Patrick and Director-General, National Archives of Australia (Freedom of information)
[2023] AATA 676
•31 January 2023
Patrick and Director-General, National Archives of Australia (Freedom of information) [2023] AATA 676 (31 January 2023)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s):2021/5369
Re:Rex Patrick
APPLICANT
AndDirector-General, National Archives of Australia
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:31 January 2023
Place:Adelaide
The decision of the Director-General, National Archives of Australia, dated 5 August 2021 is affirmed.
.............[sgd]................
Catchwords
National Archives – request for access to Cabinet record relating to Timor Gap Negotiations – request refused under s 33(1)(a) of the National Archives Act 1983 – public interest certificate issued under s 36 of the Administrative Appeals Tribunal Act 1975 – the Cabinet record contains information the disclosure of which could reasonably be expected to cause damage to the international relations of the Commonwealth – the Cabinet record contains advice that would be privileged from production on the ground of legal professional privilege – the disclosure of the Cabinet record would be contrary to the public interest – finding that the Cabinet record is an exempt record under s 33(1)(a) and s 33(2) – the decision of the Director-General is affirmed
Legislation
Archives Act 1983
Administrative Appeals Tribunal Act 1975
Cases
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180
Arnold v Queensland (1987) 73 ALR 607
Fernandes v National Archives [2014] AATA 180
Maher and Attorney-General’s Department (1985) 7 ALD 731
R v Collaery (No 7) (2020) ACTSC 165Zarro v Australian Securities Commission (1992) 36 FCR 40
REASONS FOR DECISION
Deputy President Britten-Jones
31 January 2023
This application for review arises from the applicant’s request under the Archives Act 1983[1] for access to a record of a Cabinet submission and minute dated 2000 relating to “Timor Gap Negotiations” (the Cabinet record).
[1] All references to legislation are to the Archives Act 1983 unless otherwise stated
Section 31 of the Archives Act operates to generally require Commonwealth records that are in the ‘open access period’ to be made publicly available. However, a Commonwealth record will be exempt from disclosure under s 33(1)(a) if it contains certain information or matter including:
information or matter the disclosure of which under this Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth.
A Commonwealth record may also be exempt from disclosure under s 33(2) on the grounds of legal professional privilege if its disclosure would also be contrary to the public interest. Attached to the Cabinet submission was a Memorandum of Advice (Attachment D) which was provided by the Attorney-General’s Department.
The Director-General refused access to the majority of the Cabinet record under s 33(1)(a). The applicant has been given access to part of the Cabinet record with redactions. The applicant has applied to the Tribunal for review of the refusal decision. Section 43 of the Archives Act gives the Tribunal jurisdiction to review the decision of the Director-General. The Director-General has the onus under s 51(a) of satisfying the Tribunal that the decision of the Director-General ‘was justified or that the Tribunal should give a decision adverse to the Applicant’ on the balance of probabilities.
In this application, the Director-General contends that the Cabinet record is exempt from disclosure because its disclosure could reasonably be expected to cause damage to the international relations of the Commonwealth. The Director-General also contends that part of the Cabinet record is privileged and exempt under s 33(2).
The Cabinet record
The Cabinet record with redactions has been disclosed. It is attached as annexure 1.7 to the affidavit of Philip Dorling, the senior adviser to the applicant. The Cabinet record is marked ‘CABINET – IN – CONFIDENCE’ and comprises a Cabinet submission dated 29 August 2000 and a Cabinet minute dated 4 September 2000. The submission is jointly submitted by the Minister for Foreign Affairs, the Treasurer, the Minister for Industry, Science and Resources and the Attorney-General.
The purpose of the Cabinet submission is:
To seek Cabinet authorisation to commence negotiations with the United Nations Transitional Administration in East Timor (UNTAET) for a treaty regarding the seabed in the Timor Gap to replace the current treaty when it expires on East Timor’s independence.
The Cabinet submission recommends that the Cabinet agree that negotiations commence in October 2000 with a view to finalising by May 2001 a text to govern the exploration and exploitation of petroleum resources in the Timor Gap to replace the existing Timor Gap Treaty. The recommended approach and the negotiating options are redacted.
The Cabinet submission includes sections entitled background, issues and political sensitivity/possible criticism, the unredacted parts of which I set out below:
BACKGROUND
1.The Timor Gap is an area in the Timor Sea between Australia and East Timor that contains proven petroleum resources. In the absence of agreement on a seabed boundary, Australia and Indonesia signed the Timor Gap Treaty (TGT) in 1989, to establish a regime for the exploration and development of the petroleum resources in this area. The TGT entered into force in 1991. It divided the agreed Zone of Cooperation (ZOC) into three Areas: one under Indonesian control (Area C), one under Australian control (Area B) and one under joint control (Area A) (See map at Attachment B). The petroleum resources proved to date are all in Area A.
2.The TGT created a workable framework for petroleum exploration and exploitation under the joint control, and for the joint benefit, of Australia and Indonesia. Through the Ministerial Council and the Joint Authority established by the TGT for Area A, production sharing contracts were entered into with petroleum companies, with a fixed share of production going to the Joint Authority, for distribution to governments on a 50:50 basis. In addition, each Treaty partner applies its own income tax regime to half of the net company profits from Area A.
