security or international relations of the Commonwealth;
(2)A1838 1733/3/2 Part 12; Folios 49-65, 77-83, 274-291. 294-313 are subject to parliamentary privilege and not subject to the Archives Act provided that:
(a)if A1838 1733/3/2 Part 12; Folios 49-65, 77-83, 274-291, 294-313 were subject to the Archives Act, the Tribunal would have to have the opportunity to examine the content of the documents in order to consider whether they are exempt under either or both of ss 33(1)(a) or 33(1)(d) of the Archives Act;
(3)A1838 1733/3/2 Part 6; Folios 183-210 and A1838 1733/3/2 Part 7; Folios 5-32 are not exempt under s 33(2) of the Archives Act but are exempt under s 33(1)(a); and
(4)In accordance with s 38 of the Archives Act, it is reasonably practicable for the respondent to make arrangements for access to be given to a part of, or a copy of part of, each record without disclosing the information or matter by reason of which each record is an exempt record.
……………[sgd]………………….
Deputy President S A Forgie
Catchwords – Archives – access to records – claim that certain records subject to parliamentary privilege and not subject to access under the Archives Act 1983 – claim that all records exempt under s 33(1)(a) – claim that certain records exempt records as subject to legal professional privilege – claim that disclosure of certain records would be a breach of confidence – decisions affirmed.
Legislation
Acts Interpretation Act 1901; s 17(a); s 34AB(1)(c)
Archives Act 1983; s 3; s 20; s 27; s 31; s 33; s 43; s 50; s 57
Archives Bill 1978
Archives (Records of the Parliament) Regulations 1995
Archives (Records of the Parliament) Regulations 2019
Bill of Rights 1688 (UK) 1 Will & Mary, sess 2, c 2
Crimes Act 1914
Freedom of Information Act 1982
Freedom of Information Amendment Act 1991
Freedom of Information Bill 1978
Office of National Assessments Act 1977
Parliamentary Privileges Act 1987; s 13; s 14
Petroleum (Submerged Lands) Act 1967
Petroleum (Submerged Lands) Act 1967 (Vic)
Cases
Aboriginal Legal Service of Western Australia (Inc) v State of Western Australia (1993) 9 WAR 297
Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24; (1988) 19 FCR 223; 81 ALR 710
Alister v R (1984) 154 CLR 404
AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705
Aquila Coal Pty Ltd v Bowen Central Coal Pty Ltd [2013] QSC 82
Archer Capital 4A and Sage Group plc (No 2) [2013] FCA 1098; [2013] 306 ALR 384
Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607; 13 ALD 195
Attorney-General’s Department and Another v Cockcroft [1986] FCA 35; (1986) 10 FCR 180; 64 ALR 97; 12 ALD 468
Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; 69 ALR 31; 61 ALJR 92
Australian Hospital Care (Pindara) Pty Ltd v Duggan [1999] VSC 131
Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651
AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651 at
AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52; 49 ALR 385; 83 ATC 4606; 14 ATR 713
Barton v The Commonwealth (1974) 131 CLR 477
Bradford and Australian Federal Police [2016] AATA 775
Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542
Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88; (2008) 246 ALR 137
Central Intelligence Agency v Sims 471 US 159 (1985)
Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25; 43 ALR 587
Commissioner of the Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501; 141 ALR 545; 71 ALJR 327; 35 ATR 130
Commission of Taxation v Donoghue [2015] FCAFC 183
Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247; (2005) 225 ALR 266; 2005 ATC 4903; 60 ATR 466
Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39; 32 ALR 485
Commonwealth v Vance [2005] ACTCA 35; (2005) 158 ACTR 47; 224 FLR 243
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434; 74 ALR 428; 7 AAR 187; 13 ALD 254
Criminal Justice Commission v Parliamentary Justice Commissioner [2001] QCA 218; [2002] 2 Qd R 8
Crown Resorts Limited v Zantran Pty Limited [2020] FCAFC 1
Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79
Damjanovic & Sons Pty Ltd v The Commonwealth [1968] HCA 42; (1968) 117 CLR 390
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561; 77 ALJR 40
Duke of Newcastle v Morris (1870) LR 4 HL 661
Director-General, Australian Archives [1988] AATA 110; (1988) 15 ALD 2; 8 AAR 403
Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468
Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63; (1991) 100 FLR 6
Dye v Commonwealth Securities [2010] FCA 950
Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49; 168 ALR 123; 43 ATR 506; (1999) 2000 ATC 4042
Esso Australia Resources Ltd v Sir Daryl Dawson [1999] FCA 363; (1999) 87 FCR 588; 162 ALR 79
Grofam Pty Ltd v ANZ Banking Group [1993] FCA 374; (1993) 43 FCR 408; 116 ALR 535; 26 ATR 174; 93 ATC 4672; 31 ALD 323
Kennedy v Wallace (2004) 142 FCR 185
Harrison v Melhem [2008) NSWCA 67; 72 NSWLR 380; 26 ACLC 484
Hartogen Energy (in liq) v Australian Gas Light Co [1992] FCA 322; (1992) 36 FCR 557; 109 ALR 177
Hillpalm Pty Ltd v Heaven’s Dear Pty Ltd [2002] NSWCA 301; (2002) 55 NSWLR 446
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609
Lennon v Gibson & Howes Ltd (1919) 26 CLR 285
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1; 168 ALR 86; 74 ALJR 378
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70;
220 ALR 587; 41 AAR 23; 88 ALD 12; 80 ALJR 1549; 63 ATR 409
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 43 AAR 151; 91 ALD 516; 63 ATR 409
Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414; 56 ALR 193
National Archives of Australia v Fernandes [2014] FCAFC 158
Nine Films and Television Pty Ltd v Ninox Television Ltd [2005] FCA 356; (2005) 65 IPR 442
Ogden Industries Pty Ltd v Lucas [1970] AC 113; [1969] 1 All ER 121
Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275; 249 ALR 1; 82 ALJR 1288
O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210; 89 ALR 71; 64 ALJR 87
Plaintiff B60 of 2012 v Minister for Foreign Affairs and Trade [2013] FCA 1303; (2013) 219 FCR 109; 306 ALR 478
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490
R v Burgess; Ex parte Henry (1936) 55 CLR 608
R v Joyce [2002] NTSC 70; (2002) 173 FLR
R v Lodhi [2006] NSWSC 596; (1999) 199 FLR 270
R v Smith ex parte Cooper (1992) 1 Qd R 423
Re Chemical Trustee Limited and Commission of Taxation an Anor [2013] AATA 623
Re Ewer and Australian Archives (1995) 38 ALD 789
Re Fernandes and National Archives of Australia [2014] AATA 180
Re Farrell and Secretary, Department of Immigration and Border Protection [2017] AATA 409
Re Hocking and Department of Defence [1987] AATA 602
Re Maher and Attorney-General’s Department (1985) 7 ALD 731
Re Millis and Australian Archives (1997) 47 ALD 427
Re Nitas and Minister for Immigration and Multicultural Affairs [2001] AATA 392
Re Petroulias and Commissioner of Taxation [2006] AATA 333; (2006) 62 ATR 1175
Re Philip Morris Pty Ltd and Prime Minister [2011] AATA 556; (2011) 122 ALD 619
Re Prinn and Department of Defence [2016] AATA 445
Re Slater and Cox, Director-General of Australian Archives [1988] AATA 110; (1988) 15 ALD 20; 8 AAR 403
Re Staats and National Archives of Australia [2010] AATA 531
Re Throssel and Australian Archives (1986) 10 ALD 403 at 406; Re Slater and Cox,
Re Staats and National Archives of Australia [2010] AATA 531
Rich v Harrington [2007] FCA 1987; (2007) 245 ALR 106
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50; (1995) 128 ALR 238; 37 ALD 357
Rilstone v BP Australia Pty Ltd [2007] FCA 1557
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 36 FCR 111; 108 ALR 163
Sankey v Whitlam (1978) 142 CLR 1 at 43-44
Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15; 214 ALR 696; 84 ALD 412
Seven Network Ltd v News Ltd [2005] FCA 1551; (2005) 225 ALR 672
Seven Network Ltd v News Ltd [2005] FCA 142
Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 2) [2007] FCA 1445
Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347
Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54; 71 ALR 673; 61 ALJR 350
Xenophon and Secretary, Department of Defence [2019] AATA 3667
Zarro v Australian Securities Commission [1992] FCA 233; (1992) 36 FCR 40
Secondary materials
Explanatory Memorandum to the Freedom of Information Amendment Act 1991
Geneva Convention; Article 1
Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd
Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press
Statutory Interpretation in Australia; DC Pearce, 9th edition, Butterworths, Australia, 2019
Statement of the Government’s response to the recommendations made by both Committees to the Archives Bill 1978 incorporated in Hansard on 11 September 1980: Hansard: The Senate, 11 September 1980
United Nations Convention on the Law of the Sea; Article 55; Article 76.2; Article 76.3
REASONS FOR DECISION
Deputy President S A Forgie
In 1971 and 1972, the Commonwealth of Australia and the Republic of Indonesia (Indonesia) reached two agreements through which they permanently delimited a large segment of their seabed boundaries to the north of Australia. The 1972 agreement led left a gap for the then Portuguese colony of Timor-Leste. That gap became known as the “Timor Gap”. In 1978, Australia and Indonesia commenced negotiations regarding a permanent maritime boundary in the Timor Gap but agreement could not be reached. In 2013, 2014 and 2016, Ms Kim McGrath made 30 applications to the National Archives of Australia (Archives) under the Archives Act 1983 (Archives Act) for access to records[1] relating to the negotiations between Australia and Indonesia first in 1971 and 1972 and then in 1978 and 1979.
[1] The Archives Act refers to a “record” but defines it in terms that include a “document”. I have used both terms for I am dealing with documents. The evidence was also couched in terms of either or both.
Archives did not make a decision regarding the first 12 of Ms McGrath’s applications within the consideration period prescribed by s 40A of the Archives Act.[2] That meant that, for the purposes of enabling her to make an application to the Tribunal, Archives was deemed to have made a decision refusing to grant access to each record on the ground that the record is an exempt record.[3] She lodged 12 applications in the Tribunal in respect of each deemed refusal in relation to the applications she had lodged with Archives in 2013. Subsequently, Archives claimed exemptions in respect of the records under s 33 of the Archives Act. Ms McGrath withdrew four of her applications leaving eight relating to her 2013 applications.[4] Ms McGrath lodged a further 17 applications to the Tribunal for review of decisions Archives was deemed to have made in relation to 15 of her applications made in 2014 and two decisions it had made claiming exemptions under s 33. Archives subsequently gave Ms McGrath access in full to the records that were the subject of two of her 2014 applications.[5] Archives claimed exemptions under s 33 in respect of the remaining 15 applications for access leading to 15 applications to the Tribunal. Ms McGrath lodged a further application for access in 2016. Archives refused it claiming exemptions under s 33. That led to her final application to the Tribunal. In all, 24 applications remain in the Tribunal.
[2] Archives Act; s 40(3)
[3] Archives Act; s 40(8)
[4] AAT Nos. 2014/1296 withdrawn 25 June 2014 (Archives Documents A1838 3038/9/1 Part 17); 2014/1328 withdrawn 4 December 2014 (Archive Documents A1838 3038/10/1 Part 57); 2014/1329 withdrawn 4 December 2014 (Archive Documents A1838m 3038/11/64 Part 3) and 2014/1336 withdrawn 4 December 2014 (Archive Documents A1838 1733/3/2 Part 14)
[5] AAT Nos. 2015/5359 (Archives Document A1838 1506/34 Part 1) and 2014/5361 (Archives Document A1209, 970/6400 Part 1)
The Director-General has claimed that the material, to which he has refused Ms McGrath access under the Archives Act, is exempt by reason of one or more of the following exemptions:
(1)section 33(1)(a): its disclosure could be reasonably expected to cause damage to the security, defence or international relations of the Commonwealth;
(2)section 33(1)(d): its disclosure could constitute a breach of confidence; and/or
(3)section 33(2): it would be privileged from production in legal proceedings on the grounds of legal professional privilege and disclosure of the record would be contrary to the public interest.
In addition, the Director-General has submitted that a transcript of oral evidence given in‑camera before the Parliamentary Joint Committee on Foreign Affairs and Defence, Sub‑Committee on Territorial Boundaries (Joint Committee) on 12 and 19 September 1979 is subject to the Parliamentary Privileges Act 1987 (PP Act) and cannot be disclosed under s 31 of the Archives Act.[6]
[6] Application No. 2014/1335 relating to the review of documents numbered A1838 1733/3/2 Part 12; Folios 49‑65, 77-83, 274-291 and 294-313.
