Re Dunn and Department of Defence - [2004] AATA 1040

CATCHWORDS – FREEDOM OF INFORMATION – access to documents – whether documents contained information irrelevant to the request – exemptions – whether disclosure would, or could reasonably be expected to cause damage to the security or defence of the Commonwealth – whether internal working documents – whether disclosure would be contrary to the public interest – decision varied.

PRACTICE AND PROCEDURE – conduct of hearing – confidential evidence – principles governing exercise of power to exclude public, party and legal representatives.

PRACTICE AND PROCEDURE – request to refer question of law to the Federal Court – factors relevant to the exercise of the Tribunal’s discretion.

PRACTICE AND PROCEDURE – request to defer operation of decision – principles governing the exercise of the Tribunal’s discretion.

Freedom of Information Act 1982 ss. 3, 4, 11, 22, 33, 36, 43, 58, 63 and 64
Administrative Appeals Tribunal Act 1975 ss. 35, 35A, 35AA, 36, 36A, 36B, 36C, 36D, 37, 39, 43 and 45
Archives Act 1983 s. 33
Migration Act 1958 s. 501K
Federal Court Rules Order 50 Rule 1
Defence Act 1903 s. 73A
Crimes Act 1914 s. 79
Criminal Code Act 1995 s. 91.1

Re Hocking and Department of Defence (1987) 12 ALD 554 (in part) and AAT 3483, 27 April 1987
Throssell and Department of Foreign Affairs (1987) 14 ALD 296, AAT 4001, 11 December 1987
Re Slater and Cox (Director-General, Australian Archives) (1988) 15 ALD 20
Re McKnight and Australian Archives (1992) 28 ALD 95
Attorney-General’s Department v Cockcroft (1986) 64 ALR 97
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163
Re Howard and Treasurer of the Commonwealth) (1985) 7 ALD 626
Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2, (1993) 1 QAR 60
Re Rae and Department of Prime Minister and Cabinet (1986) 12 ALD 589
Australian Doctors’ Fund Ltd v Commonwealth of Australia (1994) 49 FCR 478
Harris v Australian Broadcasting Corporation (1983) 50 ALR 551
Re Kamminga and Australian National University (1992) 26 ALD 585
Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Witheford and Department of Foreign Affairs (1983) 5 ALD 534

Re Arnold Bloch, Liebler & Co and Commissioner of Taxation (1984) 6 ALD 62
Re Kim Yee Chan and Department of Immigration and Ethnic Affairs (1985) 8 ALN N48
Re Carver and Department of the Prime Minister and Cabinet (1987) 6 AAR 317

News Corporation Ltd v National Companies and Securities Commission (1984) 5 FCR 88
Day v Collector of Customs (1995) 57 FCR 176
Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761
Mitchell v Noble (1981) 7 NTR 19
R v Industrial Court; Ex parte Hunkin [1934] SASR 208
Meilak v Commissioner for Superannuation (1991) 99 ALR 559
Hepples v Commissioner of Taxation (1992) 104 ALR 616
Re Russell Island Development Association Incorporated and Department of Primary Industries and Energy (1994) 33 ALD 683
Re Ewer and Australian Archives (1995) 38 ALD 789
Re Robinson and Department of Employment and Workplace Relations [2002] AATA 715
Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 23 AAR 142
Re Strang and Department of Immigration and Ethnic Affairs & Anor (1994) 36 ALD 449
Re Robinson and Department of Employment and Workplace Relations [2002] AATA 715
Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 326, 29 March 2004
Re Fund for Animals Ltd and Minister for Arts, Heritage and Environment (No. 2) (1986) 9 ALD 622
Re Parker and Tax Agents’ Board of New South Wales (1995) 95 ATC 2174
Re Wegner and National Registration Authority for Agricultural and Veterinary Chemicals (2002) 66 ALD 762
Jebb v Repatriation Commission (1988) 80 ALR 329

DECISION AND REASONS FOR DECISION [2004] AATA 1040

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2004/341
GENERAL ADMINISTRATIVE DIVISION     )

Re MARK DUNN

Applicant

AndDEPARTMENT OF DEFENCE
Respondent

DECISION

Tribunal: Deputy President S A Forgie

Mr C Ermert (Member)

Date: 4 October 2004

Place: Melbourne

Decision:The Tribunal
1.set aside the decision of the respondent dated 24 February 2004; and
2.substitute a decision that:
(1) the following information in the Documents is irrelevant to the applicant’s request for access made under the Freedom of Information Act 1982:
(a)Document 1: all that information identified in paragraph 11 of the affidavit of Commodore Coates being Exhibit 11;
(b)Document 2: all information other than:
Page 1:the dot point in line 8 of the text
Page 3:the full sentence in lines 5 and 6 and the dot point in line 7 of the text
Page 5:the Diagram
Page 7:the Chart
Document 3: all information other than:
Page B-5:paragraph 14 including its heading and Table