3.With the separation of East Timor from Indonesia on 25 October 1999, Indonesia has acknowledged that it does not have sovereign rights in the Timor Gap area. While no independent East Timorese state yet exists, the UN Security Council established the United Nations Transitional Administration in East Timor (UNTAET) to administer East Timor until its independence. On 10 February 2000, UNTAET entered into an agreement with Australia confirming, with retrospective effect from 25 October 1999, the continued operation of the terms of the TGT. This agreement UNTAET will expire on the date of East Timor’s independence, which is currently expected towards the end of 2001.
4.To avoid a legal vacuum and provide commercial certainty for operators in the Timor Gap, negotiations with UNTAET and East Timorese representatives are needed to reach agreement on a replacement treaty for the Timor Gap, which will enter into force at East Timor’s independence. Several rounds of negotiations are likely to be required. After agreement by officials, a further six months should be allowed for Australian domestic treaty processes to be met prior to entry into force.
5.Investors will be affected by uncertainties about the legal arrangements that will apply in the Timor Gap after independence. To maintain the large-scale investments required for projects that are expected to go into production after 2003, operators require assurances on the rules that will apply. Without a smooth transition of the legal arrangements for the Timor Gap, there is a risk that investor confidence will fall away and commercial activity cease, with the result that neither Australia nor East Timor will draw revenue from the area.
…
ISSUES
7.Australia has consistently argued that under international law its seabed rights in the Timor Gap extend from the Australian coastline through the full extent of the natural prolongation of the Australian continental shelf. On this basis, Australia claims a continental shelf which extends beyond 200 nautical miles (M) up to the deepest point of the Timor Trough; with East Timor’s physical continental shelf restricted to approximately 40 M from its coast. UNTAET and the East Timorese argue, however, that an appropriate line of delimitation would be the median line between the coastlines of Australia and East Timor (presently the southern boundary of Area A),
…
Political sensitivity/possible criticism
29.Public perceptions of the 1989 TGT in Australia have been mixed. While there has been recognition from business and some academic quarters that the Government moved appropriately to secure Australia’s interests, the Treaty also attracts ongoing criticism on several fronts: that it was the vehicle for de jure recognition of Indonesian sovereignty over East Timor; that it was illegal; and that it failed to deliver benefits to East Timor. All these arguments are contestable but they will undoubtedly re-surface in public discussion of new treaty arrangements.
There are attachments to the Cabinet submission including Attachment D which is wholly redacted on the ground of legal professional privilege
The Cabinet minute records the agreement that negotiations would commence in October 2000 with a view to finalising by May 2001. The agreed conduct of negotiations is redacted.
Evidence as to historical events
The Director-General filed an open affidavit and a confidential affidavit from each of Dr Greg French and Mr Justin Hayhurst. The confidential affidavits are the subject of a certificate issued by the Attorney-General under s 36 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
In addition to an affidavit from himself, the applicant has filed affidavits from Professor Clinton Fernandes, Dr Philip Dorling, former President Xanana Gusmao, Professor Michael Leach and Professor Andrew Leslie Serdy. These deponents were not required for cross examination. Professor Serdy supplemented his written evidence with oral evidence given by telephone at the hearing but he was not cross examined. The applicant also put into evidence various affidavits from the ACT criminal proceedings against Bernard Collaery which included an affidavit from the current President of Timor-Leste, Jose Ramos-Horta.
Dr French deposed in his open affidavit to the maritime arrangements in the Timor Sea with respect to Indonesia and Timor-Leste:
Arrangements with Indonesia
12.In 1971 and 1972, through two agreements, Australia and Indonesia permanently delimited a large segment of their seabed boundaries to the north of Australia. These were the 1971 Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries and the 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, supplementary to the Agreement of 18 May 1971 (1972 Agreement). The 1972 Agreement left a gap for the then Portuguese colony of East Timor, which became known as the "Timor Gap".
13.In 1978, Australia and Indonesia commenced negotiations on a permanent maritime boundary in the Timor Gap. However, agreement was not possible.
14.Pending agreement on delimitation of the continental shelf, Article 83 of UNCLOS requires countries to make every effort to enter into provisional arrangements of a practical nature. As no agreement could be reached between Australia and Indonesia on a maritime boundary, it was eventually agreed to enter into a provisional arrangement. The 1989 Australia-Indonesia Timor Gap Treaty provided for development of the resources of the Timor Gap jointly.
15.The 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 (the Perth Treaty) delimited Australia and Indonesia's outstanding maritime boundaries not previously delimited by the 1971 and 1972 Agreements (all of the exclusive economic zone and the seabed west of the 1972 seabed boundary). The Perth Treaty has not yet entered into force.
Arrangements with Timor-Leste
16.Following Timor-Leste's referendum on independence from Indonesia, the United Nations Transitional Administration for East Timor (UNTAET) was established on 25 October 1999 to administer Timor-Leste until its independence. On 10 February 2000, UNTAET agreed with Australia to continue the Timor Gap Treaty until Timor‑Leste's independence, when that treaty would expire. Negotiations commenced on a replacement treaty.