My reasons for making the following decisions are contained in these open reasons as well as in closed reasons, to which access is restricted to Archives, their legal representatives and to members and staff of the Tribunal. The closed reasons set out my consideration of the applicability of the exemptions to each of the documents for which they have been claimed. I have decided that:
(1)the transcript of the oral evidence given before the Joint Committee on 12 and 19 September 1979 is subject to the PP Act and cannot be disclosed in response to a request under the Archives Act regardless of whether it comes within the terms of an exemption in that legislation or not.
(a)As an alternative, Archives claimed that the transcript is exempt under:
(i)s 33(1)(a) on the basis that its disclosure under the Archives Act could reasonably be expected to cause damage to the security or international relations of the Commonwealth; and
(ii)under s 33(1)(d) on the basis that its disclosure would constitute a breach of confidence;
but, as I have not seen the transcripts, I am unable to decide whether I would be satisfied that they would be exempt under either provision.
(2)that the records identified as A1838 1733/3/2 Part 6; Folios: 183-210, or parts of them, are not exempt from access under s 33(2) of the Archives Act on the basis that they are subject to legal professional privilege.
(a)They are, however, exempt under s 33(1)(a) as are the other records, or parts of them, for which exemption has been claimed under that provision.
(3)In the case of each record, which is an exempt record by reason of part of the information or material that it contains, I am satisfied that:
(a)it is reasonably practicable to make arrangements for access to be given to a part of, or a copy of part of, that record without disclosing the information or material by reason of which it is an exempt record; and
(b)that access be given to Ms McGrath to a copy of the records made in accordance with those arrangements.
BACKGROUND
The background to Ms McGrath’s applications for access to records lies in the negotiations between Australia and Indonesia relating to the maritime boundaries of each in relation to the seabed that later became of concern to Timor-Leste when it separated from Indonesia. Those negotiations led to various treaties that I have referred to below. Following the establishment of Timor-Leste as a sovereign state separate from Indonesia, further negotiations took place between it and Australia regarding similar issues. The most recent, the Maritime Boundaries Treaty, was signed on 6 March 2018 in New York making clear where the boundaries lie between the two countries. Australia ratified that treaty on 30 August 2019.
In the course of the discussions between them, Archives granted access to various records to Ms McGrath. The table at Attachment C sets out the records, or parts of records, that remain in issue.
Summary of Bilateral Treaties between Australia and Indonesia in the 20th Century
The findings that I have made are based on the evidence of Dr Greg French, whose experience I have set out at [46]-[54] below. Dr French was not involved in the negotiation of either treaty but I accept that he has read about them extensively and has lectured on them. He has reviewed the records kept by DFAT relating to the negotiations. The negotiations led to the following agreements and treaties:
(1)18 May 1971:
Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries (1971 Agreement).
(2)9 October 1972:
Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas (1972 Agreement).
(a)This agreement was supplementary to the 1971 Agreement.
(3)December 1989:
Australia-Indonesia Timor Gap Treaty signed in December 1989 (1989 Treaty).
(a)In 1978, Australia and Indonesia commenced negotiations on a permanent maritime boundary in the Timor Gap but did not reach agreement. Instead, they agreed on a provisional arrangement.
(b)This arrangement came to an end when Timor-Leste gained independence from Indonesia in 2002 and became the Democratic Republic of Timor-Leste.
(4)14 March 1997:
Treaty between the Government of Australia and the Government of the Republic of Indonesia establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries (Perth Treaty).
(a)Delimited Australia and Indonesia’s outstanding maritime boundaries not previously delimited by the 1971 and 1972 Agreements i.e. all of the Exclusive Economic Zone (EEZ) and the seabed west of the 1972 seabed boundary.
(b)The Perth Treaty has not yet come into force.
Summary of Bilateral Treaties between Australia and Timor-Leste in the 21st Century
The findings I have made in this section are drawn from the evidence of Mr Justin Whyatt. He is the Assistant Secretary of the Transnational and Sea Law Branch in the Legal Division of DFAT. When Timor-Leste gained independence, it and Australia did not establish permanent maritime boundaries. Instead, they entered three bilateral treaties establishing provisional maritime arrangements for the Timor Sea. They were:
(1)2002:
Timor Sea Treaty between the Government of East Timor and the Government of Australia (TST)
The TST established the Joint Petroleum Development Area (JPDA). Under it, Australia and Timor-Leste were to control jointly the exploration and exploitation of oil and gas resources in the JDPA.
The title to any petroleum produced was to be shared between them with 90% attributable to Timor-Leste and 10% to Australia.
(2)2003:
Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste relating to the Unitisation of the Sunrise Troubadour Fields (IUA)
The IUA created the governance framework for the Greater Sunrise fields, which are partly in the JPDA and partly in an area of exclusive Australian jurisdiction.
The IUA apportions the Greater Sunrise fields between Australia (79.9%) and the JPDA (20.1%).
The title to any petroleum produced was to be shared between them with 90% attributable to Timor-Leste and 10% to Australia as set out in the TST.
(3)2006:
Treaty between the Government of Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea (CMATS Treaty)
The CMATS Treaty changed the revenue arrangement in the IUA by providing for an equal sharing of upstream revenue between Australia and Timor-Leste from the Greater Sunrise fields.
The CMATS Treaty placed a moratorium on maritime boundary claims for its duration.
It extended the duration of the TST to the same duration of the CMATS Treaty i.e. from 30 years to 50 years but either party was permitted to terminate it at an earlier time if certain circumstances prevailed. Among those circumstances was there being no approval for a development plan for the Greater Sunrise fields within six years s of the CMAT Treaty’s entry into force i.e. by 23 February 2013.
Timor-Leste terminated the CMATS Treaty on 10 April 2017.[7]
[7] See [13] below
On 23 April 2013, Timor-Leste initiated arbitration against Australia under the TST regarding the validity of the CMATS Treaty and the duration of the TST (arbitration case). It followed this a few months later with an action it instituted in the International Court of Justice (ICJ) for the return of materials removed by the Australian Security and Intelligence Organisation (ASIO) from the offices of Timor-Leste’s legal representative on 3 December 2013 (ICJ case). In September 2014, both the arbitration case and the ICJ case were suspended for consultations aimed at settling Australia’s and Timor-Leste’s differences. The consultations were not successful. On 11 June 2015, Australia returned the materials taken by ASIO. That led to Timor-Leste’s discontinuing its ICJ case on 11 June 2015.
On 24 September 2015, Timor-Leste instituted a further arbitration disputing Australia’s exclusive jurisdiction over the pipeline from the Bayu-Undan gas field to Darwin.
Timor-Leste then initiated, on 11 April 2016, compulsory conciliation under the United Nations Convention on the Law of the Sea (UNCLOS) intending to conclude an agreement on permanent maritime boundaries with Australia. Australia challenged the competence of the Conciliation Commission to proceed with the conciliation when the CMATS Treaty had placed a moratorium on maritime boundary claims for its duration. The Conciliation Commission decided on 26 September 2016 that the moratorium did not preclude boundary negotiations. Therefore, it was competent to proceed with the conciliation.
The conciliation proceeded with both parties participating fully in the process. As part of the facilitation of the process, Timor-Leste agreed to give Australia written notification of its intention to terminate the CMATS Treaty and to negotiate permanent maritime boundaries with Australia. On 10 January 2017, Timor-Leste delivered notice of its intention to do so. That meant that, on 10 April 2017, the CMATS Treaty ceased to be in force. As a further step in facilitating the process, Timor-Leste withdrew the two arbitrations that it had initiated against Australia. Both parties and the Conciliation Commission advised that was the case in a statement issued on 24 January 2017.
Negotiations between the two countries continued throughout 2017 with five meetings held between January and December 2017. At the August/September 2017 meeting, Australia and Timor-Leste reached a comprehensive package of agreements that included a maritime boundary and also addressed the legal status and development of the Greater Sunrise gas field. In October 2017, they reached agreement on the text of a treaty delimiting the maritime boundary and addressing the legal status of the Greater Sunrise gas field. Further meetings with Conciliation Commission were planned and held to address the development of the Greater Sunrise gas field.
Further meetings with the Conciliation Commission were scheduled for early 2018 and agreement was reached in March with Australia and Timor-Leste signing the Treaty Between Australia and the Democratic Republic of Timor-Leste Establishing Their Maritime Boundaries in the Timor Sea on 6 March 2018 (Maritime Boundaries Treaty).
LEGISLATIVE FRAMEWORK
Archives Act: Commonwealth records available for public access
A. Regulating dealings with Commonwealth records
Making the Commonwealth’s archival resources publicly available is one of the objects of the Archives Act.[8] Division 2 of Part V is concerned with regulating dealings with Commonwealth records. The expression “Commonwealth record” is defined in s 3(1) of the Archives Act to mean:
“(a) a record that is the property of the Commonwealth or of a Commonwealth institution; or
(b)a record that is deemed to be a Commonwealth record by virtue of a regulation under subsection (6) or by virtue of section 22;
but does not include a record that is exempt material.”
[8] Archives Act; s 2A(a)(ii)
A “Commonwealth institution” is defined in s 3(1) and includes, among others, the Senate, the House of Representatives and a Department.[9] A “Department” means a Department of the Australian Public Service that corresponds to a Department of State of the Commonwealth[10] or a Parliamentary Department.[11] A “Parliamentary Department” means a Department of the Parliament established under the Parliamentary Service Act 1999 (PSA).
[9] Paragraphs (c), (d) and (e) of the definition of “Commonwealth institution”
[10] In summary, s 63 of the Constitution of the Commonwealth provides that the Governor-General may appoint Ministers to administer the Departments of State he or she may establish. Traditionally the Governor-General exercises that power by making Administrative Arrangements Orders (AAO) from time to time. Each AAO begins with a statement that the matters dealt with by a Department of State include the matters referred to in the Part of the Schedule to the AAO relating to that Department together with matters arising under the legislation administered by a Minister of State administering the Department” AAO; [1]. Section 7 of the Public Service Act defines “Department” to mean “… a Department of State, excluding any part that is of itself an Executive Agency or Statutory Agency.”
[11] Archives Act; s 3(1)
The word “record” is itself defined in s 3(1) to mean:
“… a document, or an object, in any form (including any electronic form) that is, or has been, kept by reason of:
(a) any information or matter that it contains or that can be obtained from it; or
(b) its connection with any event, person, circumstance or thing.
Note:For the definition of document, see section 2B of the Acts Interpretation Act 1901.”[12]
[12] Section 2B of the Acts Interpretation Act 1901 defines a document to mean “… any record of information, and includes: (a) anything on which there is writing; and (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and (c) anything from which sounds, images or wrings can be reproduced with or without the aid of anything else; and (d) a map, plan, drawing or photograph.”
Section 24 regulates the disposal and destruction of Commonwealth records, damaging or altering Commonwealth records or transferring their custody or ownership. Section 26 prohibits additions to, or alteration of, Commonwealth records that have been in existence for more than 15 years. Section 27 provides for the transfer of Commonwealth records in the custody of a Commonwealth institution other than Archives and that has been determined under s 3C to be part of the archival resources of the Commonwealth, to the care of Archives in accordance with arrangements approved by Archives.[13] A Commonwealth record that is part of the archival resources of the Commonwealth must be transferred to Archives as soon as practicable after it ceases to be a current Commonwealth record[14] i.e. after it ceases to be a Commonwealth record that is required to be readily available for the purposes of a Commonwealth institution other than for purposes under the Archives Act.[15]
[13] Archives Act; s 27(1)
[14] Archives Act; s 27(3)
[15] Archives Act; s 3(1)
Subject to Part V, Archives is entitled, for the purposes of the Archives Act, to have full and free access, at all reasonable times, to all Commonwealth records in the custody of a Commonwealth institution.[16]
[16] Archives Act; s 28
With the concurrence of the Director-General, a Commonwealth institution may determine that a Commonwealth record, or each record in a class of Commonwealth records in the possession of the Commonwealth institution or relating to its functions is a record that is not required to be transferred to Archives under s 27 or a record to which Archives is entitled to have access under s 28.[17] Notwithstanding that, the responsible Minister may determine that a Commonwealth record, or each record in a class of Commonwealth records, is a record that is not required to be transferred to the care of Archives under s 27 or a record to which Archives is not entitled to have access under s 28 otherwise than on specified conditions to be observed by Archives.[18]
[17] Archives Act; s 29(1)
[18] Archives Act; s 29(2)
B. Access to Commonwealth records
A person may make an application to Archives for access to a Commonwealth record that is in the open access period, in the care of Archives or in the custody of a Commonwealth institution and is not an exempt record. The application is made under s 40(1) and must comply with its provisions. There is no question that Ms McGrath has made her applications in the appropriate form. Archives has made its decisions on her applications. It has reviewed its decisions under s 42 of the Archives Act and made decisions.
