Patrick and Director-General, Australian Submarine Agency (Freedom of information)
[2024] AATA 2411
•12 July 2024
Patrick and Director-General, Australian Submarine Agency (Freedom of information) [2024] AATA 2411 (12 July 2024)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2024/1343
Re:Rex Patrick
APPLICANT
AndDirector-General, Australian Submarine Agency
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date: 12 July 2024
Place:Adelaide
The decision under review is affirmed.
...........................[sgd].............................................
Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – review of decision to refuse access to documents prepared by the Nuclear-Powered Submarine Taskforce within the Department of Defence – whether disclosure of the documents would, or could reasonably be expected to, cause damage to the security, the defence or the international relations of the Commonwealth pursuant to ss 33(a)(i), (ii) or (iii) of the FOI Act – whether disclosure of the documents would divulge any information or matter communicated in confidence pursuant to s 33(b) of the FOI Act – where disclosure of the document would breach confidence and trust between the government of Australia and the governments of the United States and the United Kingdom – the documents are exempt from disclosure under s 33 of the Freedom of Information Act – decision under review is affirmed
Legislation
Freedom of Information Act 1982 (Cth)
Cases
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645Secretary, Department of Prime Minister and Cabinet and Summers [2019] AATA 5537
Secondary Materials
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (February 2022)
REASONS FOR DECISION
Deputy President Britten-Jones
12 July 2024
The applicant has been refused access under the Freedom of Information Act 1982 (FOI Act) to documents prepared by the Nuclear-Powered Submarine Taskforce (the Taskforce) within the Department of Defence. The documents in issue have been reduced to four documents described as Document 2, Document 4, Document 5 and Document 6 in the annexure to the respondent’s Statement of Facts, Issues and Contentions dated 21 March 2024. Documents 4, 5 and 6 have been partially released by way of redacted copies which are before the Tribunal as Exhibit 7.
Document 2 has been fully withheld and is described as a paper dated March 2023 on nuclear safeguards and non-proliferation. Document 4 has been partially disclosed and is described as a ‘non-paper’ of the Department of Defence dated September 2022 about spent nuclear fuel. Document 5 has been partially disclosed and is described as a discussion paper from the Taskforce dated October 2022 on the proposed approach to regulating Australia’s nuclear submarine enterprise. Document 6 has been partially disclosed and is described as a ‘non-paper’ dated December 2021 about non-proliferation and Australia’s acquisition of nuclear-powered submarines.
The applicant described the topic of his request as being:[1]
… one that goes to elements of the AUKUS program that relate to nuclear regulation, stewardship and safety, the management of operations nuclear waste, reactor decommissioning, and the management of nuclear waste.
The request doesn’t seek access to the maximum depth and speed of the submarine, the design of the submarine’s nuclear reactor, the weapon launch procedures, nor the submarine’s acoustic signatures.
Some, if not most, of it must be information which, if disclosed, would not cause damage.
The information sought is of the type that intersects with the community, and which would, [if released] … cause benefit to the defence of the Commonwealth through the ‘building of a social licence for nuclear’.
[1] Applicant Statement of Facts, Issues and Contentions dated 15 April 2024 (‘ASOFIC’), [8]-[11].
The respondent contends that the four documents are exempt or partially exempt from disclosure for reasons related to national security, defence or international relations under ss 33(a)(i), 33(a)(ii), 33(a)(iii) and 33(b) of the FOI Act.
LEGISLATIVE FRAMEWORK
The High Court considered the legislative framework of the FOI Act in Kline v Official Secretary to the Governor-General[2]:
.… The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
2 [2013] HCA 52; (2013) 249 CLR 645, [37] (French CJ, Crennan, Kiefel and Bell JJ).
The general objects of the FOI Act are set out in s 3 as follows:
(1)The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a)requiring agencies to publish the information; and
(b)providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a)increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b)increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
In furtherance of the object in s 3(1)(b) of the FOI Act, s 11(1) provides that:
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a)a document of an agency, other than an exempt document; or
(b)an official document of a Minister, other than an exempt document.
Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the Act ‘subject to this section’. Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document. Section 11A(5) provides that the agency or Minister must give access to the document if it is conditionally exempt unless access to the document would be contrary to the public interest.