17.Timor-Leste gained independence in 2002. Australia and Timor-Leste did not establish permanent maritime boundaries but entered into three bilateral treaties (the Timor Sea treaties) establishing provisional maritime arrangements in the Timor Sea.
18.In 2002, Australia and Timor-Leste agreed the Timor Sea Treaty between the Government of East Timor and the Government of Australia (the TST). The TST established the Joint Petroleum Development Area (the JPDA). Under the TST, Australia and Timor-Leste were to jointly control the exploration and exploitation of oil and gas resources in the JPDA, with the title to petroleum produced shared 90% (Timor-Leste) and 10% (Australia).
19. Australia and Timor-Leste subsequently entered into two more treaties.
20.The first was the 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 (International Unitisation Agreement or IUA). The IUA created the governance framework for the Greater Sunrise fields, which were partly in the JPDA and partly in an area of exclusive Australian jurisdiction. The IUA apportioned the Greater Sunrise fields between Australia (79.9%) and the JPDA (20.1%). Timor-Leste had title to 90% of petroleum within the JPDA, and Australia 10%, as set out in the TST.
21.The second was the 2006 Treaty between the Government of Australia and the Government of 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 providing for an equal (50/50) 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 also extended the duration of the TST to the same duration of the CMATS Treaty (that is, a change from 30 to 50 years). However, either party was permitted to terminate the CMATS Treaty in certain circumstances, including if a development plan for the Greater Sunrise fields was not approved within six years of the CMATS Treaty's entry into force (i.e. by 23 February 2013). Timor-Leste has since terminated the CMATS Treaty (discussed further below).
Developments since 2013
22.On 23 April 2013, Timor-Leste initiated arbitration under the TST against Australia on the validity of the CMATS Treaty and the duration of the TST.
23.On 17 December 2013, Timor-Leste launched an action in the International Court of Justice (the ICJ) for the return of materials removed by ASIO from the offices of Timor-Leste's legal representative on 3 December 2013.
24.In September 2014, the arbitration and ICJ case were suspended for consultations seeking to resolve differences between Australia and Timor‑Leste. The consultations were not successful.
25.On 11 June 2015: the ICJ discontinued the case at Timor-Leste's request following Australia's return of the materials on 12 May 2015.
26.On 24 September 2015, Timor-Leste launched a new arbitration disputing Australia's exclusive jurisdiction over the pipeline from the Bayu-Undan gas field to Darwin.
27.On 11 April 2016, Timor-Leste initiated compulsory conciliation under Part XV of UNCLOS with the aim of concluding an agreement on permanent maritime boundaries with Australia.
28.The Conciliation Commission established under UNCLOS held its first substantive meeting in October 2016. As part of an integrated package of confidence-building measures to facilitate the conciliation process Timor‑Leste agreed to deliver to Australia written notification of its intention to terminate the CMATS Treaty and negotiate permanent maritime boundaries with Australia.
29.On 10 January 2017, Timor-Leste provided notification to terminate the CMATS Treaty, meaning that the Treaty ceased to be in force on 10 April 2017. On 24 January 2017, Australia, Timor-Leste and the Conciliation Commission issued a trilateral statement advising that, as part of the confidence-building measures, Timor-Leste had withdrawn the two arbitrations it had initiated against Australia.
30.Australia and Timor-Leste met with the Conciliation Commission on numerous occasions throughout 2017. At the August/September 2017 meetings, Australia and Timor-Leste reached a comprehensive package agreement that included a maritime boundary and addressed the legal status and development of the Greater Sunrise gas field.
31.At the October 2017 meetings, Australia and Timor-Leste reached agreement on the text of a treaty delimiting the maritime boundary and addressing the legal status of the Greater Sunrise gas field.
32.Australia and Timor-Leste signed the Treaty Establishing their Maritime Boundaries in the Timor Sea (the Maritime Boundary Treaty) on 6 March 2018. The Australian Parliament passed legislation to implement the Maritime Boundary Treaty in July 2019, and the treaty was brought into force by an exchange of notes between the countries' Prime Ministers in Dili on 30 August 2019, at which time the TST and IUA ceased to be in force.
Dr French confirmed in cross examination[2] that the maritime boundary between Australia and Indonesia since the 1971 and 1972 agreements has been located to the north of the median line between the two countries. As at 2000, Australia had consistently argued that under international law its seabed rights in the Timor Gap extend from the Australian coastline through the full extent of the natural prolongation of the Australian continental shelf. However, the maritime boundary between Australia and Timor-Leste agreed in 2017 (and the subject of the Maritime Boundary Treaty in 2018) is closer to Australia when compared to the maritime boundary between Australia and Indonesia. Professor Serdy described this boundary as “far more favourable to Timor-Leste” in his affidavit.
[2] Transcript p 36
Certain historical events in the relationship between Australia and Timor-Leste were deposed to in the affidavits from the applicant, Professor Fernandes and Mr Dorling.