Access to Commonwealth records is the subject of Division 3 of Part V. Subject to the provisions of that Part, s 31 imposes an obligation on Archives to cause certain records to be made available for public access.[19] If the record is in the custody of a Commonwealth institution, the institution must make such arrangements with Archives as will enable Archives to meet its obligation under s 31(1) to cause the record to be made available for public access.[20]
[19] Archives Act; s 31(1)
[20] Archives Act; s 31(1)
The records that Archives is obliged to make available are those that come within the following description. It is:
“… a Commonwealth record that:
(a)is in the open access period;
(b)is in the care of the Archives or in the custody of a Commonwealth institution; and
(c)is not an exempt record.”[21]
[21] Archives Act; s 31(1A)
What is meant by the “open access period” depends on whether the records are a Cabinet notebook or a record containing Census information or any other record. In the case of the first two, the open access periods are determined by ss 22A and 22B respectively.[22] The open access period for other records is determined by s 3(7). If the record came into existence in a year before 1980, the record is in the open access period on and after 1 January in the year that is 31 years after the year in which it was created. A record that came into existence in 1979 was in the open access period on and after 1 January 2010. Specific dates are given for the years following 1980 although the period is calculated on the basis of 20 or 21 years for those records created after 2000. Those records are in the open access period in the year that is 21 years after the creation year.
[22] Archives Act; s 3(1)
A record is in the “care of Archives” if it is in the “custody of Archives” or “the record is in the custody of a person in accordance with arrangements referred to in section 64”.[23] The word “custody” is not defined but its ordinary meanings include that of “protective care”. Arrangements of that sort have been made between Archives and DFAT over the years. The most recent is Records Authority 2016/00094616 dated 2016, which superseded the Records Disposal Authority Job no 2003/00622439 dated 2 December 2002. Both describe records, or classes of records, that might be destroyed in accordance with the requirements set out in the relevant authority. Both describe records to be retained as national archives.
[23] Archives Act; s 3(1)
Section 3(1) also defines the term “exempt material”. “Material” means records and other objects. The term “exempt material” includes, for example, material included in the collection of library material maintained by the National Library and in the historical material in the possession of the National Museum of Australia. There is no exempt material in issue in this case.
What is in issue is whether Ms McGrath has applied for records that are exempt records. Section 33 is concerned with exempt records. Section 33(1) identifies exempt records by reference to the kinds of information or matter they contain. It identifies nine kinds. If a Commonwealth record comes within one of those kinds it is an exempt record. Two of the kinds being those identified in ss 33(1)(a) and (d) are relevant in this case and I set them out below. Section 33(3) also provides that Commonwealth records are exempt records on the basis of the kind of information or matter they contain. That is not relevant in this case. The final exemption is relevant in this case. It is set out in s 33(2) and its parameters are determined by how it would be treated in legal proceedings. I come to that exemption later.
In consultation with the responsible Minister or a person authorised by the responsible Minister, the Director-General must make arrangements for determining the Commonwealth records that are in the open access period and that are to be treated by Archives as being exempt records. The Director-General may also make arrangements determining the extent to which access to those exempt records may be given without disclosing the information or matter by reason of which the records are exempt records.[24] The “responsible Minister” in relation to a Commonwealth record is the Minister to whose ministerial responsibilities the record is most closely related.[25]
[24] Archives Act; s 35(1)
[25] Archives Act; s 3(1)
The Director-General takes the position, and I think correctly, that each of the records in issue in this case is a document and that each document is a “Commonwealth record” as those terms are defined in s 3(1). If a Commonwealth record contains information of the sort described in ss 33(1) or (2), the whole of the record is an exempt record. Archives must have regard to s 38 before it declines to make a Commonwealth record available for public access. It provides:
“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.”
Circumstances arise in which Archives may take the view that, if a Commonwealth record were to include information regarding the existence or non-existence of a record, that Commonwealth record would be an exempt record by virtue of ss 33(1)(a), (b) or (e). If it does so, s 39(1) provides that nothing in the Archives Act is to be taken to require Archives to give that information.[26] It must, however, follow the process set out in s 39(2):
“Where an application to the Archives for access to a record relates to a record that is, or if it existed would be, of a kind referred to in subsection (1), the Archives may give notice in writing to the applicant that the Archives neither confirms nor denies the existence, as a Commonwealth record, of such a record but that, assuming the existence of such a record, it would be an exempt record, and, where such a notice is given:
(a)section 40 applies as if the decision to give such a notice were a decision referred to in that section; and
(b)the decision to give the notice shall, for the purposes of Division 4, be deemed to be a decision of the Archives refusing to grant the applicant access to the record on the ground that the record is an exempt record under paragraph 33(1)(a), (b) or (e), as the case may be.”
[26] Archives Act; s 39(1)
C. Protection against certain actions
Section 57(1) of the Archives Act provides protection to those who are authorised to give access and certain protections to the author of the record or those who supplied it to Archives.
Application for review of Archives’ decision to the Tribunal
A. Making an application to the Tribunal and the limits of its powers on review
Division 4 provides for the review of decisions made by Archives. In summary, s 43 provides that, if a decision has been reconsidered by Archives under s 42, an application may be made to the Tribunal for review of a decision made on reconsideration[27] in respect of a Commonwealth record that is a decision that comes within one or other of six descriptions of decision set out in ss 43(1)(a) to (f). The description relevant in his case is:
“a decision refusing to grant to the applicant access to the record on the ground that the record is an exempt record …”.[28]
[27] For the purposes of Part V of the Archives Act and proceedings in the Tribunal for review of a decision, a decision given by Archives is taken to have been given by the Director-General: Archives Act; s 50
[28] Archives Act; s 43(1)(a)
Generally, when an application for review has been made to the Tribunal, it may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision under review.[29] Those powers may be modified by the enactment providing for applications to be made to the Tribunal.[30] That is what Parliament has done when enacting the Archives Act. Section 44(1) provides:
“Subject to this section, in proceedings under this Division, the Tribunal has, in addition to any other power, the power to review any decision of the Archives upon application for access to a record and to decide any matter in relation to that application that, under this Act, could have been or could be decided by the Archives, and any decision of the Tribunal under this section has the same effect as a decision of the Archives.”
[29] Administrative Appeals Tribunal Act 1975 (AAT Act); s 43(1)
[30] AAT Act; s 25(6)
Parliament has limited the Tribunal’s powers when it is established that a record is an exempt record. Except as provided by s 44(7), the Tribunal does not have power to decide that access is to be granted to a record that is an exempt record. The qualification to that restriction on its power is set out in s 44(7) is:
“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 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.”
The power exercised under s 44(7) can only be exercised after meeting the requirements of s 50A if the record has been claimed to be an exempt record by reason of its containing information or matter of a kind referred to in ss 33(1)(a) or (b).
B.Procedural steps required of Tribunal before it may determine certain records not exempt records
Section 50A of the Archives Act applies in a case, such as this, where a record has been claimed to be an exempt record for the reason that it contains information or matter of a kind referred to in, with one other, s 33(1)(a). In so far as it is relevant in this case, s 50A(2) provides:
“Before 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:
(a)The damage that could reasonably be expected to be caused to the security, defence or international relations of the Commonwealth if the record were made available for public access; …
(b) …”
If the Tribunal is considering whether, under s 38, it is reasonably practicable to make arrangements for part of, or a copy of part of, a record to which access could be given without disclosing information or matter by reason of which the record is an exempt record, it must follow the procedure set out in s 50A(3). That procedure requires the Tribunal in the context of this case to:
“… request the Inspector-General to appear personally and give evidence on:
(a)whether making that part, or copy of that part, of the record available for public access could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth; …
(b)…”
Unless the Inspector-General is of the opinion that he or she is not appropriately qualified to give evidence on the matters in relation to which he or she has been requested to give evidence, he or she must comply with the request.[31] Before hearing the evidence of the Inspector-General of Intelligence and Security (Inspector-General), the Tribunal must hear any evidence to be given or submissions to be made by or on behalf of the Archives or the Commonwealth institution of which the record is property.[32]
[31] Archives Act; s 50A(5)
[32] Archives Act; s 50A(4)
C. Onus of proof
In proceedings in the Tribunal, Archives has the onus of establishing that a decision it has given was justified or that the Tribunal should give a decision adverse to the applicant.[33] Under s 35(1) of the Archives Act, the Director-General must make arrangements for determining the Commonwealth records in the open access period that are to be treated by it as exempt records. The Tribunal is not restricted by any determination the Director-General might make under s 35.[34]
[33] Archives Act; s 51(a)
[34] Archives Act; s 51(b)
D. Certificate of the Attorney-General
On 19 April 2018, the then Acting Attorney-General issued a certificate under s 36 of the AAT Act that:
“… disclosure of:
1.the matters contained in the confidential affidavit affirmed by Dr Greg French, Australian Ambassador to Italy, together with a schedule categorising into subject matter the documents over which exemptions are claimed by the respondent
2.the documents contained in the confidential affidavit affirmed by Justin Whyatt, Assistant Secretary, Sanctions, Treaties and Transnational Crime Legal Branch, Legal Division of the Department of Foreign Affairs and Trade
3.the matters contained in the confidential affidavit affirmed by Michelle Chan, Acting Deputy Director-General of the Office of National Assessments, on 20 March 2018
4.the matters contained in the confidential affidavit described in the schedule of this certificate, together with the schedule itself
5.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 thereof
would be contrary to the public interest because the disclosure would prejudice the security, defence or international relations of Australia.”
The certificate does not excuse those named or described in it from giving evidence to the Tribunal. What it does is place an obligation on the Tribunal. It is an obligation that:
“… 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.”[35]
[35] AAT Act; s 36(2)
The qualification referred to in s 36(3) does not arise here because it only arises if the certificate does not specify a reason referred to in ss 36(1)(a) or (b). In this case, the reason specified is referred to in s 36(1)(a) i.e. “… disclosure of the information … [described in the certificate] would be contrary to the public interest: (a) by reason that it would prejudice the security, defence or international relations of Australia.” Therefore, the Tribunal does not have any discretion under s 36(3) to decide whether the information described in the certificate should be disclosed to Ms McGrath either by making it available to her or permitting her to inspect a the part of a document containing it. The qualification in s 46 relates to disclosure to the Federal Court or Federal Circuit Court should an appeal be lodged against a decision of the Tribunal in a matter.
THE WITNESSES
Ms Chan
At the time of the hearing, Ms Michelle Chan was Acting Deputy-Director General of the Office of National Assessments (ONA), which was then in the process of becoming the Office of National Intelligence (ONI). She is part of the executive team setting strategic direction for the ONA, identifying assessment priorities and monitoring the implementation of corporate policy and relations with other organisations. In addition to the oversight of foreign intelligence coordination and corporate functions in the ONA, Ms Chan has been responsible for the identification of topics that will be the subject of assessments by the ONA, the judgments reached in those assessments and for making decisions about the advice offered to the Prime Minister in those assessments. Her particular responsibilities include assessments that cover countries in the Pacific and North Asia, as well as the strategic analysis of power relations between the states, military-political affairs and the implications of science and technology.
Ms Chan’s previous experience in the Australian Public Service commenced in 1993 and she has held various positions including Assistant Secretary in DFAT covering Indonesia, Timor-Leste and ASEAN issues in 2006 and 2007. She was the Australian Ambassador to Myanmar from 2008 to 2011 and has also served in Australian embassies in Phnom Penh (1996-1998), Hanoi (1998) and Jakarta (2002-2005 and 2013-2014). She holds a BA (Juris) and LLB from the University of Adelaide and an MA and LLM (International Law) from the Australian National University.
Dr French
Dr French was called to give evidence on behalf of Archives. I will set out his qualifications and experience as he presented them in his Affidavit affirmed on 13 February 2018:
“1. Since May 2016, I have been Australia’s Ambassador to Italy.