The term ‘exempt document’ is relevantly defined in s 4(1) to include ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
A document is exempt for the purposes of this Part if:
(a)it is an exempt document under Division 2; or
(b)it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
Section 33 in Division 2 of Part IV of the FOI Act provides that:
A document is an exempt document if disclosure of the document under this Act:
(a)would, or could reasonably be expected to, cause damage to:
(i)the security of the Commonwealth;
(ii)the defence of the Commonwealth; or
(iii)the international relations of the Commonwealth; or
(b)would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
The phrase ‘could reasonably be expected to’ was considered by the Full Court of the Federal Court in Attorney-General’s Department v Cockcroft[3] where Bowen CJ and Beaumont J said:
In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information” were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based: see Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 per Mason J and per Gibbs CJ.
[3] (1986) 10 FCR 180, 190.
The Tribunal is required by s 93A of the FOI Act to have regard to any guidelines issued by the Information Commissioner. The FOI Guidelines[4] with respect to exemptions provides at [5.17]:
The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires analysis of the reasonable expectation rather than certainty of an event, effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.
[4] Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (February 2022) (‘FOI Guidelines’).
The FOI Guidelines also provide that the phrase ‘international relations’ has been interpreted as the ability of the Australian government to maintain good working relations with other governments and international organisations and to protect the flow of confidential information between them; it encompasses intangible damage, such as loss of trust and confidence in the Australian government.[5]
[5] FOI Guidelines at [5.35]-[5.37].
EVIDENCE
The parties agreed facts which are set out in Exhibit 6. The agreed facts include reference to:
(a)A Bill to establish a new dedicated Nuclear Safety Regulator for Nuclear Powered Submarines tabled in Parliament. The Bill is about regulating certain activities relating to AUKUS submarines.
(b)Information officially published by the Australian Submarine Agency in relation to emergency preparedness and response, non-proliferation, nuclear safety and radiological protection/stewardship and radioactive waste and spent nuclear fuel.
Oral and affidavit evidence was given by Alexandra Kelton, Head Policy, Strategy and Engagement Division in the Australian Submarine Agency, which was established on 1 July 2023. The affidavit of Ms Kelton is partly redacted so as not to disclose sensitive information. In her open affidavit, Ms Kelton deposed by way of background that:[6]
[6] Exhibit 3, 3-7.
(a)On 16 September 2021, leaders of Australia, the United Kingdom (UK) and the United States of America (US) entered into an enhanced trilateral security partnership called ‘AUKUS’ the first major initiative of which was to support Australia’s acquisition of conventionally armed nuclear-powered submarines (SSN).
(b)A taskforce was established to work closely with the ‘AUKUS Partners’[7] over an 18-month consultation period to identify the optimal pathway for Australia’s acquisition of at least eight SSNs (Optimal Pathway). The consultation process for developing the optimal pathway involved dealing with sensitive and highly classified information including in relation to the nuclear submarine programs of the UK and the US.
(c)On 22 November 2021, the Agreement between the governments of Australia, the UK and US for the Exchange of Naval Nuclear Propulsion Information (ENNPIA) was signed by the parties. It created a legally binding framework for the transfer and use of information related to naval nuclear propulsion among the governments of Australia, the UK and the US and it included strict confidentiality provisions for how naval nuclear propulsion information was to be exchanged between the parties.
(d)On 14 March 2023, leaders of Australia, the UK and the US announced the Optimal Pathway. The phased Pathway proposed to deliver a sovereign Australian SSN capability as soon as the early 2030s.
(e)Submarines are a fundamental part of Australia’s current and future Defence capability. AUKUS and Australia’s alliance with the US and partnership with the UK are central to Australia’s security and defence strategy.
(f)There are very significant sensitivities associated with the SSN program. It involves Australia obtaining naval defence capabilities from the UK and the US under a partnership agreement that all partners recognise in their strategic national security and defence interests. Understandably, the UK and US have very high expectations that Australia carefully manages the confidentiality of sensitive naval defence capability information.
(g)Without appropriate protections for classified and sensitive information, it is possible that the program will be compromised, with detrimental effects both for Australia’s defence capability and international relationships with the UK and US. Maintaining the good health of that partnership is a critical element of Australia’s national security and defence interests.