Mr Dorling deposed to the meetings in Dili between representatives of Australia and East Timor both before and after the Cabinet decision to enter into negotiations in relation to the Timor Gap. Mr Dorling referred to reports that the current President, Jose Ramos-Horta, and other East Timorese leaders expressed concern that Australian intelligence agencies were spying on them by using telecommunication services supplied by Telstra to monitor East Timorese leaders in or around 2000 and 2001.
The applicant deposed in his affidavit to further allegations of Australia spying on the Timor-Leste negotiating team in the period leading up to the 2006 Treaty between Australia and Timor-Leste. The applicant concluded that “the fact of the spying is a matter that has caused significant damage to the relationship between Australia and Timor-Leste.”
Xanana Gusmao, the first elected President and former Prime Minister of Timor-Leste, deposed to “Reported Facts” of a covert surveillance operation in Timor-Leste carried out by an Australian intelligence agency in 2004. Mr Gusmao deposes generally to the benefits of openness and full disclosure to the relationship between Australia and Timor-Leste. More specifically, Mr Gusmao believes that full disclosure of the Cabinet record “relating to the Reported Facts” will strengthen the ties between Australia and Timor-Leste.
Professor Fernandes deposed to historical events involving East Timor prior to its independence in 2002. He referred to the Australian government’s withdrawal from the maritime boundary jurisdiction of the International Court of Justice and the International Tribunal on the Law of the Sea. He referred to the Australian Security Intelligence Organisation seizing documents in 2013 that were later the subject of a case brought by Timor-Leste against Australia in the International Court of Justice.
Professor Fernandes concludes that these historical events reflect poorly on Australia “behaving as an imperial power – the richest country in Southeast Asia stealing from the poorest country in Southeast Asia.”
Contentions
The applicant contends that no damage to international relations can come from the release of the Cabinet record because:
(a)the document is from 22 years ago and reflects the negotiating position of the Government of the time;
(b)the relationship with Timor-Leste due to historical events is so bad that it could not get any worse. The applicant articulated this contention by saying that the plate is already broken and it makes no difference if you pick up another piece and smash it again;[3]
(c)the release of the Cabinet record, as an act of openness and transparency, will actually benefit international relations. The applicant contended that this view as expressed by eminent Timorese leaders such as Xanana Gusmao and Jose Ramos-Horta should be given determinative weight.
[3] Transcript p 14 line 33 of the applicant’s opening address
The phrase ‘could reasonably be expected to cause damage’
The first issue in contention is whether the Cabinet record contains information or matter the disclosure of which could reasonably be expected to cause damage to international relations.
The phrase ‘could reasonably be expected to’ was considered by the Full Court of the Federal Court in Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 at 190 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 Gibbs CJ and Mason J.
Sheppard J agreed with Bowen CJ and Beaumont J in Attorney-General’s Department v Cockcroft but gave separate reasons in which he said at 196:
In my opinion he will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply. But, stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.
Wilcox J said in Arnold v Queensland (1987) 73 ALR 607 at 616 that the words ‘could reasonably be expected’ do not require the demonstration of a probability of damage.
President Kerr in Fernandes v National Archives [2014] AATA 180 was guided by Sheppard J’s reasons in Cockcroft and said that:
the proper point of the spectrum is somewhere between risk and balance of probabilities. But in the end … the real test is not to be found in any gloss of judicial language, but rather in the language of the Archives Act itself understood in the context of the interests it is protecting.
President Davies in Maher and Attorney-General’s Department (1985) 7 ALD 731 said at 742 that a mere possibility of damage would not be sufficient and further:
The phrase "damage to international relations of the Commonwealth" comprehends intangible damage to Australia's reputation though such damage may be difficult to assess. International relations have never been matters easy to define or to quantify. Regard must be had, inter alia, to the relationships between particular persons in one government and persons in another. Damage to personal relationships may cause considerable harm for a time at least.
I accept that it must be shown that the publication of a document claimed to be exempt could reasonably be expected to cause damage to the international relations of the Commonwealth. A mere allegation to that effect is not enough. There must be cause and effect which can reasonably be anticipated. But if it can reasonably be anticipated that disclosure of the document would lessen the confidence which another country would place on the Government of Australia, that is a sufficient ground for a finding that the disclosure of the document could reasonably be expected to damage international relations. Trust and confidence are intangible aspects of international relations.
Bearing the above authorities in mind, for the Cabinet record to be an exempt record, I must be satisfied that the disclosure of the Cabinet record could reasonably be expected to cause damage to the international relations of the Commonwealth.
Differing Opinions
In relation to the consequences if exempt material was released, Dr French deposed as follows:
[33] The exempt material in the Cabinet record relates to the negotiations which took place between Australia and UNTAET (on behalf of Timor-Leste) in 2000 and 2001 over the maritime arrangements in the Timor Sea that led to agreement in 2002 to the TST. I believe the release of the exempt material would lead to adverse consequences for Australia. In my view, for reasons I will outline in my confidential affidavit, there is a real risk that disclosure of the exempt material at this time could damage Australia’s international relations.
Mr Hayhurst in his open affidavit concurred with the views of Dr French for reasons set out in his confidential affidavit.