2.From 2009 until immediately before my appointment as Ambassador to Italy, I was the Legal Adviser (International) and Head of the Department of Foreign Affairs and Trade (DFAT) International Law Branch. In that role, I had responsibility for the International Law and Sea Law, Environment Law and Antarctic sections. A constant focus in this role was the protection and advancement of Australia’s interests, including its security interests. This included: delimitation of, and control over, our maritime boundaries; negotiation of various treaties; advancing our strategic interests in Antarctica; and advising our military on many issues including navigation rights, the use of force and self-defence.
3.I hold a Bachelor of Arts and a Bachelor of Laws Degree from Macquarie University and a Master of Laws and doctorate (magna cum laude) in international law from the Westfälische Wilhelms-Universität Münster, Germany. I have published widely on the international law of the sea, including a book entitled ‘Der Tiefseebergbau – eine interdisziplinäre Untersuchung der völkerrechtlichen Problematik’ (Deep seabed mining – an interdisciplinary analysis of the international legal issues), a 125 page chapter entitled ‘The Law of the Sea’ in Australian International Law, Sydney, 1995, and numerous academic articles.
4.I have led Australian delegations to several international legal meetings including negotiations on the United States to several international legal meetings including negotiations on the United Nations Convention on the Law of the Sea (UNCLOS) and marine biodiversity beyond national jurisdiction. I chaired a United Nations Commission on seabed mining and was rapporteur for the negotiation of the 1994 Implementing Agreement to UNCLOS. I led the Australian delegation that negotiated the Australia-New Zealand maritime boundary agreement (1999-2004).
5.I have considerable experience in issues between Australia and Timor-Leste in relation to the Timor Sea and maritime boundaries. From 2000 to 2001
I was actively involved in the negotiations for the Timor Sea arrangement between Australia and the United Nations Transnational Administration in East Timor (which acted on behalf of Timor-Leste prior to its independence in 2002), which became the Timor Sea Treaty between Australia and Timor‑Leste upon Timor-Leste’s independence. I was also actively involved in the negotiations for the 2003 International Unitisation Agreement between Australia and Timor-Leste (2002-2003).”[36]
[36] Exhibit 4
In cross-examination, Dr French added that his doctorate was in Public International Law, specialising in International Law of Sea, particularly with respect to non-living marine resources of the international seabed area within and beyond national jurisdiction. His thesis dealt with many of the specificities of maritime jurisdiction. After completing his doctorate, Dr French joined the Law of the Sea Section of DFAT in 1990. While in that section, he was involved in the multilateral negotiation of what became amendments to UNCLOS relating to non-living marine resources of the international seabed. His work required him to work with the definitions of the boundary areas under national jurisdiction i.e. the continental shelf and the international seabed area beyond national jurisdiction. Those negotiations extended from 1990 until 1994.
In addition, Dr French was also chair of one of the special commissions of the United Nations Preparatory Commission for the Law of the Sea Convention from 1991 until 1995. One of his co-chairs was Dr Haseem Jalal, who represented Indonesia. Dr Jalal had also been a negotiator in the negotiations that took place between Australia and Indonesia in 1971 and 1972. At the time that he was co-chair with Dr French, Dr Jalal was also chair of another commission of the United Nations Preparatory Commission for the Law of the Sea Convention. Together with another two chairs, Dr French and Dr Jalal were, in effect, the board of the United Nations Preparatory Commission for the Law of the Sea Convention. At the same time each of them was the representative for his country in the other’s commission. In Dr French’s opinion, Dr Jalal remains a highly respected personage with respect to the International Law of the Sea.
After being posted to Germany for several years, Dr French returned to the central office of DFAT in 1999. He worked again in DFAT’s International Legal area and focused particularly on the law of the sea. Immediately, Dr French began to work on the transition from the Timor Gap Treaty to the Timor Sea Arrangement, or TST, between the United Nations Transnational Authority in East Timor and the Australian Government during the period of separation of Timor-Leste from Indonesia. The transition required arrangements to be made to enable the terms of the Timor Gap Treaty to continue before negotiations for the TST commenced. Dr French was not a member of the negotiating team for the TST and was not involved in the negotiations directly. At the same time, Dr French said that he was in the relevant area at the time and was aware of, and involved in the terms of the discussions on what was to become the TST. From 2001 onwards, those who were responsible for the negotiations reported to him.
In approximately 2002 or 2003, Dr French was a member of the delegation negotiating the International Utilisation Agreement between Australia and Timor-Leste. The purpose of that agreement would be to work out the practical arrangements for sharing resources of the Greater Sunrise unitised area which, at the time, lay approximately 80% within the Australian continental shelf and so 80% within its jurisdiction. Approximately 20% lay within the joint petroleum development area under the TST.
Between 1999 or 2000 and 2004, Dr French was the leader of the Australian delegation negotiating the Australia/New Zealand maritime boundary. Being head of a delegation in those circumstances required him to manage the negotiating scene from a range of government departments, elaborating and implementing a strategy and ensuring that the delegation had all relevant materials, advice, assessments, both legal and technical, with respect to the relevant boundary areas.
Between 2004 and 2008, Dr French was stationed in Colombo. On his return, he became the special representative for international environmental issues in DFAT. He was engaged in negotiations on various environmental agreements as well as leading the delegation relating to the Bio-Safety Protocol under the Convention on Biological Diversity. In carrying out those duties, Dr French was involved in multilateral negotiations with Indonesia, Timor‑Leste, Papua New Guinea, Vanuatu, Solomon Islands, France and New Zealand. Environmental issues and maritime boundaries overlap significantly. There is, for example, a significant overlap between issues relating to maritime jurisdiction under UNCLOS and the regulation of genetic and living marine resources under the Convention on Biological Diversity. There was also a professional overlap for him, Dr French said, because he was head of delegation for the negotiation of an implementing agreement under the UNCLOS relating to the conservation and sustainable use of marine living resources beyond national jurisdiction. That requires, he said, an understanding of the spatial framework within which international law determines the jurisdiction of coastal states vis-à-vis the international areas beyond national jurisdiction.
Between 2009 and 2016 when he was head of DFAT’s International Legal Branch, Dr French was head of delegation for a number of delegations including those involved in the negotiation of the Arms Trade Treaty and the International Criminal Court.
Dr French said that he was head of delegation in relation to the International Court of Justice and to the arbitral tribunal held under the auspices of the Permanent Court of Arbitration relating to Timor-Leste. He did not have any direct role in any of the negotiations leading to the making of the Maritime Boundaries Treaty in 2018. He was involved in supervising colleagues who were involved in matters preliminary to the negotiations, but he was not involved in supervising those who were directly involved. The reason for his not doing so was that he had left the relevant position in 2016.
Mr Whyatt
Mr Whyatt holds a Bachelor of Arts and Bachelor of Laws (Hons) from the University of Queensland. He has been employed by DFAT since 2000 in various roles including Counsellor (Political) Washington DC, Director, Middle East Section; Executive Officer International Law and Transnational Crime Section and Third Secretary and Austrade Country Manager in Phnom Penh, Cambodia. He has also held positions in the Sanctions, Treaties and Transnational Crime Branch, which is now called the Transnational and Sea Law Branch, in DFAT. Since July 2017, he has been the Assistant Secretary of that Branch. His predecessors in the position were Ms Sarah De Zoeten, Mr Michael Bliss and Dr French.
His previous position was that of Director of the Sea Law, Environment Law and Antarctic Section. In that role, he oversaw negotiations and legal issues related to the law of the sea, freedom of navigation, maritime boundaries, fisheries, international environmental law and Antarctic law and policy. From May 2017, he served as the Head of the Timor Sea Taskforce responsible for DFAT’s participation in the conciliation initiated by the Government of Timor-Leste under the UNCLOS. He has continued to be involved in the conciliation.
OFFICE OF NATIONAL ASSESSMENTS
On the basis of the evidence of Ms Michelle Chan, I find that the Office of National Assessments (ONA) has since become the Office of National Intelligence (ONI). The ONA remains relevant. It was a statutory body established by the Office of National Assessments Act 1977 (ONA Act) and is directly accountable to the Prime Minister. Under s 5 of the ONA Act, the ONA was given responsibility for what might be broadly described as assembling, correlating, evaluating and reporting on information relating to international matters that are of political, strategic or economic significance to Australia as well as responsibility for coordination and evaluation functions. ONA must prepare reports in relation to those matters that are of current significance and, as circumstances require, those that are of national importance. It must ensure that international developments of major importance to Australia are assessed on a continuing basis. Reports are provided to the Prime Minister, members of the National Security of Cabinet, other Ministers as appropriate, senior Government officials and other appropriate persons.
ONA’s coordination functions are concerned with foreign intelligence activities engaged in by Australia and include those that relate to Australia’s foreign intelligence priorities. That coordination included making recommendations on the appropriateness of resourcing of the intelligence agencies to undertake their missions, coordinating the focus of the intelligence community in line with Government priorities and evaluating the performance of intelligence agencies against those protection priorities. Coordination also extended to policy in relation to foreign intelligence, providing long term and cross-agency planning and liaison with international partners to develop relationships with counterparts in other countries.
Ms Chan elaborated on the basis on which ONA made its assessments:
“… ONA assesses and analyses international political, strategic and economic developments for the Prime Minister and senior ministers in the National Security Committee of Cabinet. ONA bases its assessments on information available to the Australian Government from all sources, both classified and unclassified. ONA also consults broadly within government and with experts in other sectors. Information used to form judgements in ONA assessments includes open source reporting, diplomatic reporting, intelligence obtained by covert means and the assessments formed by other agencies.
Liaison with international parties is an important source of information for ONA. ONA has responsibility to coordinate, manage and maintain these international relationships on behalf of all agencies within the Australian Intelligence Community, to foster a shared understanding of the world and to facilitate and enhance the flow of information to ONA so that sound judgements can be made. The continued flow of information from international partners depends on an understanding of confidentiality in relation to all aspects of the relationship.”[37]
[37] Exhibit 2 at [7]-[8]
RELEVANCE OF PARLIAMENTARY PRIVILEGE: transcript of oral evidence given before Joint Committee
On 23 April 2018, a certificate was issued under s 17 of the PP Act in relation to transcripts of oral evidence given in-camera before the Parliamentary Joint Committee on Foreign Affairs and Defence, Sub-Committee on Territorial Boundaries (Timor Boundary) on 12 and 19 September 1979 (Joint Committee). These are Folios 49-65, 77-83, 274-291 and 294‑313 of A1838 1733/3/2 Part 12.[38] The certificated stated:
“We, David Elder, Clerk of the House of Representatives on behalf of the Speaker of the House of Representatives and Richard Pye, Clerk of the Senate on behalf of the President of the Senate certify, in accordance with sub-sections 17(c) and (d) of the Parliamentary Privileges Act 1987, that:
·Oral evidence was given in-camera to the Parliamentary Joint Committee on Foreign Affairs and Defence, Sub-Committee on Territorial Boundaries (Timor Boundary) in Canberra on Wednesday 12 September 1979 and the transcript of the evidence has not been published or authorised by a House or a committee; and
·Oral evidence was given in-camera to the Parliamentary Joint Committee on Foreign Affairs and Defence, Sub-Committee on Territorial Boundaries (Timor Boundary) in Canberra on Wednesday 19 September 1979 and the transcript of the evidence has not been published or authorised by a House or a committee.”
[38] Tribunal No. 2014/1335
Under ss 17(c) and (d) of the PP Act, the effect of the certificate is that it is evidence of two matters: that oral evidence was taken as stated in the certificate and that the transcript of it has not been published nor authorised to be published. This brings the evidence within the terms of s 13(1)(b) of the PP Act when it provides:
“A person shall not, without the authority of a House or a committee, publish or disclose:
(a) …
(b)any oral evidence taken by a House or a committee in camera, or a report of any such oral evidence;
unless a House or a committee has published, or authorised the publication of, that document or that oral evidence.”
A penalty of six months’ imprisonment or 50 penalty units is imposed in the case of a natural person or 250 penalty units in the case of a corporation.