(h)The current early phase of the Optimal Pathway is particularly sensitive because Australia is seeking to lay the foundations for the policy, legal, financial and planning elements of the pathway necessary for Australia to be able to safely and responsibly own, operate, maintain and regulate sovereign nuclear-powered submarines. This requires continued demonstration of our commitment to information protection and the principles of strong nuclear stewardship.
(i)Australia has excellent relationships with the UK and US built on a lengthy history of defence cooperation; however, it is an enormous step for Australia to acquire SSN capability from two nations with highly established nuclear submarine programs. The sustainability and success of AUKUS will depend on the cooperation and confidence of partners as to Australia’s readiness and capacity for nuclear stewardship.
(j)As a trilateral endeavour in which Australia will be entrusted with the most sensitive UK and US technology and expertise, AUKUS Partners expect they will be consulted in relation to Australia’s position on matters that will impact its stewardship of SSN technology and about the publication of this information.
7 Reference to the ‘AUKUS Partners’ in these reasons refers to all three parties to the trilateral enhanced security partnership, or to Australia’s partners the UK and the US, depending on its context.
With respect to Documents 2, 4, and 6, Ms Kelton deposed:[8]
(a)Documents 2 and 6 were prepared by the Safeguards and Non-Proliferation Branch of the Taskforce within the Department of Defence and were prepared at an early stage of AUKUS by junior officers, which were ultimately abandoned. They largely reflect early views of the officers involved and not the sanctioned view of the Taskforce. The documents contain various errors reflecting the inexperience of the officer who had drafted the documents. Importantly, the documents were not sanctioned from a policy perspective and misrepresent certain issues that remain under active consideration and consultation. Release of these documents would be prejudicial to Australia’s ongoing discussions with the International Atomic Energy Agency.
(b)Document 4 was written by officers with technical, rather than policy, expertise and was intended to cover the technical issues associated with radioactive waste management. To the extent the paper also covers policy issues, it represents the views of the author only and does not represent the settled policy position of the Taskforce.
(c)Ms Kelton has two main concerns with the disclosure of the information in the documents in issue from the perspective of damaging Australia’s relationship with the UK and US. The first relates to the extent that the documents contain information provided confidentially by the UK and US. Her second concern is that disclosure of early draft analysis that mischaracterises Australia’s position could damage the confidence of the UK and US in Australia’s readiness as stewards of nuclear-powered submarines. She expects that if the documents in issue are disclosed there will be significant media and public commentary on the views expressed in the documents, including within the UK and US.
(d)A significant amount of the information exchanged as part of the AUKUS arrangements has been communicated and developed on an express understanding of confidence. The documents in issue contain a mixture of information provided by AUKUS partners and information sourced from research and other information.
[8] Exhibit 3, 8-13.
Oral and affidavit evidence was given by Timothy Julian Fry who is the Assistant Director General Regulatory Compliance and Assurance at the Australian Submarine Agency. Prior to this role, from February 2022 until July 2023, he held the position of Assistant Secretary Stewardship Systems in the Taskforce. His affidavit addresses Document 5 which was prepared under his supervision whilst Assistant Secretary Stewardship Systems of the Taskforce.
Mr Fry deposed in his affidavit:[9]
(a)Document 5 is dated October 2022 and was prepared by the then-Stewardship Systems Branch with support from the then-Domestic Nuclear Policy Section of the Taskforce for the purpose of developing a proposal for regulating the SSN enterprise for consultation with other Australian government agencies and the AUKUS Partners, for eventual Government endorsement.
(b)Document 5 served as a vehicle to capture the development of a consensus among Australian government agencies and the UK and US on Australia’s proposed approach to regulating nuclear safety aspects of the future submarine enterprise. The UK and US input was provided to Australia confidentially and on the understanding it would remain in confidence.
(c)It could be damaging to AUKUS relationships for any information provided in confidence to be released.
(d)Document 5 discusses other matters which are highly confidential and sensitive to the AUKUS Partners. There is a strong expectation that this information not be publicly shared by Australia, without appropriate consultation and agreement. The premature disclosure of this information could be damaging to our relationships with the UK and US, who would expect to be consulted and have input with respect to major proposals of this nature, given the potential impacts our decisions may have on UK and US interests, including access to sensitive UK and US information provided to Australia.