(2) in so far as they contain information relevant to the applicant’s request for access under the Freedom of Information Act 1982, Documents 1 and 2 are exempt under s. 36; and
(3) in so far as it contains information relevant to the applicant’s request for access under the Freedom of Information Act 1982, Document 3 is not exempt under either ss. 33 or 36; and
3.defer the operation of the decision until 4.00 pm on Tuesday, 5 October 2004.

S A FORGIE

Deputy President

REASONS FOR DECISION

The applicant, Mr Mark John Dunn, is a journalist with the Herald Sun, which is published by the Herald & Weekly Times Limited. On 15 April 2003, he asked the Department of Defence (“Department”) for access to:

“… documents which assess the possible casualties of Australian Defence Force members involved in the Gulf deployment and subsequent Operation Falconer, otherwise known by the US military as Operation Iraqi Freedom.”

He asked for that access under the Freedom of Information Act 1982 (“FOI Act”).

The Department identified three documents (“Documents”) as coming within the terms of Mr Dunn’s request and they are described by the Department as:
Headquarters Australian Theatre Operation BASTILLE Draft Health Concept of Operations (“Draft Health Concept of Operations”) (“Document 1”)
This document contains analysis of the health environment for conventional, asymmetric, biological and chemical warfare threats based on assessed Iraqi capability. Based on the health threat assessments, battle casualty estimates are assessed for the ADF’s deployed maritime, land and air forces. The document also discusses the extent of and limitations on ADF health support and required vaccinations for personnel. It was prepared as part of the development of the third document listed below.
This document is classified as SECRET AUSTEO LIMITED DISTRIBUTION according to the Commonwealth Protective Security Manual (“CPSM”)
Headquarters Australian Theatre Operation BASTILLE Draft Health Synchronisation Matrix (“Draft Health Synchronisation Matrix”) (“Document 2”)
This document provides details of estimated casualty rates in different hypothetical operational environments and during various hypothetical phases of operation. It was prepared as part of the development of the next document. The document contains blank assessment work sheets to be completed by specific officers who are not named. The scenarios contain text, graphs, drawings and photographs.
This document is classified as SECRET AUSTEO LIMITED DISTRIBUTION according to the CPSM.
The Headquarters Australian Theatre Operation FALCONER Administrative Instruction Annexure B – Sustainment Statement - General (“Administrative Instruction”) (“Document 3”)
The document provides guidance and direction for the administration, logistic, health, communications and public affairs support to ADF Operation FALCONER forces. Among that information are operational level assessments of the estimated casualty rates for the Australian Defence Force (“ADF”) maritime, land and air forces in various operational environments. Although the Administrative Instruction relates specifically to Operation Falconer, which is complete, it remains valid across ADF operations, including those in Iraq.
This document is classified as SECRET REL AS/UK/US according to the CPSM.
On 12 December 2003, Air Commodore Plenty refused access to the three documents as he had decided that they were exempt under ss. 33(1) and 36(1) of the FOI Act. Mr Dunn sought review of the decision and it was affirmed by Commodore Coates on 24 February 2004. Commodore Coates also based his decision on ss. 33(1) and 36(1).

THE ISSUES

There are two procedural issues in this case. We decided the procedural issues at the hearing but now give our reasons. They are:
May Mr Dunn and/or his legal representatives have access to the documents claimed to be exempt for the purpose of presenting their case? As we ordered that the documents be produced to us under s. 64(1) of the FOI Act, we decided that we are prevented by that provision from giving access to any of them.
Should we restrict access to part of the hearing so that Mr Dunn and/or his legal representatives may not hear part of the evidence of Commodore Coates and/or may not cross examine him. Upon Mr Dunn’s legal representatives, Mr Pizer and Mr Quill, giving an undertaking in the form annexed to these reasons, we decided that evidence given in the closed session by Commodore Coates was restricted to Mr Pizer and Mr Quill, officers and legal representatives of the Department, the members and staff of the Tribunal and officers of Auscript. None of those persons may disclose the evidence given at that hearing. Auscript may transcribe the evidence given in the closed session only on the authorisation of the Tribunal. Liberty to apply is given in relation to those orders.