The submissions
On behalf of Archives, Ms Stern submitted that s 13 of the PP Act is clear in its terms and absolute in precluding the disclosure of the transcripts. The terms of the access obligation in s 31 and the Archives Act generally contain no express abrogation of parliamentary privilege. While s 57 of the Archives Act provides protection against certain civil and criminal actions when access is given to a record as a record as a record required by Part V to be made available for public access, it does not abrogate the prohibition in s 13 of the PPA. Ms Stern relied on the following cases: Duke of Newcastle v Morris[39] (Duke of Newcastle), Criminal Justice Commission v Parliamentary Justice Commissioner[40] (CJC v PJC), Aboriginal Legal Service of Western Australia (Inc) v State of Western Australia[41] (ALWSA), R v Smith ex parte Cooper[42] (Cooper) and Baker v Campbell.[43]
[39] (1870) LR 4 HL 661; Lord Hatherley, Lord Chancellor, Lord Westbury and Lord Colonsay
[40] [2001] QCA 218; [2002] 2 Qd R 8; McPherson and Williams JJA and Chesterman J
[41] (1993) 9 WAR 297 at 304
[42] (1992) 1 Qd R 423 at 430 per
[43] [1983] HCA 39; (1983) 153 CLR 52; 49 ALR 385; 83 ATC 4,606; 14 ATR 713; Murphy, Wilson, Deane and Dawson JJ; Gibbs CJ, Mason and Brennan JJ dissenting
Ms Stern also noted that the document in question is a document in the possession of the Department of Foreign Affairs and Trade (DFAT) and not of Archives. That means that regulations made under s 20 of the Archives Act in relation to records in the possession of the Houses of Parliament or of a Parliamentary Department do not apply. Section 31(3) of the Archives Act provides that, subject to any regulations made under s 20, the obligations imposed by s 31(2) to make arrangements with Archives to enable it to meet its obligations under s 31(1) in relation to the record do not apply. That took the transcript outside the scope of s 31(2) of the Archives Act and so outside the scope of the transcript’s being in the open access period to be publicly available.
On behalf of Ms McGrath, Dr McBeth said that parliamentary privilege does not apply to the documents in the possession of DFAT rather than in the possession of a Parliamentary body. The regime provided for under the Archives Act as modified by the Archives (Records of the Parliament) Regulations 1995 does not apply to a document that is not in the possession of a Parliamentary body. Parliament clearly intended to implement a scheme to protect interests that were, at common law, protected by parliamentary privilege. That included the protection of in camera evidence to parliamentary committees. The regime that has been provided clearly shows that parliamentary privilege was not intended to apply to records that were old enough to be in the open access period under the Archives Act. Even if the regime that has been provided under these regulations does not apply, the reference in s 33(2) to legal professional privilege makes clear that parliamentary privilege was not intended to operate as a further exemption. Had Parliament intended that to be so, it would have provided that a record is an exempt record just as it did in s 33(2) in relation to legal professional privilege.
Consideration
I have decided that disclosure of the transcript would be in breach of parliamentary privilege. My conclusion is based on the fact that the transcript, which was not included in the DFAT files held in Archives, came into DFAT’s possession. It was not a record in the possession of the Senate, House of Representatives or a Parliamentary record that was transferred into the custody of Archives in accordance with the Archives (Records of the Parliament) Regulations 1995 made under s 20 of the Archives Act and in the open access period. Where a record is transferred into the custody of Archives under those regulations, I have concluded that parliamentary privilege no longer applies to them and access to them is determined in accordance with the Archives Act. The copy of the transcript in DFAT’s file, however, is not a Parliamentary record that comes within the scope of those regulations. For the reasons I give below, it remains subject to parliamentary privilege.
A. General principles relating to parliamentary privilege
The general principle is that to which Dawson J referred in Baker v Campbell:
“ In the interpretation of statutes there is a presumption that there is no intention to interfere with basic common law doctrines unless the words of the statute expressly or necessarily required that result. …”[44]
[44] [1983] HCA 39; (1983) 153 CLR 52; 49 ALR 385; 83 ATC 4,606; 14 ATR 713 at 123; 439; 761
Parliamentary privilege has its roots in those common law doctrines. As was explained by Gleeson CJ in Hearne v Street:[45]
“ The privileges of Parliament, including of a State Parliament in the Commonwealth of Australia, do not exist for the benefit of parliamentarians and their staff and officials alone, or even primarily. In this respect they resemble what the common law called ‘legal professional privilege’ and which the Uniform Evidence Acts(Pt 3.10, Div 1) more accurately describe as ‘client legal privilege’. Parliamentary privilegeexists for the benefit of the people who are governed by laws made by the Parliament concerned. Indeed, the privileges of a Parliament are closely inter-connected with the historical privileges of the people. …”[46]
[45] [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609; Gleeson CJ, Kirby, Hayne, Heydon and Crennan JJ
[46] [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609 at 139-140; 619-620
Baker v Campbell was a case concerned with the operation of legal professional privilege but it and parliamentary privilege have much in common. It was concerned with whether documents to which legal professional privilege attached could be seized from a firm of solicitors under a warrant issued under s 10 of the Crimes Act 1914. Section 10 made no mention of privileges such as legal professional privilege and his Honour said:
“… If that privilege has application outside judicial or quasi-judicial proceedings, there can be no real doubt that the general words of s. 10 are not sufficient to curtail the privilege. Of course, if the legislature were to see the need to achieve that result it could do so by express words, but the Court should not assist that result by reading that intention into the general words of the statute. …”[47]
[47] [1983] HCA 39; (1983) 153 CLR 52; 49 ALR 385; 83 ATC 4,606; 14 ATR 713 at 123; 439; 761
One of the authorities, to which Dawson J referred was Duke of Newcastle v Morris. It was concerned with the “privilege of Parliament” that existed at common law. Before the Bankruptcy Act 1861 (UK), traders having privilege of Parliament could not be compelled to become bankrupts.[48] Over time, they began to be subject to an increasing number of the consequences of being a bankrupt. That was achieved through amendments to the bankruptcy legislation. The issue was whether those who were entitled to privilege of Parliament and bankrupt were free from personal arrest. No mention was made in the Bankruptcy Act 1861 to reserve their privilege to them. The Lord Chancellor, Lord Hatherley, said that those having privilege of Parliament were included in the phrase “all debtors” “… but that the privilege is not gone because it is not specially struck at…. [T]hat privilege will not be annihilated because it is not specially dealt with in this Act of Parliament. …”.[49]
[48] (1870) LR 4 HL 661 at 667-668
[49] (1870) LR 4 HL 661 at 671-672
There is no question that the principles relating to parliamentary privilege and referred to by Dawson J are equally applicable to Parliamentary Privilege for s 49 of the Constitution identifies the powers, privileges and immunities in their terms:
“The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of the Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.”
In the United Kingdom, Article 9 of the Bill of Rights 1688 (UK)[50] had stated:
“That the freedom of speech and debates on proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament.”
[50] 1 Will & Mary, sess 2, c 2
The PP Act was enacted to declare the powers, privileges and immunities of each House of the Parliament and of their members and committees.[51] Section 14, for example, confers immunities from arrest and attendance before courts in certain circumstances but not otherwise. I have referred already to s 13 of the PPA, which deals with unauthorised disclosure of evidence taken by a House or a committee in camera or a report of any such oral evidence.
[51] PPA; Long Title
Section 16 is concerned with parliamentary privilege as it applies in court proceedings. It provides that Article 9 of the Bill of Rights continues to apply in relation to the Commonwealth Parliament and, in addition to any other operation, the effect of ss 16(2) to (7). Section 16(3) provides that, in proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament by way of, or for the purpose of:
“(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b)otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c)drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.”
Section 16(1) provides what is meant by “proceedings in Parliament”. Section 16(4) provides:
“A court or tribunal shall not:
(a)require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or
(b)admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence;
unless a House or committee has published, or authorised the publication of, that document or a report of that oral evidence.”
I have referred to ss 13 and 16 in particular because they illustrate that the privilege that has been expressed in legislative terms is concerned about form and not substance. Section 13(1)(b), for example, is focused on the fact that oral evidence has been taken by a House or a committee in camera. It is not concerned with whether the evidence given is of a sensitive or prejudicial nature or is confidential information. The same is true of s 16(4). In so far as s 16(3) is concerned, information about what is said in Parliament may be reported in the media and widely known but may not be received in any court or tribunal for the purposes set out in the provision. In Amann Aviation Pty Ltd v Commonwealth of Australia,[52] for example, the applicant had tendered evidence of a question put and answered in the Senate. It wanted to do that to establish that the Commonwealth had not been entitled to terminate a contract because it had not been ready and willing to perform the work of the contract. Reception of the material would infringe the provisions of s 16(3) of the PPA.
[52] [1988] FCA 24; (1988) 19 FCR 223; 81 ALR 710; Beaumont J
Even though reference is still had to Article 9 of the Bill of Rights, the privileges and immunities of Parliament have been taken from the common law and regulated by the PPA. I am not concerned with Articles 9 and s 16 but with s 13. How does that provision, or the PP Act generally, sit with the Archives Act?
B. Scheme of the Archives Act in relation to Parliamentary records
At Attachment A, I have set out the way in which the regulations made under s 20 of the Archives Act provide for access to documents in the possession of the Senate, House of Representatives or a Parliamentary Department (parliamentary body) and arrangements that have been made for the custody of those records. The particular copy of the transcript in issue in this case is not in the possession of a parliamentary body. It is in the possession of DFAT and I find on the basis of correspondence at A1838 1733/3/2 Part 12; Folios 292 and 293 that the Secretary of the Joint Committee sent proof copies of the transcript to correct inaccuracies and errors in the transcription. Possession is also apparent from Ms McGrath’s Application for Access to Archives. It described the “Agency controlling” as “CA 5987”, which is a descriptor of DFAT used by Archives. Ms McGrath applied for access to:
Item Details
[53] T documents; T9 at 39
Series: A1838
Control Symbol: 1733/3/2 PART 12
Barcode: 1872073
Title: Law of the sea – Delimitation – Australia – Indonesia [Timor]
Access status: CLOSED
Date of decision: 05-Dec-2013[53]
I do not have any evidence regarding whether it is also in the possession of a Parliamentary body. While it is true that s 18 of the Archives Act provides that Divisions 2 (dealings with Commonwealth records) and 3 (access to Commonwealth records) of Part 5 do not apply to records in the possession of Archives, that exclusion is subject to ss 20 and 21. In Attachment A, I set out the regulations that are made under the authority of ss 20 and 21. For reasons that I have set out in that attachment, arrangements made consistently with any regulations made under s 20 of the Archives Act may lead persons’ having access to parliamentary records that are classified as “Class B records”. It is arguable that a copy of the transcript in the possession of a parliamentary body would be characterised as a Class B record. As a Class B record, the provisions of the Archives Act as amended by the regulations made under ss 20 and 21 would apply to it. As such it would be in the care of Archives and in the open access period. Again for the reasons I set out in Attachment A, the copy of the transcript would not be subject to a claim for parliamentary privilege for Parliament has made it clear that, in relation to Class B documents, they are to be dealt with in terms of the Archives Act. Parliamentary privilege is inconsistent with the Archives Act. Archives would be required to make it available for access under s 31(1) but only if it were not an exempt Class B record under s 33 as amended by the regulations made under ss 20 and 21.
The particular document with which I am concerned is, however, in the custody of DFAT. I do not have any evidence that this particular copy of the document was in the possession of a parliamentary body at the time that s 27 would have required it to be transferred to the care of Archives. In other words, I do not have any evidence that the particular copy of the transcript was ever a Class B record for the purposes of the Archives Act. Like legal professional privilege, one copy of a document may be subject to the privilege and another copy of the same document may not be.
The fact that Parliament first excluded records in the possession of a Parliamentary body in s 18 and then made specific provision in s 20 for a regulatory regime to be made at some time in the future in relation to them indicates its recognition that common law principles relating to parliamentary privilege would continue to apply until that regulatory regime was put in place. Since the regulatory regime has been put in place in 1995, the Archives Act has applied to certain records held by a Parliamentary body. It is clear that a claim for parliamentary privilege cannot be made in respect of a document in the possession of a Parliamentary body transferred to Archives in accordance with that regulatory regime.
What is also clear is that the PP Act was enacted after the Archives Act. It applied to very specific issues. It no longer left the powers, privileges and immunities of each House of Parliament, their members and committees to the common law but expressly stated them. Those specific provisions do not leave room for the more generally and broadly based provisions of the Archives Act. It is not that the records are exempt under the Archives Act as might documents which are found to be exempt on the ground of legal professional privilege. It is that documents that are subject to the provisions of the PP Act and are not the subject of the regulatory regime provided for in s 20 of the Archives Act do not come within the ambit of the Archives Act at all.[54]
[54] Hillpalm Pty Ltd v Heaven’s Dear Pty Ltd [2002] NSWCA 301; (2002) 55 NSWLR 446 at [14]; 449; Meagher P with whom Handley and Hodgson JJA agreed
C.Decision regarding the transcript of the oral evidence given to the Joint Committee
Archives has excised the transcript from the copies of the 24 files that it has given me. The gaps in those files match the documents said to be subject to parliamentary privilege: A1838 1733/3/2 Part 12; Folios 49-65, 77-83, 274-291 and 294-313. What I do have is a certificate of the Clerk of the House of Representatives and the Clerk of the Senate relating to the transcript. On that basis, I am satisfied that the documents at A1838 1733/3/2 Part 12; Folios 49-65, 77-83, 274-291 and 294-313 are a copy of the transcript of the oral evidence before the Joint Committee would “disclose … any oral evidence taken by a House or a committee in camera, or a report of any such oral evidence”.[55] Also on the basis of the certificate, I am satisfied that, not only have the Clerk of the House of Representatives and the Clerk of the Senate not authorised it to be published, they have certified in accordance with ss 17(c) and (d) of the PP Act that the transcript has neither been published nor authorised to be published.