[9] Exhibit 4, 5-8.
The applicant in his witness statement provided material in the public domain relevant to the proceedings including an Australian Nuclear Science and Technology Organisation presentation titled ‘Building a social licence for nuclear’, the AUKUS treaty text, information from the International Atomic Energy Agency (IAEA) and Australian government papers and statements regarding the legal and regulatory framework to support naval nuclear power safety.[10]
CONSIDERATION
[10] Exhibit 5.
Document 2
Document 2 is a paper dated March 2023 on nuclear safeguards and non-proliferation. The respondent claims it is fully exempt from disclosure under ss 33(a)(i), (ii) and (iii) and 33(b) of the FOI Act.
The applicant contends that nuclear non-proliferation is a topic well understood in both the international and domestic domains.[11] He relies upon publicly available information from the IAEA and statements from the Australian government with respect to Australia’s non-proliferation credentials. He says that information of this nature would not intersect with the specific topics of the ENNPIA treaty and surmises that not all of the information in Document 2 would be exempt.
[11] ASOFIC, 8-9.
The respondent accepts that the information relied upon by the applicant is publicly available. Further, it is apparent from the affidavit of Ms Kelton that the March 2023 date of the paper in dispute coincides with the date of the trilateral announcement by the leaders of Australia, the UK and the US of what has been referred to as the Optimal Pathway. The public report that accompanied that announcement included the AUKUS Partners’ commitment to nuclear non-proliferation, safety and security and radioactive waste management. Ms Kelton said that the preparation of that report involved a careful process of assessing what information could be made publicly available.[12]
[12] Exhibit 3, [26].
The public announcement in March 2023 followed an 18-month consultation period between the Taskforce and its UK and US counterparts. Ms Kelton deposed further with respect to that consultation as follows:[13]
Reflecting the close international collaboration involved in developing the Optimal Pathway, personnel from the Taskforce worked cooperatively with US and UK counterparts throughout the consultation period. Personnel from across the Australian Government, including the Department of the Prime Minister and Cabinet, the Department of Foreign Affairs and Trade, the Australian Nuclear Science and Technology Organisation and the Australian Safeguards and Non-Proliferation Office were also embedded in or consulted directly to the Taskforce to provide expertise.
The consultation process for developing the Optimal Pathway involved dealing with sensitive and highly classified information. This included, for example, sensitive and classified information about the nuclear submarine programs of the US and UK. Given the sensitive classified nature of the information involved, the consultation process was undertaken in strict confidence with trilateral partners, access to information tightly controlled.
[13] Exhibit 3, [17]-[18].
With respect to the sensitivity of the program to acquire nuclear-powered submarines, Ms Kelton deposed:[14]
There are very significant sensitivities associated with the SSN program. It involves Australia obtaining naval defence capabilities from the US and the UK under a partnership arrangement that all Partners recognise is in their strategic national security and defence interests. Understandably, the UK and US have very high expectations that Australia will very carefully manage the confidentiality of sensitive naval defence capability information. …
Given the sensitivities associated with such an important program, any information released to the public must be carefully assessed against implications for the broader program and to ensure the classified and sensitive information is protected. Without appropriate protections for classified and sensitive information, it is possible that the program will be compromised, with detrimental effects both for Australia’s Defence capability and international relationships with AUKUS partners. Maintaining that partnership in good health is a critical element of Australia’s national security and defence interests.
[14] Exhibit 3, [30]-[31].
The trilateral consultation included Australia’s commitment to its non-proliferation obligations. In this regard, Ms Kelton deposed:[15]
… trilateral leaders have committed since the outset that Australia’s acquisition of nuclear-powered submarines would be done in a way that meets the highest non-proliferation standard. Confidential discussions between trilateral partners and the International Atomic Energy Agency have been ongoing since the consultation period began.
[15] Exhibit 3, [40.2].
These discussions were led by the Australian Safeguards and Non-Proliferation Office which is responsible for the performance of Australia’s safeguards and non-proliferation obligations and for facilitating IAEA safeguards activities in Australia. As deposed to by Ms Kelton, these discussions were confidential as between the AUKUS Partners and with the IAEA:[16]
As likely one of the first non-nuclear weapon states to acquire this technology, confidential discussions on how best to meet the high non-proliferation standards to which trilateral partners have committed continue both with trilateral partners and with the IAEA. Consistent with established international practice for safeguards negotiations, AUKUS partners’ discussions with the IAEA during the consultation period, and Australia’s … negotiations with the IAEA are undertaken on a without prejudice and confidential basis. State specific safeguards measures … always remain confidential and are not available for distribution beyond the IAEA Secretariat.