Professor Serdy disagrees with the opinions of Dr French and Mr Hayhurst. He is highly qualified to express an opinion and he is respected by Dr French.[4] He is the Professor of the Public International Law of the Sea at the University of Southampton in the United Kingdom. He was employed by the Department of Foreign Affairs and Trade from 1989 to 2005 and served twice in the Sea Law and ocean Policy section. He had a general awareness of the negotiations with UNTAET in 2000 but no direct involvement.
[4] Transcript p 71
Professor Serdy says that the release of the Cabinet record dating from 2000 will cause no damage to Australia’s international relations in 2023 and that those relations might even benefit from the release. Whilst it is true that Professor Serdy has not had access to the unredacted Cabinet record, it is apparent from those parts of the Cabinet record that have been disclosed that the redacted parts include the negotiating options and a recommendation as to how to conduct the negotiations about the maritime boundary in the Timor Gap. It is also relevant that the result of the negotiations is known, namely a sharing of the petroleum revenue 90% to Timor-Leste and 10% to Australia as agreed in the Timor Sea Treaty of 2002. The maritime boundary is now also settled by Australia and Timor-Leste signing the Treaty Establishing their Maritime Boundaries in the Timor Sea on 6 March 2018. It follows that Professor Serdy’s opinion has a legitimate factual foundation and should be given appropriate weight.
Professor Serdy deposes that the risk of harm to the relationship between Australia and Timor-Leste if the Cabinet record were disclosed is “minimal or non-existent” because of a combination of two things:
(a)First, the stage of the negotiations with UNTAET reached at the time of the creation of the record; and
(b)Second, the publicly known subsequent developments.
Professor Serdy notes that the ultimate position agreed in the negotiations between Australia and Timor-Leste relating to the Timor Gap was that the revenue generated by the development of petroleum resources in the relevant area would be split 90:10 in favour of Timor-Leste. He surmises that this ultimate position was one of three possible negotiating positions that were put forward by Cabinet in September 2000 as set out in the Cabinet record. He says:
[8] Whichever of the three possibilities it was, none of them, if revealed in 2022, would be in the least startling or perturbing to those in the Government of Timor-Leste responsible for relations with Australia, whose predecessors in or around 2001 will have inferred it anyway from the course that the subsequent negotiations actually took.
Professor Serdy concludes that “the continued secrecy” gives rise to a genuine risk of damage to Australia’s international relations as it creates the “unfortunate impression that, after all these years, Australia still has something to hide.” He believes that disclosure of the Cabinet record will benefit the relationship between the two countries.
The effect of Professor Serdy’s opinion is that, in light of the known circumstances with respect to the negotiations in 2000 and the subsequent events, nothing unexpected would be revealed if the Cabinet record were released. He believes that the release of the actual negotiating strategies of the Australian government could not cause any damage to international relations because Timor-Leste would have inferred what that strategy was in any event and because the result of those negotiations is known to all countries and more than 20 years have passed. Professor Serdy accepts that he cannot express a more fulsome opinion without being privy to Dr French’s reasons for taking the view he does.[5]
[5] Serdy affidavit at [9]
Xanana Gusmao expresses the opinion that disclosure of the Cabinet record will assist the bilateral relationship between Australia and Timor-Leste and that, conversely, continued secrecy can only serve to create a further sense of suspicion and impropriety between neighbouring nations. Dr French recognised that as an important leader, Mr Gusmao’s opinion should be given some weight. He said that he took his opinion into account when expressing his own opinion.
Under cross examination, Dr French agreed that the Timor Sea Treaty is no longer in operation, following the entry into the treaty on maritime boundaries with Timor-Leste in 2019. Dr French accepted the applicant’s contention that the information in the Cabinet record is 20 years old and relates to treaties and agreements that are no longer in operation.[6] Dr French accepted that the withdrawal by Australia from the jurisdiction of the International Court of Justice to determine disputes over maritime boundaries in 2002 received a negative reaction from Timor-Leste. Dr French accepted that the Timor-Leste government believed that Australia covertly spied on Timor-Leste’s negotiating team in 2004[7] and that this had a negative impact on the relationship between the two countries. Dr French said that the negative reaction from Timor-Leste was a factor to be taken into account by him when expressing his opinion about whether the release of the Cabinet record would damage Australia’s international relations.[8] Dr French also took into account the views of Mr Gusmao[9] and President Ramos-Horta[10] that full disclosure and less secrecy would benefit the relationship between the two countries. Dr French accepted that Timor-Leste viewed negatively the actions of Australia in 2013 when documents were seized by ASIO from the offices of Timor-Leste’s legal representative. Having made these appropriate concessions and given weight to the opinions of the applicant’s witnesses, Dr French nevertheless maintained his opinion that the Cabinet record should not be disclosed because it could reasonably be expected to cause damage to Australia’s international relations.