[55] Parliamentary Privileges Act 1987; s 13(b)
In light of those findings, I have decided that the documents at A1838 1733/3/2 Part 12; Folios 49-65, 77-83, 274-291 and 294-313 are subject to the provisions of the PP Act and are not the subject of the regulatory regime provided for in s 20 of the Archives Act. That would mean that the transcript of the oral evidence given before the Joint Committee on 12 and 19 September 1979 is subject to the PP Act and cannot be disclosed in response to a request under the Archives Act regardless of whether it comes within the terms of an exemption in that legislation or not.
I note that it is arguable that my conclusion would not affect another copy of the transcript if it had been transferred to Archives by a Parliamentary body under the regulatory regime. It is arguably a Class B record. If that is correct, it would make no difference that another copy is held in the possession of DFAT. If requested, Archives would be obliged to make a Class B record available for access in the open period unless it is an exempt record within the meaning of the Archives Act. Determination of that would require examination of the transcript.
Clause 45 of the Explanatory Memorandum to the Freedom of Information Amendment Bill explained that:
“46. The amendment in clause 23 will give the Act an operation it was intended to have. Clause 23 provides that a document is not an exempt document if its disclosure under the Act would constitute a breach of confidence if it is an internal working document which was prepared by a Minister, or by a member of the staff — 13 — of a Minister, a prescribed authority or an officer or employee of, an agency in the course of his duty for purposes relating to the affairs of an agency or of a Department of State.
47. The object of the proposed amendment is to make it clear that the breach of confidence ground of exemption in section 45 does not apply to internal working documents. The question whether these documents should remain confidential was intended to be considered in the light of the test of the harm to the public interest which would result from disclosure which is contained in section 36. A recent decision of the Administrative Appeals Tribunal has indicated that the mere fact that a departmental officer intended communications with another officer to be confidential may of itself be enough to bring that document within the scope of section 45 as it now stands. On this interpretation, section 45 would have a much wider operation than had been intended and there would be a more limited right of access than intended to internal working documents.”
Section 45(2) was itself amended with effect from 18 November 1986[279] by s 14 of the Freedom of Information Laws Amendment Act 1986, which added to the end of s 45(2) the words:
“unless the disclosure would constitute a breach of confidence owed to a person or body other than —
(a) a person in the capacity of Minister, member of the staff of a Minister or officer of an agency; or
(b) an agency or the Commonwealth.”
[279] Act No. 111 of 1986; s 2
The reason for this amendment was given in the Explanatory Memorandum to the Freedom of Information Laws Amendment Bill 1986:
“23. Recent decision of the Administrative Appeals Tribunal have indicated that s 45 as amended in 1983 may not exempt confidential information from outside Government (e.g. information provided orally by a business) from disclosure where it is incorporated in an internal working document prepared by an agency or Minister. This is not consistent with the original intention of s. 45(2) as indicated by explanatory materials distributed at the time that sub-section was enacted. The defect will be remedied by the proposed amendment to ensure that confidence owed to persons other than officials and Ministers will be protected.”
C.Amendment of s 45 of the FOI Act in response to Corrs Pavey judgment
Section 45(1) was the subject of amendment by s 32 of the Freedom of Information Amendment Act 1991.[280] That amendment commenced on 25 October 1991 and provided that s 45(1) was “… amended by omitting from subsection (1) ‘constitute a’ and substituting ‘found an action, by a person other than the Commonwealth, for’.” The Explanatory Memorandum explained that:
“Clause 32 implements a Senate Committee recommendation that the breach of confidence exemption in the Act be amended to make clear that it provides exemption where, and only where, the person who provided the confidential information would be able to prevent disclosure under the general law relating to breach of confidence. The amendment overcomes decisions by the Administrative Appeals Tribunal which have created uncertainty as to the scope of section 45 and which have expanded the exemption to protect some confidences that the general law does not protect, such as the information about a crime or fraud. Clause 32 amends sub-section 45(1) to provide that a document is an exempt document if its disclosure under the Act would found an action by a person, other than the Commonwealth, for a breach of confidence.”
[280] Act No. 137 of 1991
The reference to a Senate Committee in this passage is a reference to the Senate Standing Committee on Constitutional and Legal Affairs and to its 1987 Report on the Operation and Administration of Freedom of Information Legislation.[281]
[281] Explanatory Memorandum to the Freedom of Information Amendment Act 1991; outline
There were other amendments to s 45 in the following years but no others to s 45(1). It now reads, as it did at the end of 1991 when Parliament made it very clear that it intended that a document would be exempt only if disclosure were to found an action for breach of confidence i.e. the interpretation favoured by Gummow J:
“A document is an exempt document if its disclosure under this Act would found an action, by a person (other than an agency or the Commonwealth), for breach of confidence.”
TABLE OF DOCUMENTS IN ISSUE SUMMARISING DOCUMENTS IN DISPUTE, DECISIONS UNDER REVIEW AS AT 1 MAY 2018 AND DECISIONS
No.
Tribunal File Number
PDF reference
File title and Archives’ file reference
(Applicant’s content description)
Decision reference
Exempt material as described in decision under review
Findings of fact by Archives as to content
Exemption claimed under the Archives Act 1983
Decision
1.
2014/1330
252
Law of the Sea – Delimitation – Australia – Indonesia [Timor]
A1838 1733/3/2 Part 8, 1763271
(Part 8 of DFAT’s digitalised primary file on Australia and Indonesia Timor Sea maritime boundary negotiations post Indonesia’s invasion of East Timor and dating from 12 February 1979 to 19 February 1979.
It covers the first round of seabed negotiations between Australia and Indonesia between 14 and 16 February 1979.
It includes correspondence regarding Australian Timor Sea oil exploration permit holders, reports on official seabed boundary talks with Indonesia in February 1979, summaries of 1971 and 1972 negotiations with Indonesia, the proclamation of an Australian fishing zone, briefs for the Parliamentary Sub-committee on territorial boundaries and related documents.)
14 September 2016: Replacement Access Decision together with Statement of Reasons (T63 at 156-158)
Replaced Decision and Statement dated 13 November 2015 (T36 at 74-76)
Partially exempt (92 folios):
Folios: 7, 11, 50, 53, 56-58, 65, 68, 70, 73, 74, 83, 85, 88-90, 95, 100-105, 108-112, 114-116, 117, 118, 127-132, 137-142, 146-150, 152-154, 155, 156, 157, 160-163, 166-171, 191-196, 200-208, 209, 210, 211, 214-219, 221, 222, 231
Wholly exempt (14 folios):
Folios: 51-52, 63, 64, 66, 67, 71, 72, 99, 126, 136, 165, 177, 190
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
2.
2014/1331
304
Law of the Sea – Delimitation – Australia – Indonesia [Timor]
A1838 1733/3/2 Part 9, 1763271
Part 9 of DFAT’s primary file on Australia and Indonesia and Timor Sea maritime boundary negotiations post Indonesia’s invasion of East Timor.
It runs from 1 February 1976 to 6 May 1979.
It includes correspondence regarding Australian Timor Sea permit holders, reports on official seabed boundary talks with Indonesia in February 1979, summaries of 1971 and 1972 negotiations with Indonesia, the proclamation of an Australian fishing zone, briefs for the Parliamentary sub-committee on territorial boundaries and related documents.
14 September 2016: Replacement Access Decision together with Statement of Reasons (T62 at 153-155)
Replaced Decision and Statement dated 13 November 2015 (T34 at 68-70)
Partially exempt (33 folios)
Folios: 15-91, 21-25, 27, 48-49, 75, 79-82, 142, 151, 163-164, 222-225, 281-282, 285-287, 298
Wholly exempt
(1 folio):Folio: 64
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
3.
2104/1332
357
Law of the Sea – Delimitation – Australia – Indonesia [Timor]
A1838 1733/3/2 Part 10, 1763271
Part 10 of DFAT’s primary file on Australia and Indonesia Timor Sea maritime boundary negotiations post Indonesia’s invasion of East Timor.
It runs from 7 May 1979 to 31 May 1979.
It concerns Australia’s negotiating position for the second round of talks in May 1979, and includes transcripts of negotiations; correspondence and records of meetings with Australian oil exploration permit holders and related documents.
14 September 2016: Replacement Access Decision together with Statement of Reasons (T61 at 150-152)
Replaced Decision and Statement dated 13 November 2015 (T32 at 62-64)
Partially exempt (24 folios):
Folios: 14, 15, 20, 32, 38, 52, 60, 65, 66, 73, 76, 86, 89, 94, 96, 112, 114, 163-166, 261-263
Wholly exempt
(14 folios):Folios: 16-19, 21, 50, 51, 61-64, 74, 75, 87, 88, 95, 113
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
4.
2014/1333
164
Law of the Sea – Delimitation boundaries Australia Indonesia Timor – Joint development zones
DFAT file on Australia and Indonesia’s Timor Sea maritime boundary negotiations.
It runs from 12 October 1983 to 7 February 1985.
It includes documents regarding: Australia’s realisation that agreement could not be reached on a maritime boundary of the Timor Gap, and early discussions on a resource sharing treaty as an alternative to an agreed maritime boundary.
13 November 2015:
Updated Access Decision with Statement of Reasons (T29, pp 54-56)Partially exempt (2 folios):
Folios: 128, 129
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
5.
2014/1334
315
Law of the Sea – Delimitation – Australia – Indonesia [Timor]
A1838 1733/3/2 Part 7, 1872072
Part 7 of DFAT’s primary file on Australia and Indonesia Timor Sea maritime boundary negotiations post Indonesia’s invasion post Indonesia’s invasion of East Timor.
It runs from 15 January to 9 February 1979.
It includes versions of briefs for the official talks on delimitation of the seabed boundary between Australia and Indonesia that occurred on 14 to 16 February 1979, the Report of Australia’s Delegation of 2 to 10 October 1972, records regarding companies with Australia oil exploration permits for the Timor Gap, and related documents.
14 September 2016:
Replacement Access Decision together with Statement of Reasons (T58, pp 140-143)Replaced Decision and Statement dated 30 November 2015 (T37, pp 77-79)
Partially exempt (65 folios):
Folios: 4, 63, 87, 94, 95, 99, 100, 105, 117-119, 124-126, 130, 136, 142-144, 185, 187, 188, 191-193, 204, 206, 208, 209, 218-220, 223-225, 228-229, 231, 234-236, 247, 249, 251, 252, 261, 263, 266-269, 272, 275-277, 284, 287, 288, 290, 292, 293, 302, 304, 307-309.
Wholly exempt
(43 folios):Folios: 5-32, 183, 184, 186, 207, 226, 227, 230, 250, 270-271, 282, 283, 285, 286, 291.
For all folios other than 5-32, the records contain information relevant to Australia/Indonesia maritime boundary delimitation negotiations.
For folios 5-32, the material is legal opinion.
s 33(1)(a)
In respect of all folios, disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(2)
In respect of folios 5-32, the information is of such a nature that it would be exempt from disclosure in legal proceedings. The legal advice was asked for, and given in, confidence and is protected from release because it would breach the right of the client to seek independent legal advice without it being used against them including in any subsequent legal proceedings.
There is no evidence that the client waived or withdrew the privilege in the intervening period and nor has the advice been made public.
The advice was provided by a qualified legal practitioner in a relationship of solicitor and client and was not provided for administrative purposes.
The public’s interest in the right to know about the processes of government are outweighed by the need for information to be protected from release because of the ongoing sensitivities .
s 33(1)(a)
Exempt
s 33(2)
Not exempt under s 33(2) but exempt under s 33(1)(a).
6.