[16] Exhibit 3, [44].
The respondent’s claim for exemption with respect to Document 2 must be considered in the context of the above evidence. I have had access to Document 2 and I consider that it contains information of a sensitive nature relating to safeguards and nuclear non-proliferation which the AUKUS Partners would expect to be kept confidential. A breach of this expectation of confidentiality as between the AUKUS Partners by the disclosure of sensitive information would result in a loss of trust between the AUKUS Partners which would be detrimental to their relationship and may cause the AUKUS Partners to be less forthcoming with respect to confidential information in the future. This loss of trust would cause damage to the security and defence of the Commonwealth because the maintenance of the relationship between the AUKUS Partners is critical to its security and defence.
I accept and give significant weight to the opinions expressed by Ms Kelton because of her relevant experience as first Assistant Secretary in the Taskforce:
(a)Ms Kelton deposed that the release of the documents, including Document 2, would be prejudicial to Australia’s ongoing discussions with the IAEA and AUKUS Partners.[17]
(b)Ms Kelton expressed her concern that the disclosure of the information in the documents, including Document 2, would be damaging to Australia’s relationship with the AUKUS Partners.[18]
(c)Ms Kelton expressed an opinion that the release of material in the documents, including Document 2, would be highly counterproductive to international relations with the AUKUS Partners.[19]
(d)Ms Kelton expressed concerns that aspects of the documents if disclosed will undermine domestic national security.[20]
[17] Exhibit 3, [64]-[67].
[18] Exhibit 3, [59].
[19] Exhibit 3, [60].
[20] Exhibit 3, [75]-[81].
Mr Fry also provided his opinion that it could be damaging to AUKUS relationships for any information provided in confidence to be released.[21]
[21] Exhibit 4, [38].
The consequences of disclosure of Document 2 would fall within the meaning of ‘damage’ in s 33(a) of the FOI Act. The FOI Guidelines at [5.28] indicate that damage for the purpose of s 33 is not confined to loss or damage in monetary terms and may also be intangible, such as inhibiting future negotiations between the Australian government and a foreign government, or the future flow of confidential information from a foreign government or agency.
A strong and effective nuclear non-proliferation regime, protecting against the spread of nuclear weapons, is critical to Australia’s national security. The sensitivity and confidentiality of the documents is not confined to technical information relating to the design or capabilities of nuclear-powered submarines. Issues relating to non-proliferation and the regulation of Australia’s nuclear powered submarine enterprise are matters of great significance for the AUKUS Partners and required collaboration involving the sharing of confidential information between the AUKUS Partners. Document 2, being a paper on nuclear safeguards and non-proliferation prepared by the Safeguards and Non-Proliferation Branch of the Taskforce, contains confidential information relating to non-proliferation obtained in the context of AUKUS that if disclosed would, or could reasonably be expected to, cause damage to the security of the Commonwealth. As previously stated, I accept Ms Kelton’s concerns that release of such confidential information will undermine national security. I conclude that Document 2 is an exempt document under s 33(a)(i) of the FOI Act.
Australia’s acquisition of nuclear-powered submarines is a fundamental part of Australia’s current and future defence capability. AUKUS and Australia’s alliance with the US and partnership with the UK are central to Australia’s defence strategy. The UK and US have very high expectations that Australia will very carefully manage the confidentiality of sensitive naval defence capability information. It is important for the defence of Australia to maintain an effective partnership with the AUKUS Partners. The release of confidential information, including in Document 2, would have a negative impact on Australia’s relationship with the AUKUS Partners and would consequently have a negative impact and cause damage to the defence of the Commonwealth. I conclude that Document 2 is an exempt document under s 33(a)(ii) of the FOI Act.