[6] Transcript p 29 line 24
[7] Transcript p 51 line 16
[8] Transcript p 52 lines 2 to 5 and lines 27 to 30
[9] Transcript p 55
[10] Transcript p 59 - 60
Under cross examination, Mr Hayhurst deposed to the very complicated history between Australia and Timor-Leste. He accepted that Timor-Leste viewed that history in a negative light but said that the current relations between the two countries were very strong and forward looking. Mr Hayhurst said that he had considered the views of Mr Gusmao and President Ramos-Horta when giving his opinion as to damage to international relations.
At times during the cross examination of Dr French and Mr Hayhurst, they indicated that they could not fully answer the question during the open session. To provide procedural fairness to the applicant in the circumstances of the s 36 certificate from the Attorney-General, the applicant provided a series of questions to be put to the Director-General’s witnesses during the closed session. That is what happened and I reminded counsel and the witnesses during the closed session that the purpose of the closed session was to only receive evidence of a nature covered by the s 36 certificate and no more. If there was additional evidence given during the closed session which was not covered by the certificate then I indicated that a further open session would need to be convened, but there was no need to do so. I have taken into account the answers given by Dr French and Mr Hayhurst in the closed session to the questions drafted by the applicant.
I am unable to accept the opinions expressed by the applicant’s witnesses. I do not doubt the expertise of Professor Serdy or Professor Fernandes but I prefer the expert testimony of Dr French and Mr Hayhurst who have current high level experience with the Department of Foreign Affairs and Trade. In this regard I would adopt the approach taken by Mossop J in R v Collaery (No 7) (2020) ACTSC 165 with respect to witnesses called by the Attorney-General. His Honour said:
[68] Notwithstanding the submissions of the defendant to the contrary, I do consider that the evidence of witnesses called by the Attorney-General who are currently engaged, or have been very recently engaged in national security and international relations, should be given some additional weight because of the currency and immediacy of their experience. That is not on the basis of any presumption but is instead because I consider that the currency and immediacy of their experience is relevant to the probative value of their evidence. I recognise that there is a risk that witnesses in such a position will “toe the party line” having regard to the position adopted by the government in the proceedings and that their level of anxiety concerning questions of disclosure may be influenced by the immediacy of their responsibilities. I have assessed the evidence of the witnesses called by the Attorney-General with that in mind. Each of them impressed me as fairly and earnestly calibrating their evidence in relation to the value of the NCND principle and the risks of prejudice that would arise from disclosure appropriately in the circumstances.
The effect of the applicant’s submission is that irrespective of what is contained in the Cabinet record there could be no damage to international relations from its disclosure because:
(a)the relationship between Australia and Timor-Leste is so bad it could not get any worse (the broken plate argument);
(b)any negotiation strategies or legal advice have been rendered uncontroversial because they have been subsumed into finalised agreements and treaties;
(c)the passage of time; and
(d)Australia’s international relations would actually improve if there was full disclosure of the Cabinet record.
I disagree that no damage could flow from disclosure because the relationship between Australia and Timor-Leste (due to historical events) is broken and is beyond repair. Mr Hayhurst accepted that the history between the two countries was complicated and often viewed negatively by Timor-Leste but he said that the current relationship between the two countries was forward looking and that there were positive aspects to that relationship. In particular, he referred to a recent visit to Australia by the Foreign Minister of Timor-Leste and a virtual summit between the Prime Ministers of the two countries. The Australian Government has provided more than one million Covid-19 vaccines and assisted in response to a Dengue fever outbreak in Timor-Leste. I do not accept that the relationship is irretrievably damaged; to the contrary, I accept the evidence of Mr Hayhurst that there are positive aspects to the relationship and that the countries are cooperating with each other in many constructive ways.
I disagree with the applicant’s contention that no damage could flow from disclosure of the Cabinet record because the negotiations were finalised upon entry into subsequent treaties and because of the effluxion of time. The conclusion of the negotiations and the effluxion of time can be said at a general level to diminish the likely effect of disclosure of the Cabinet record. However, those factors are not determinative. The negotiations at the time were between high level government representatives and were very sensitive and confidential. Negotiations between nation states as to maritime boundaries and the sharing of maritime resources are inherently sensitive and immensely important to the negotiating countries and their neighbours.
The Timor Gap Treaty signed by Australia and Indonesia in 1989 is a relevant example of an agreement between nations as to maritime boundaries and the exploration, development and exploitation of petroleum resources in the area of the sea between the two countries. The unredacted parts of the Cabinet record recorded the political sensitivities and possible criticism that arose from the entry into that treaty and which remained relevant eleven years later in 2000. The Cabinet record at paragraph 29 noted that the Timor Gap Treaty attracted ongoing criticism on the basis of contestable arguments that “will undoubtedly re-surface in public discussions of new treaty arrangements.” This example illustrates how sensitivities can remain and re-surface many years after the conclusion of a treaty and bi-lateral agreement being reached.
Whilst historical events are relevant as context, it is important to focus on the present when determining whether release of the Cabinet record could reasonably be expected to cause the requisite damage. The opinions of Dr French and Mr Hayhurst were appropriately based on the effect of disclosure of the Cabinet record at the current time. They said that for the reasons expressed in their confidential affidavits there is a real risk that disclosure ‘at this time’ could damage Australia’s international relations.