2014/1335
254
Law of the Sea – Delimitation – Australia – Indonesia [Timor]
A1838 1733/3/2 Part 12, 1872073
Part 12 of DFAT’s primary file on Australia and Indonesia Timor Sea maritime boundary negotiations post Indonesia’s invasion of East Timor.
It runs from 29 August 1979 to 19 October 1979.
It includes documents regarding UN motions on East Timor, Jusuf Wanandi visit to Australia in August 1979, details of petroleum exploration permits in the Timor Gap area, talks between Australia and Indonesia at the UN regarding the Timor Sea, declaration of Australian fishing zone, concerns of the Australian Department of Defence about the disputed fishing zone, and reports of mass casualties in East Timor as a direct result of the Indonesian invasion.
13 November 2015:
Updated Access Decision with Statement of Reasons (T38, pp 80-82)Further claim that Folios 5-32 exempt under s 33(1)(a) made during the hearing.
Partially exempt (4 folios):
Folios: 44, 46, 72, 74
Wholly exempt
(62 folios):Folios: 49-65, 77-83, 274-291, 294-313
For folios 44, 46, 49-52, 54, 56-59, 72, 74, 275-277, 280-281, 283-285, 287-290, 296-298, 301-302, 304-306, 308-311, the records contain information relating to Australia/Indonesia maritime boundary delimitation negotiations. The information remains sensitive.
For folios 49-65, 274-291, 294-313, the records contain transcripts of in camera evidence of briefings provided by DFAT to the Parliamentary Joint Committee of Foreign Affairs and Defence, Sub-committee on Territorial Boundaries, from 19 September 1979 and on of the transcripts for 12 September 1979.
Folios 77-83 contain an uncorrected proof of the Parliamentary Joint Committee of Foreign Affairs and Defence, Sub-committee on Territorial Boundaries, from 19 September 1979 and on of the transcripts for 12 September 1979.
s 33(1)(a)
In respect of folios 44, 46, 49-52, 54, 56-59, 72, 74, 275-277, 280-281, 283-285, 287-290, 296-298, 301-302, 304, 306, 308-311, disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(d)
In respect of folios 49-65, 77-83, 274-291, and 294-313, the public disclosure of the information would constitute a breach of confidence as there is no record of the transcripts’ being approved for publication.
A Parliamentary committee’s documents that have not been authorised for publication by that committee cannot be disclosed to any person other than a member of the committee (Senate Standing Order 37 and House of Representatives Order 242).
s 33(1)(a)
Folios other than 49-65, 77-83, 274-291 exempt
Folios 49-65, 77-83, 274-291 not exempt as content not made available to be reviewed as claimed to be subject to parliamentary privilege.
s 33(1)(d)Folios 49-65, 77-83, 274-291 not exempt under s 33(1)(d) as content not made available to be reviewed as claimed to be subject to parliamentary privilege.
Folios 49-65, 77-83, 274-291 subject to parliamentary privilege and so not subject to the provisions of the Archives Act.
7.
2014/1337
351
Portuguese Timor – Continental Shelf
A5034, SR1974/3009
Part 1, 11089375Part 1 of an Attorney-General’s Department file covering 1970 to 1975 concerning Australia’s seabed claim in the Timor Sea.
It includes records regarding: Oceanic Exploration (the US company issued a permit to the median line by Portugal), briefs on visits to Portuguese Timor, correspondence with other departments regarding Oceanic Exploration, reports on the activities of companies issued Australian oil exploration permits, draft and final protest notes to Portugal, maps showing overlapping permits in the Timor Sea, cables regarding approaches to Portugal to negotiation post October 1972 and pre-September 1974, briefs on oil exploration permit holders concerns regarding implications of Oceanic permit, correspondence with the embassy in Lisbon regarding oil exploration permits, and updates on UN Convention on the Law of the Sea.
14 September 2016:
Replacement Access Decision together with Statement of Reasons (T68, pp 171-173)Replaced Decision and Statement dated 13 November 2015 (T35, pp 71-73)
Wholly exempt
(1 folio):Folio: 68
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
8.
2014/1342
189
Australia: Portuguese Timor: Seabed Boundary: Timor Gap Treaty
A1690, DPIE1975/000958, 31167593
Department of National Development file from April to December 1975 concerning Australia’ petroleum exploration permits in the Timor Sea.
It includes documents regarding: Portugal’s oil exploration permit to Oceanic to the median line in the Timor Gap area, the Australian government’s willingness to support the archipelagic principle, and hopes of Timor Sea yielding important gas finds.
23 October 2014:
Access Decision together with Statement of Reasons
(T33, pp 65-67)Partially exempt (5 folios):
Folios: 70. 74, 82, 83, 122
Wholly exempt
(1 folio):Folio: 121
Not within open access period (6 folios):
Folios 183-155
The exempt records contain information relating to Australia/Indonesia maritime boundary delimitation negotiations.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
9.
2014/5348
388
Indonesia – Australia – Indonesia Continental Shelf Boundaries – (Agreement) Negotiations
A1838 752/1/23 Part 16, 551881
Part 16 of primary DFAT file on negotiations with Indonesia and Portugal in the early 1970s concerning a seabed boundary in the Timor Sea.
It runs from 10 to 17 October 1972, the period immediately following the 4 to 10 October 1972 seabed negotiations between Australia and Indonesia that resulted in the 1972 Treaty.
It includes: draft Bowen cabinet submission for talks in September 1972; legal advice from Lauterpacht dated 19 July 1972 provided to Livermore at National Development on 27 September 1972; the first draft of the Bowen submissions; 2 copies of the seventh draft of an AEC submission to the Department of the Administrator of PNG; a copy of the agreement between Australia, Indonesia Timor and Arafura Seas dated 6 October 1972; a copy of cabinet submission 1165 dated 25 Nov 1965; and Australian delegation opening remarks and minutes.
14 September 2016: Replacement Access Decision together with Statement of Reasons (T67, pp 168-170)
Replaces Decision and Statement dated 16 October 2015 (T39, pp 83-85)
Partially exempt (9 folios):
Folios: 97, 98, 99, 181 (consisting of sub-folios a, b and d)
Wholly exempt
(3 folios):Folios: 367, 368, 369
Not within open access period (6 folios):
Folios 183-155
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
10.
2014/5349
357
Law of the Sea – Delimitation – Australia – Indonesia [Timor]
A1838 1733/3/2 Part 1, 1872066
Part 1 of DFAT’s primary file on Australia and Indonesia Timor Sea maritime boundary negotiations, post Indonesia’s invasion of East Timor.
It runs from 30 August 1971 to 30 March 1976.
It includes documents (including briefs, cables and draft cabinet submissions) regarding the ratification of the 1971 and 1972 Treaties; conflict between the Australian Federal and State governments over the right to exercise jurisdiction offshore; offshore permit holders in the Timor Sea; and other related documents.
11 November 2015: Updated Access Decision together with Statement of Reasons (T40, pp 86-88)
Partially exempt (7 folios):
Folios: 74, 75, 80, 88, 92, 93, 118
The exempt records contain information relating to Australia/Indonesia maritime boundary delimitation negotiations.
s 33(1)(a)
Disclosure of the exempt information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
11.
2014/5350
237
Law of the Sea – Delimitation – Australia – Indonesia [Timor]
A1838 1733/3/2 Part 6, 1872071
Part 6 of DFAT’s primary file on file on Australia and Indonesia Timor Sea maritime boundary negotiations, post Indonesia’s invasion of East Timor.
It runs from 21 December 1978 to 30 January 1979.
It includes: drafts of negotiation instructions for the first round of negotiations with Indonesia scheduled for February 1979, Portugal’s complaint about not being informed regarding Australia’s recognition of Indonesia’s occupation of East Timor, media coverage of Mochtar’s December 1978 visit to Canberra and joint announcement with Peacock regarding start of the Timor Sea maritime boundary, IDC minutes, including reference to delays negotiating with Indonesia holding up petroleum exploration, and related documents.
14 September 2016:
Updated Access Decision together with Statement of Reasons (T55, pp 130-133)Further claim that Folios 5-32 exempt under s 33(1)(a) made during the hearing.
Partially exempt (17 folios):
Folios: 31, 55, 76, 77, 82, 94, 95, 96, 150, 156, 161, 162, 167, 179, 180, 181
Wholly exempt
(28 folios):Folios: 183-210
For the partially exempt folios: the exempt records contain information relevant to Australia/Indonesia maritime boundary delimitation matters.
For the wholly exempt folios: the exempt material is a legal opinion.
s 33(1)(a)
In respect of all folios, disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(2)
In respect of folios 183-210, the exempt information is of such a nature that it would be exempt from disclosure in legal proceedings.
Legal advice was asked for, and given, in confidence and is protected from release because it would breach the right of the client to seek independent legal advice without it being used against them including in any subsequent legal proceedings.
There is no evidence that the client waived or withdrew the privilege in the intervening period and nor has the advice been made public.
The client claimed legal professional advice on the information in the record. There is no evidence the legal professional privilege was waived or withdrawn by the client in the intervening period. Nor has the advice been made public.
The advice was provided by a qualified legal practitioner and was not provided for administrative purposes.
The information continues to be sensitive despite the passage of time and the information has enduring confidentiality.
The public’s interest in the right to know about the processes of government are outweighed by the need for information to be protected from release because of the ongoing sensitivities .
s 33(1)(a)
Exempt
s 33(2)Not exempt under s 33(2) but exempt under s 33(1)(a).
12.
2014/5351
336
Timor trough border negotiations [5cm]
A452, 1972/1726, 3123655
Department of External Territories file. The Department of External Territories was responsible for Australia’s colony of Papua New Guinea, and Australia’s territories the Cocos (Keeling) Islands and Christmas Island. The seabed negotiations with Indonesia were intended to settle the seabed border between Indonesia and PNG to the south and north of PNG ahead of PNG’s independence in 1975.
It includes: transcripts for the October 1972 negotiations between Australia and Indonesia geologists arguing Indonesia and Australia share the same continental shelf, a paper setting out the Department of External Territories’ position that there be no concessions beyond the “McCay line”, - and a cable from Australia’s Ambassador to Indonesia (Robert Furlonger) to DFAT in Canberra dated 18 August 1972 providing advice on seabed negotiations with Indonesia.
14 September 2016:
Replacement Access Decision together with Statement of Reasons (T57, pp 137-139)Replaces Decision and Statement dated 16 October 2015 (T42, pp 91-93)
Partially exempt (22 folios):
Folios: 21, 25-29, 34-37, 41, 43, 49, 50, 52, 53, 68, 69, 82, 234, 235, 255
Wholly exempt
(3 folios):Folios: 238-240
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
13.
2014/5352
376
Indonesia – Australia – Indonesia Continental Shelf Boundaries (Agreement) Negotiations
A1838 752/1/23 Part 10, 551869
Part 10 of primary DFAT on negotiations with Indonesia and Portugal in the early 1970s concerning a seabed boundary in the Timor Sea.
It ran from March to April 1972.
It includes: drafts of a cabinet submission by the Foreign Minister, Nigel Bowen, concerning Australia’s pending negotiations with Indonesia about a seabed boundary in the Timor Sea, cables and correspondence concerning departmental conflict about Australia’s negotiation tactics with Indonesia including the Minister for Interior, correspondence concerning Australia’s negotiation tactics at UNCLOS, parts of the record of cabinet decision 999 on Submissions 674 and 675 – Seabed Boundary with Indonesia 23 May 1972, Possible Parliamentary Questions 31 May 1972 for Prime Minister McMahon.
14 September 2016: Replacement Access Decision together with Statement of Reasons (T66, pp 165-167)
Replaces Decision and Statement dated 11 November 2015 (T43, pp 94-96)
Partially exempt (33 folios):
Folios: 7-8, 25-27, 54, 55, 61, 62, 65, 67, 68, 71, 164, 168, 191, 191A, 192, 195, 251, 290, 291, 302-307, 339-341, 368
Wholly exempt
(3 folios):Folios: 245, 246, 271
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
The exempt records contain information relevant to the capability, sources, objectives, methods, areas of interest or operations of an Australian Intelligence Agency. The information is still regarded as sensitive.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
The public disclosure of this information could compromise the future of activities of an Australian intelligence agency and impair its ability to carry out its statutory functions. I would therefore reasonably be expected to cause damage to the security of the Commonwealth.
s 33(1)(a)
Exempt
14.
2014/5353
257
Indonesia – Australia – Indonesia Continental Shelf Boundaries (Agreement) Negotiations
A1838 752/1/23 Part 11, 551873
Part 11 of primary DFAT on negotiations with Indonesia and Portugal in the early 1970s concerning a seabed boundary in the Timor Sea.