There are three substantive issues in this case:
Do the Documents contain any information that would reasonably be regarded as irrelevant to the request made by Mr Dunn? We have decided that they do and have identified that information below.
Are the documents, or any of them, exempt under s. 33(1) of the FOI Act? We have decided that none of the Documents is exempt in so far as they contain relevant information.
It is agreed, and we find, that the Draft Health Concept of Operations (Document 1) and the Draft Health Synchronisation Matrix (Document 2) are documents of the type described in s. 36(1)(a) of the FOI Act. Would their release be contrary to the public interest within the meaning of s. 36(1)(b)? We have decided that it would be and that they are exempt under s. 36.
We have decided that the casualty figures shown in the Administrative Instruction (Document 3) are not exempt under either section of the Act.

The final issue in the case is whether we should defer the operation of our decision. We have decided to defer it to 4.00 pm on Tuesday, 5 October 2004.

THE HEARING

At the hearing, Mr Dunn was represented by Mr Pizer of counsel and the Department by its solicitor, Ms Campbell. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) (“AAT Act”) were admitted in evidence. Also admitted were statements by Mr Dunn, Mr Derek Noel Woolner, Brigadier Adrian Stuart d’Hagé and Commodore Nigel Stephen Coates together with a printout from the Department’s website headed “Operation Falconer Frequent Questions” and a report under the hand of Senator Hill, Minister for Defence, on the ADF’s operations in the Middle East in 2003. Oral evidence was given by Mr Dunn in support of his case together with Mr Woolner and Brigadier d’Hagé. It was given by Commodore Coates in support of the Department’s case.

THE WITNESSES

Apart from Mr Dunn, we summarise in this passage the background and expertise of each of the witnesses called in this case:

Brigadier d’Hagé
After 37 years as a member of the Australian Army, Brigadier d’Hagé retired in 2000. He holds a Diploma of Applied Science from the Royal Military College Duntroon (“Duntroon”) and University of New South Wales and a Bachelor of Theology (Hons) from the Charles Sturt University. In 1996, he was made a Member of the Order of Australia.
His Army service included his being:
(i)in command of an infantry platoon in 1968-69. During that time, the platoon was deployed to Vietnam and Brigadier d’Hagé was awarded a Military Cross for action in Vietnam in 1969.
(ii)in command of an Infantry Battalion in 1984/85.
(iii)Director Joint Operations and Plans – Defence in 1987/88. In that position, Brigadier d’Hagé was responsible for the day to day running of the Australian Defence Force Command Centre (“ADFCC”). His duties included his preparing Appreciations i.e. strategic planning and analysis for deployments including the issue of casualty figures.
(iv)Director General of Public Information – Defence from 1990 to 1996. During this time, Brigadier d’Hagé’s duties included his being Chief Spokesman for Defence. In that role, he conducted several hundred television, radio and print journalist interviews. He was required to ensure that he did not reveal information that might endanger the lives of servicemen and women either in Australia or overseas.
(v)Director General for Defence Support for the Sydney Olympic Games (“Sydney Olympics”) from 1996 to 2000. That position required Brigadier d’Hagé to prepare all Cabinet Submissions regarding Defence Security Support to the Sydney Olympics. Those submissions were directed to providing counter-terrorist support, bomb search and disposal and assistance to the New South Wales Commissioner for Police. As part of his planning, Brigadier d’Hagé developed plans to deal with possible chemical and biological attack on the Olympic Games. They had not previously been developed.
Ultimately, the Defence Support involved over 5,000 troops. An element of the submissions concerned possible casualties and how any such casualties could best be dealt with. Planning on that matter required Brigadier d’Hagé to liaise with the New South Wales Police, the Australian Federal Police and the Health Department. Had he been asked for them, he would have admitted that the casualty estimates ran into the thousands.

Mr Woolner
Since 2002, Mr Woolner has been a Visiting Fellow at the University of New South Wales Defence Studies Forum and at its predecessor, the Australian Defence Studies Centre (“ADSC”). During 2003, he was the designated spokesman for the ADSC and the University of New South Wales Database of Academic Expertise in relation to the conflict in Iraq. Between 19 and 31 March 2003, he made 14 appearances on either the television or radio or in the print media.
Mr Woolner’s previous experience has included:
(i)his being an adviser to two Ministers of Defence from 1973 to 1975.
(ii)Director of the Foreign Affairs and Defence Group in the Commonwealth Parliament from 1985 to 2001.