I disagree with the submission that Australia’s international relations would actually be improved if Australia acted in a spirit of openness and transparency by disclosing the Cabinet record. I have taken into account the views expressed by Mr Gusmao and President Jose Ramos-Horta but am unable to agree with them. Whilst transparency and openness between countries is at a general level potentially positive in terms of improving relations, I do not consider that this would extend to a country divulging its confidential and sensitive negotiating strategy recorded in official documentation at the highest level of government.
Consideration of the ultimate issue under section 33(1)(a)
Having rejected the opinions expressed by the witnesses for the applicant, I turn now to the open evidence to determine whether it is sufficient to support a finding under s 33(1)(a). I remind myself that the phrase ‘could reasonably be expected to cause damage’ does not require the demonstration of a probability of damage[11] or that disclosure will in fact cause damage.[12] However, s 51 of the Archives Act makes it clear the onus of showing that the decision of the Director-General is justified rests on the respondent.
[11] Arnold v Queensland (1987) 73 ALR 607 at 616
[12] Attorney-General v Cockcroft (1986) 10 FCR 180 at 196
I believe it is appropriate to first consider the open evidence to determine whether the disclosure of the redacted parts of the Cabinet record could reasonably be expected to cause damage to Australia’s international relations. The open evidence includes the open affidavits of Dr French and Mr Hayhurst and their oral evidence given under cross examination, together with the affidavit evidence from the applicant and his witnesses.
Mr Hayhurst gave oral evidence under cross examination as to whether the disclosure of the Cabinet record could cause damage to Australia’s international relations. He said:[13]
My judgement is there could be further damage. Our relations with Timor are not static, they don’t stop at the time of these events in 2006, 2004, whenever – nor, at the time of independence. And at the moment we are working very closely with the Government of Timor on a range of critical bilateral and sub-regional issues and so I’ve tried my best to make a judgement at that time. Australia has had very complex relations with several countries that at various points arguably have reached a low point – Japan, Indonesia. Several. We have very complex and sensitive relationships with our neighbours, Papua New Guinea, Indonesia, Timor, Solomon Islands. None of these things are straightforward and the judgements that I am making today, 22 years after this document was issued, is about Australia’s relations and interest and position and the strategic environment in which that relationship occurs in the present day. And while it’s true to say that there is anger displayed and strong disapproval and negative views, as you have said, Senator Patrick, in this Memorial – if that’s the right term for the document – our relationship with Timor has continued to evolve since then, and it’s on the basis of that further evolution that I have come to the judgement – I do not agree – in fact, I categorically disagree, as I explain in my closed affidavit, that there is no further damage that can be caused by the release of the material.
[13] Transcript p 91
Australia’s negotiating strategy in 2000 and 2001 with respect to the maritime boundary between Australia and Timor-Leste was at the time a very sensitive and politically and economically important matter which was being considered at the highest levels of government through Cabinet on a confidential basis. It is difficult to imagine a more sensitive and potentially damaging topic with respect to Australia’s international relations than the topic of the location of a maritime boundary and related topics of sharing and exploiting petroleum resources between countries. Whilst the effluxion of time and subsequent events may have reduced that sensitivity, the potentially damaging sensitivities remain because those negotiating options have never been disclosed. More particularly, the inner workings and strategies of Cabinet dealing with these sensitive issues have never been disclosed. Those sensitivities, which existed at the time of the confidential negotiations, would undoubtedly resurface and could cause damage to international relations if the negotiating strategies and legal advice before Cabinet were disclosed. The complex and often troubling history between Australia and Timor-Leste provides a context which suggests that the likelihood of damage is greater than if the troubling history did not exist. If the relationship between Australia and Timor-Leste is precariously balanced then the disclosure of politically and economically sensitive information is more likely to have an impact.
Further, disclosure of a Cabinet record dealing with politically and economically sensitive information relating to international affairs could cause damage to Australia’s international relations because negotiating strategies are inherently sensitive and potentially damaging if released to the other negotiating party particularly in the context of maritime boundaries. This applies even where the negotiations have concluded. If Australia’s negotiating strategies were disclosed, then knowledge with respect to those strategies and Australia’s approach to negotiating in general could be used against Australia in a way that could cause damage to its ability to negotiate in international relations in the future. I do not accept the submission of the applicant that the negotiating strategies of a past government over 20 years ago (with numerous changes of government in between) could have any relevance today. The confidential affidavits and evidence of Dr French and Mr Hayhurst deal with this in more detail and support my view.
The potential for damage extends beyond Timor-Leste to Indonesia because the two countries are geographically proximate to each other and yet their respective maritime boundaries with Australia differ. There is an inherent sensitivity with respect to international relations with Indonesia in circumstances where the maritime boundary fixed between Australia and Timor-Leste is more favourable to Timor-Leste when compared to the maritime boundary between Australia and Indonesia. Disclosure of the negotiating positions of Australia vis a vis Timor-Leste would cause those inherent sensitivities to come to the surface with potentially damaging consequences for Australia’s international relationship with Indonesia. Professor Serdy refers in his affidavit to the risk that disclosure might prompt Indonesia to terminate its treaty with Australia and demand renegotiation of the 1972 treaty boundary. He argues that there is no risk because Indonesia took no such action upon the publication of the 2018 Maritime Boundary Treaty with Timor-Leste (which was very favourable to Timor-Leste), but I note that the 1997 Perth Treaty dealing in part with outstanding maritime boundaries between Australia and Indonesia has not yet entered into force which suggests that the issue of maritime boundaries between Australia and Indonesia are not completely resolved. In my view, there are reasonable grounds for concluding that disclosure of the Cabinet record could cause damage to the international relations of Australia with Indonesia. The confidential affidavits and evidence of Dr French and Mr Hayhurst deal with this in more detail and support my view.