The release of confidential information relating to non-proliferation obtained in the context of AUKUS would also damage working relations between the AUKUS Partners and would damage the perception of Australia as a trusted recipient of confidential information. As previously stated, I accept the opinion of Ms Kelton that the release of the documents, including Document 2, would be prejudicial to Australia’s ongoing discussions and relationship with the IAEA and AUKUS Partners. Those Partners would not expect that confidential information provided by, or exchanged with, them would be released. I conclude that Document 2 is an exempt document under s 33(a)(iii) of the FOI Act.
Given my findings that Document 2 is exempt under ss 33(a)(i), (ii) and (iii) of the FOI Act, I do not need to consider the claim for exemption under s 33(b). However, it is apparent from my reading of Document 2 that it contains some information communicated in confidence by the US and UK governments or their authorities. To that extent, Document 2 would also be exempt from disclosure under s 33(b).
Documents 4, 5 and 6
Documents 4, 5 and 6 are dated September 2022, October 2022 and December 2021 respectively. These documents have been provided to the applicant in a redacted form. The respondent claims that the redacted material is exempt from disclosure under ss 33(a)(ii) and (iii) of the FOI Act which relate to the defence and international relations of the Commonwealth. In addition, some specified redactions are claimed to be exempt under ss 33(a)(i) and (b).
Much of my reasoning with respect to Document 2 can be applied to the redacted material in Documents 4, 5 and 6 because they also contain confidential and sensitive information which AUKUS Partners do not expect to be released. The consequence of a release of that information would be to damage the defence and international relations of the Commonwealth for the same reasons as set out above. Further, Document 6 contains information relating to non-proliferation so I will not repeat the evidence of Ms Kelton or my reasoning in relation to non-proliferation for the purposes of Document 2. For those reasons, my analysis of Documents 4, 5 and 6 will be much shorter but should be read together with my reasons in paragraphs 27-34 above.
The affidavit and oral evidence of Ms Kelton are directly relevant to Documents 4 and 6. Mr Fry’s evidence relates to Document 5.
Documents 4 and 6 were prepared at an early stage of the development of the relationship between the AUKUS Partners in September 2022 and December 2021 respectively. Document 4 was intended to cover the technical issues associated with radioactive waste management but also contains views relating to policy that represent the views of the author only and not a settled policy position of the Taskforce. Ms Kelton expresses a concern that the release of early draft analysis that mispresents or mischaracterises positions ultimately taken or that reveals internal deliberations would damage working relations between AUKUS Partners. Ms Kelton deposes in particular that disclosure of early draft analysis which mischaracterises Australia’s position could damage the confidence of the AUKUS Partners in Australia’s readiness as stewards of nuclear-powered submarines.[22] This issue is exacerbated by the significant media interest and public commentary that would be expected if the redacted material were to be disclosed.[23] Document 6 also contains draft positions as expressed by the Safeguards and Non-Proliferation Branch of the Taskforce in December 2021 which was only three months after the announcement of the AUKUS partnership. I accept that the release of such information as redacted in Documents 4 and 6 would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth which in the context of AUKUS would cause damage to the defence of the Commonwealth. I conclude that the redacted material in Documents 4 and 6 is exempt from disclosure under s 33(a)(ii) and (iii).
[22] Exhibit 3, [53].
[23] Exhibit 3, [56].
Document 5 is dated October 2022 and relates to regulation of Australia’s nuclear-powered submarine enterprise. Its content is the product of consultation with Australian Government agencies and the AUKUS Partners. The UK and US input was provided to Australia confidentially and on the understanding it would remain in confidence.[24] Mr Fry deposes that the regulation of Australia’s nuclear powered submarine enterprise is a matter of great significance for the UK and US Partners and required collaboration by all three countries in some of the most sensitive areas of military capability.[25] Further, there are issues in Document 5 which are deliberative in nature and still require further consideration. Mr Fry considers that the release of references to this issue risks harming relations with UK and US Partners.[26]
[24] Exhibit 4, [36].
[25] Exhibit 4, [40].
[26] Exhibit 4, [43].
I note that a significant part of Document 5 has been released to the applicant. Those parts of the document that reveal confidential information from the UK and US have been redacted. I have read Document 5 and consider that the extent of the redactions do not go beyond the information that is exempt under s 33(a). I conclude that the redacted material in Document 5 is exempt from disclosure under s 33(a)(ii) and (iii).