It ran from 10 May to 9 June 1972.
It includes: the submissions of the Foreign Minister, Nigel Bowen; correspondence regarding Australia’s negotiating tactics at UNCLOS; parts of the record cabinet decision 999 on Submissions 674 and 675 – Seabed Boundary with Indonesia 23 May 1972; and possible Parliamentary Questions dated 31 <au 1972 for Prime Minister McMahon concerning Australia’s decision to cancel maritime boundary talks with Indonesia.
30 November 2015:
Replacement Access Decision together with Statement of Reasons (T44, pp 97-99)Replaces 16 October 2014 Decision and Statement
Partially exempt (13 folios):
Folios: 31-33, 44, 47, 48, 49, 53, 89, 99, 100, 191
Wholly exempt
(8 folios):Folios: 18, 39-42, 180-182
For all folios except 18, 39-42, 180-182: the exempt information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
For folios 18, 39-42, 180-182: the exempt records contain information relevant to the capability, objectives, methods, areas of interest or operations of an Australia security agency. The information is still regarded as sensitive.
s 33(1)(a)
For all folios except 18, 39-42, 180-182: disclosure of the exempt information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
For folios 18, 39-42, 53, 180-182: the public disclosure of this information could compromise the future of activities of an Australian intelligence agency and impair its ability to carry out its statutory functions. It would therefore reasonably be expected to cause damage to the security of the Commonwealth.
s 33(1)(a)
Exempt
15.
2014/5354
270
Indonesia – Australia – Indonesia Continental Shelf Boundaries (Agreement) Negotiations
A1838 752/1/23 Part 12, 551875
Part 11 of primary DFAT file on negotiations with Indonesia and Portugal in the early 1970s concerning a seabed boundary in the Timor Sea.
It runs from 9 June 1972 to July 1972, picking up from the abandoned May 1972 talks.
It includes: cabinet submissions regarding negotiation strategies and related cables and correspondence.
11 November 2015: Updated Access Decision together with Statement of Reasons (T45, pp 100-102)
Partially exempt (61 folios):
Folios: 26-29, 55, 58-60, 81-84, 86, 87, 91-94, 98, 100, 118-120, 122, 124, 180-184, 187, 188-191, 197, 199-202, 204, 205, 209-213, 218-221, 224-226, 228, 229, 233, 260
Wholly exempt
(4 folios):Folios: 56, 99, 194, 195
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
16.
2014/5355
232
Indonesia – Australia – Indonesia Continental Shelf Boundaries (Agreement) Negotiations
A1838 752/1/23 Part 13, 551877
Part 13 of primary DFAT file on negotiations with Indonesia and Portugal in the early 1970s concerning a seabed boundary in the Timor Sea.
It runs from July 1972 to August 1972.
It includes documents concerning: preparation for new seabed boundary talks with Indonesia proposed for September 1972 (after May 1972 talks were deferred); cabinet submissions regarding negotiation strategies including Foreign Minister Nigel Bowen’s submission for the September/October 1972 talks; and a cable from Australia’s Ambassador to Indonesia, Robert Furlonger, to DFAT in Canberra 18 August 1972 providing advice on seabed negotiations with Indonesia; a Brief titled “Seabed Boundary with Indonesia – political aspects” dated 12 July 1972; and other related documents.
14 September 2016:
Replacement Access Decision together with Statement of Reasons (T56, pp 134-136)
Replaces Decision and Statement dated 11 November 2015 (T46, pp 103-105)
Partially exempt (29 folios):
Folios: 11-16, 20, 21, 23, 49, 50, 82-84, 86, 88, 88, 89, 91, 103, 110, 111, 113, 114
Wholly exempt
(1 folio):Folio: 107
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
17.
2014/5356
341
Indonesia – Australia – Indonesia Continental Shelf Boundaries (Agreement) Negotiations
A1838 752/1/23 Part 14, 551878
Part 14 of primary DFAT file on negotiations with Indonesia and Portugal in the early 1970s concerning a seabed boundary in the Timor Sea.
It runs from 25 September 1972 to 4 October 1972.
It includes: documents regarding preparation for new seabed boundary talks with Indonesia proposed for 2 to 10 October 1972 (after May & September dates deferred); cabinet submissions regarding negotiation strategies and related cables and correspondence (including the Bensbach River issue) and the states; Bureau of Mineral Resources survey maps of the Timor Sea; a brief summarising 1970 negotiations between Indonesia’s lead negotiator, Kusumaatmadja Mochtar, and Australia’s lead negotiator, Laurence McIntryre , and events since (including a paragraph regarding Indonesian protest notes dated 6 March 1972 and the August 1972 cable of Australia’s Ambassador to Indonesia, Robert Furlonger); and a transcript of 1970 negotiations.
14 September 2016:
Replacement Access Decision together with Statement of Reasons (T65, pp 162-164)
Replaces Decision and Statement dated 16 October 2015 (T47, pp 106-108)
Partially exempt (19 folios): 25-26, 193-196, 198-201, 220-222, 321, 322, 324, 325
Folios:
Wholly exempt
(2 folios):Folio: 210, 328
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
18.
2014/5357
264
Indonesia – Australia – Indonesia Continental Shelf Boundaries (Agreement Negotiations)
A1838. 752/1/23 Part 15
Part 15 of primary DFAT file on negotiations with Indonesia and Portugal in the early 1970s concerning a seabed boundary in the Timor Sea.
It runs from 25 September 1972 to 11 October 1972 (which is the period leading up to and including the 4 to 10 October 1972 seabed negotiations between Australia and Indonesia that resulted in the 1972 Treaty.
It includes: draft cabinet submission by the Foreign Minister, Nigel Bowen, for talks in September 1972; a paper tabled by Indonesia asserting Timor is on the Australian continental shelf; and other related documents.
14 September 2016: Replacement Access Decision together with Statement of Reasons (T64, pp 159-161)
Replaces Decision and Statement dated 11 November 2015 (T48, pp 109-111)
Partially exempt (11 folios):
Folios: 7, 8, 10. 11. 15-18. 20, 21, 27
Wholly exempt
(1 folio):Folio: 4
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
19.
2014/5358
328
Australia – Portugal – Negotiations on Portuguese Timor – Continental Shelf
A1838 756/1/4 Part 2, 558639
Part 2 of the DFAT file on Australia’s response to approaches from Portugal to commence Timor Sea maritime boundary negotiations between 1970-1973.
It ran from 1970 to 1973.
It includes: briefs, correspondence and cables regarding attempts by Portugal to commence Timor Sea maritime boundary negotiations with Australia; inter-departmental advice on this issue; assurances to Australian oil exploration permit holders that their permits were sound, maps of Oceanic Exploration’s permit; and other related material.
16 October 2015: Access Decision together with Statement of Reasons (T49, pp 112-114)
Partially exempt (2 folios):
Folios: 125, 126
Wholly exempt
(1 folio):Folio: 321
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
20.
2014/5360
224
Law of the Sea – Delimitation – Australia – Indonesia [Timor] Part 5
A1838 1733/3/2 Part 5, 1872070
Part 5 of DFAT’s primary file on Australia and Indonesia Timor Sea maritime boundary negotiations post Indonesia’s invasion of East Timor.
It runs from 10 October 1978 to 20 December 1978.
It includes documents (including briefs cables, draft cabinet submissions) regarding fisheries and seabed negotiations with Indonesia; Forth Committee debates at the UN regarding Indonesia’s illegal occupation of East Timor; the issue of negotiations marking Australia’s de factor or de jure recognition of Indonesia’s illegal occupation of East Timor; discussions with Indonesian Minister Mochtar regarding the Timor Sea maritime boundary negotiations; meetings with offshore oil exploration permit holders and other related documents.
11 November 2015:
Updated Access Decision together with Statement of Reasons (T50, pp 115-117)Updated to correct errors in Decision and Statement of dated 16 October 2015.
Partially exempt (2 folios):
Folios: 149 and 150
The exempt records contain information relating to Australia/Indonesia maritime boundary delimitation negotiations.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
21.
2014/5362
186
Discussions between Indonesia and Australia regarding continental shelf boundary
A1209, 1970/6400 Part 2, 8306788
Prime Minister and Cabinet file from 1971-1972.
It includes documents regarding attempts to restart maritime boundary negotiations with Indonesia after the May 1971 Treaty.
Updated Access Decision together with Statement of Reasons (T51, pp 118-120)
Updated to correct errors in Decision and Statement dated 16 October 2015.
Partially exempt (2 folios):
Folios: 95 and 96
The exempt records contain information relating to Australia/Indonesia maritime boundary delimitation negotiations.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
22.
2014/5363
222
Law of the Sea – Delimitation – Australia – Indonesia [Timor]
A1838 1733/3/2 Part 4, 1872069
Prime Minister and Cabinet file from 1971-1972.
It includes documents regarding attempts to restart maritime boundary negotiations with Indonesia after the May 1971 Treaty.
14 September 2016: Replacement Access Decision together with statement of reasons (T60, pp 147-149)
Replaces Updated Decision and Statement dated 11 November 2015 (T52, pp 122-123), which in turn updated access Decision together with Statement of Reasons dated 23 July 2015 (T30, pp 57-58)
Partially exempt (8 folios):
Folios: 56, 127, 130, 139, 145, 171, 177 and 197
The exempt records contain information relevant to Australia/Indonesia maritime boundary delimitation negotiations.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
23.
2014/5364
262
Law of the Sea – Delimitation – Australia – Indonesia [Timor] Part 5
A1838 1733/3/2 Part 5, 1872070
Part 5 of DFAT’s primary file on Australia and Indonesia Timor Sea maritime boundary negotiations post Indonesia’s invasion of East Timor.
It runs from 10 October 1978 to 20 December 1978.
It includes documents (including briefs cables, draft cabinet submissions and IDC committee minutes) regarding fisheries and seabed negotiations with Indonesia in December 1978; the issue of negotiations marking Australia’s de factor or de jure recognition of Indonesia’s illegal occupation of East Timor; oil prospects in East Timor; and the Australian delegation to the 1972 seabed boundary talks.
14 September 2016: Replacement Access Decision together with Statement of Reasons (T59, pp 144-146)
Replaces updated decision and Statement dated 11 November 2015 (T53, pp 124-126), which in turn updated Access Decision together with Statement of Reasons dated 26 August 2014 (T31, pp 59-61)
Partially exempt (11 folios):
Folios: 18, 24, 27, 36, 42, 57, 78, 118, 124, 232, 238
The exempt records contain information relevant to Australia/East Timor maritime boundary delimitation matters.
s 33(1)(a)
Disclosure of the information could compromise Australian foreign policy interests, and thus could be expected to cause damage to the security and international relations of the Commonwealth.
s 33(1)(a)
Exempt
24.
2017/2115
34
Submission No. 1865:
East Timor – Australian policy – Decision 4485 (FAD)A12909.1865, 8911897 13 April 2017
The file includes: Cabinet Minute, Foreign Affairs and Defence Committee, dated 17 January 1978, Decision No. 4485 (FAD) and related Submission No. 1865 – East Timor – Australian Policy.
Statement of Reasons for Decision on Internal Reconsideration Application under section 42 of the Archives Act 1983 (T7 of separate Tribunal documents, pp 13-16)
Partially exempt (3 folios):
Folios: 2, 3, 13
The exempt records contain information relating to the security, defence or international relations of the Commonwealth of Australia that continues to be sensitive.
s 33(1)(a)
Disclosure of the exempt information could damage Australia’s international interests and relations.
s 33(1)(a)
Exempt
| I certify that the preceding two-hundred and ninety-two (292) paragraphs and Attachment C are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
........................[sgd]................................................
Associate
Date of decision: 9 June 2020
Heard: Applicant’s counsel: | 30 April 2018; 1, 2, 3 and 4 May 2018; and 11 July 2018 Ms G Costello SC with Dr A McBeth |
| Applicant’s solicitor: Respondent’s counsel: | Ms M Leikina, Ms K Stern SC |
| Respondent’s solicitor: | Mr J Hyland and Mr L Akele Australian Government Solicitor |
220 ALR 587; 41 AAR 23; 88 ALD 12; 80 ALJR 1549; 63 ATR 409; Tamberlin, Conti and Jacobson JJ at [246]; 142; 655; 94; 80; 1569; 434 per Jacobson J approved by Callinan and Heydon JJ in McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423; 229 ALR 187; 91 ALD 516; 43 AAR 151 at [93]; 456; 212; 541; 177
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