It is difficult for me to go much further without disclosing the confidential evidence. However, I can say that the confidential evidence supports my finding that the disclosure of the redacted parts of the Cabinet record could reasonably be expected to cause damage to Australia’s international relations. In this case, I have been able to reach the requisite level of satisfaction without recourse to the confidential evidence. It is always preferable for the Tribunal to base its decision on the open evidence because in that way the reasons for the decision will be apparent to the applicant and those members of the public who choose to read the open reasons. Consequently, there is no need for me to provide any further reasons on a confidential basis.
The exemption from disclosure by operation of s 33(2) – legal professional privilege
The Director-General claims that part of the Cabinet record is exempt from disclosure under s 33(2) which provides:
(2) For the purposes of this Act, a Commonwealth record is an exempt record if it is of such a nature that:
(a) it would be privileged from production in legal proceedings on the ground of legal professional privilege; and
(b) disclosure of the record would be contrary to the public interest.
It is not necessary for me to consider an exemption under s 33(2) because I have already found that the Cabinet record is an exempt record under s 33(1)(a). Nevertheless, I will give short reasons for my view that the legal advice in the Cabinet record is subject to legal professional privilege and its disclosure would be contrary to the public interest. Having read the Memorandum of Advice I can say that there is a significant overlap between the information contained in the Attachment D and the information in the balance of the Cabinet record.
The applicant accepts[14] that the legal advice in the Cabinet record which was prepared by the Office of International Law within the Attorney-General’s Department would be privileged on the ground of legal professional privilege and that therefore s 33(2)(a) is satisfied. However, there remains a dispute as to whether disclosure of the advice in the Cabinet record would be contrary to the public interest under s 33(2)(b).
[14] Statement of Facts, Issues and Contentions of the applicant at [22]
The applicant says that there is significant interest from the public in the Timor Gap negotiations. He refers to books on the topic by Kim McGrath and Bernard Collaery and to the Friends of Timor-Leste Association in South Australia who have expressed interest. However, the question I must determine is whether the disclosure of the Cabinet record would be contrary to the public interest. If I am not satisfied that disclosure would be contrary to the public interest then the Cabinet record will not be an exempt record under s 33(2).
Professor Serdy surmises that the legal advice in the Cabinet record is likely to be, or include, either a neutral or pessimistic assessment of the chances of Australia securing in international litigation a seabed boundary similar to that which was achieved in the 1972 treaty with Indonesia. Professor Serdy says that any sensitivities with respect to this advice have been overtaken by subsequent events including the finalisation of the boundary with Timor-Leste in 2018.
Professor Serdy further surmises that the advice may include a discussion about Indonesia’s possible reaction if Australia were to concede to Timor-Leste any permanent seabed boundary more favourable than that achieved with Indonesia in 1972, specifically the risk that it might prompt Indonesia to try to terminate the 1972 Agreement and demand renegotiation of its boundary with Australia. He says this is unlikely because Indonesia took no such action upon the publication of the 2018 Maritime Boundary Treaty with Timor-Leste (which was very favourable to Timor-Leste).
I have found that the Cabinet record contains information that if disclosed could reasonably be expected to cause damage to Australia’s international relations. It follows from this expectation of damage that disclosure would be contrary to the public interest. It is not in the public interest that Australia’s international relations are damaged. It is also relevant that the document in question is a Cabinet record and relates to the affairs of government at the highest level. In Zarro v Australian Securities Commission (1992) 36 FCR 40 Gummow J said at 60:
The appellants accept, as they must, that cases of defence secrets, matters of diplomacy or affairs of government at the highest level are in a special position. It may so readily appear that the balance of public interest is against disclosure, that even in the absence before the court of any claim to Crown privilege (perhaps because the Crown is not a party and is unaware of what is afoot) the court of its own motion should enjoin disclosure: Sankey v Whitlam supra at 44, 58-59.
I find that s 33(2)(b) is satisfied and that the Cabinet record is an exempt document under s 33(2).
Decision of the Tribunal
I am satisfied that the decision of the Director-General is justified. The decision under review is affirmed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones. .........[sgd]......................................................
Tribunal Officer
Dated: 31 January 2023
Date of hearing:
10 May 2022, 11 May 2022 and 28 July 2022
Applicant:
Self-represented assisted by Mr Max Verlato
Counsel for the Respondent:
Mr Trent Glover
Solicitors for the Respondent: Mr Justin Hyland and Ms Louise Futol
Australian Government Solicitor
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