Given my findings that the redactions in Documents 4, 5 and 6 are exempt from disclosure under ss 33(a)(ii) and (iii), I have not considered the respondent’s further claims that parts of the redacted material are also exempt under s 33(a)(i) or s 33(b).
The Confidential Evidence of Ms Kelton and Mr Fry
Parts of the affidavits of Ms Kelton and Mr Fry were the subject of confidentiality orders because if disclosed they would have revealed information in issue in these proceedings. Whilst I have read this confidential evidence, I have not relied upon it for the purpose of expressing my findings in these reasons. In other words, I was able to reach my decision in this matter on the basis of the open material. I note that the confidential evidence provides further support for my findings that the documents are exempt but, given those findings, there is no need for the Tribunal to provide further confidential reasons.
The Contention of the Applicant as to an ‘Agreed Cone of Silence’
Before leaving consideration of the s 33 exemption, I will deal with a contention made by the applicant who said that the respondent’s international relations claim centres around the proposition that confidentiality was agreed and therefore harm to relations will occur if the agreement is breached. The applicant contends that it is not possible for the government to enter into a ‘cone of silence’ agreement which ousts the rights under the FOI Act.[27] I reject this contention because it is not supported by the correct interpretation of s 33.
[27] ASOFIC, 10-12.
In Secretary, Department of Prime Minister and Cabinet and Summers[28] Perry J said with respect to s 33 of the FOI Act:
[33] First, as the Full Court held in Commonwealth v Hittich (1994) 53 FCR 152 at 154, s 33(a)(iii) (then s 33(1)(a)(iii)) “does not provide any basis for a public interest criterion extending beyond the terms of the section. Either a document is within the section, in which case it is an exempt document, or it is not”…Equally, the strong personal interest which an applicant may have in obtaining access to the document in question is irrelevant.
[34] Secondly, the criteria prescribed by s 33(a) and (b) do not turn upon an assessment of the reasonableness of the Department’s claims. Rather, they turn upon cause and effect which can reasonably be anticipated…
[35] Thirdly, the Full Court observed in Secretary, Department of Foreign Affairs and Trade v Whittaker [2005] FCAFC 15; (2005) 143 FCR 15 (Whittaker) that the relevant time for considering damage that might be caused by disclosure for the purposes of s 33(a) is the time at which disclosure is to occur, in contrast to s 33(b). As the Court explained:
26. …That is to say, disclosure of a document at the time of its creation might cause damage, but if at the time when access is sought disclosure would not cause damage, the document will not be exempt under s 33(1)(a)(iii). On the other hand, if disclosure of a document, whenever the disclosure is made, would divulge any matter communicated in confidence, the document will be exempt under s 33(1)(b), even if that matter is no longer confidential at the time when access is sought.
[36] Finally, it is clear from s 58(2) that the Tribunal has no discretion to permit disclosure once satisfied that the ground of exemption in s 33(a) or (b) is established even though an agency may permit access in accordance with other laws and practices.
[28] [2019] AATA 5537 (‘Summers'), [33]-[36] (some citations omitted).
As stated by Perry J in Summers, the satisfaction of the criteria in s 33(a) simply turns upon cause and effect which can reasonably be anticipated. There is no public interest or other criterion extending beyond the terms of the section. If disclosure of the document would, or could reasonably be expected to, cause the requisite damage then the section will have been satisfied and the document will be exempt. The right relied upon by the applicant to access a document under the FOI Act does not apply to an exempt document. This is made clear by ss 11(1)(a) and 11A(4) of the FOI Act.
I have found that there is probative evidence from both Ms Kelton and Mr Fry that establishes the requisite cause and effect. This finding is primarily based upon the sensitive and confidential nature of the dealings between the AUKUS Partners relating to Australia’s acquisition of nuclear-powered submarines. Trust and collaboration between the AUKUS Partners is critical to the success of this enterprise. That trust includes an expectation that sensitive and confidential information in the documents would not be released. Consequently, the effect of releasing the documents would be damage to the Commonwealth.
DECISION
The decision of the Tribunal is to affirm the decision under review.
48. I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
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Associate
Dated: 12 July 2024
Date(s) of hearing: 29-30 April 2024 Applicant: Self-represented Counsel for the Respondent: Mr Justin Davidson Solicitors for the Respondent: Australian Government Solicitor
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