Commodore Coates
Commodore Coates has been a member of the ADF for 29 years. He holds a Masters Degree in Strategic Studies and International Relations from the University of New South Wales as well as a Diploma of Applied Science and a Graduate Diploma in Sensor Management.
Since December 2003, he has been the Chief of Staff of Headquarters Joint Operations Command (“HQJOC”). HQJOC is the operational headquarters for the ADF operations, which are formally known as Headquarters Australian Theatre. In that position, Commodore Coates is directly responsible to the Deputy Chief of Joint Operations Command for the control and functioning of HQJOC in accordance with the tasks and priorities directed by Chief of Joint Operations.
He was promoted to the rank of Commodore in 2003 and made a Member of the Order of Australia in the same year.
Commodore Coates’ previous service has included his being:
(i)Commanding Officer of HMAS CANBERRA and HMAS ANZAC.
(ii)Chief of Staff to the Chief of the Defence Force in mid 2002.

THE TERMINOLOGY

Based on the evidence of Commodore Coates, which was consistent with the remaining evidence, we find that the expression “Weapons of Mass Destruction” or “WMD” is not a term that originates in either the Department or the ADF. It is regarded by the Department and the ADF as a loose term. If used by them, it is used to mean thermo-nuclear, biological and chemical weapons. Those weapons range from old World War II chemical weapons at the lesser end of the scale to those creating untold millions of casualties. We use the term WMD in that sense in these reasons and understand it to have that meaning when used in the report signed by the Minister for Defence.

BACKGROUND

Based on the evidence of Commander Coates, the Operation Falconer Frequent Questions document and Senator Hill’s report, we make the findings in the following paragraphs. On these matters, that evidence was either consistent with, or not contradicted by, other evidence. Our findings reflect only a broad outline of events concerning Iraq and Australia’s involvement.

In more recent times, the ADF has contributed forces to several operations. After 11 September 2001, the ADF deployed an Australian National Commander to Kuwait and he oversaw the ADF’s contribution to Operation Slipper in Afghanistan. That contribution comprised a Special Forces Task Group and various equipment.

On 8 November 2002, UN Security Council Resolution 1441 was passed unanimously. It afforded Iraq a final opportunity to comply with its disarmament obligations under previous resolutions and established an enhanced weapons inspection regime in Iraq under the United Nations Monitoring, Verification and Inspection Commission and the International Atomic Energy Agency. On 20 November 2002, the Prime Minister:
“… stressed that the international community, including Australia, could not walk away from the challenge posed by Iraq. Indicating Australia’s strong support for Resolution 1441, he stressed the choice was now Iraq’s either to cooperate fully with weapons inspectors and remove its WMD capabilities or face the consequences if it did not meet its international obligations.” (Exhibit B at 10)

Also in November 2002, the ADF moved the Australian National Headquarters Middle East Area of Operations to co-locate with the US Central Command Deployable Headquarters.

The United Nations Monitoring, Verification and Inspection Commission returned to Iraq on 27 November 2002 and resumed inspections. Its head, Dr Hans Blix, delivered progress reports on 27 January, 14 February and 7 March 2003.

In 2003, personnel were deployed to the Middle East as part of Operation Bastille. They were deployed for acclimatisation and in-theatre training with other members of the International Coalition. The first members of the ADF left Australia on 23 January 2003. By 25 February 2003, there were approximately 2,000 ADF personnel, as well as various assets, in the Middle East assigned to Operation Slipper and Operation Bastille.

After Dr Blix’s report of 7 March, the US tried to obtain support in the UN Security Council for a resolution to enforce its previous resolutions calling on Iraq to disarm and to permit UN inspectors to verify the destruction of its WMD. When it became clear that the UN Security Council would not pass such a resolution, the US sought support from a “Coalition of the Willing”. On 18 March 2003, the US President warned that the Coalition of the Willing would take military action unless Saddam Hussein and his sons, who headed Iraq’s security and military agencies, relinquished power and left the country within 48 hours.

On 18 March 2003, the Prime Minister advised Parliament that the Government had authorised the ADF to take part in operations by an international coalition of military forces. Operation Falconer began on the same day as Operation Bastille came to an end. Approximately 2,000 ADF personnel were committed to the operation. Major combat operations formally ended on 1 May 2003. The ADF’s contribution was reduced but some personnel remained to begin the next phase of the operation, Operation Catalyst.

Operation Catalyst began on 16 July 2003. Up to 900 ADF personnel remain either in Iraq or in its environs. Two hundred are on the ground in Iraq. They train volunteers for the new Iraqi Army, initially provided air traffic control services and continue to search for WMD as part of the Iraq Survey Group. Senator Hill’s report listed the units involved in Operation Catalyst as including:
a Joint Task Force headquarters for national command of ADF elements in the Middle East for Operation Catalyst and Operation Slipper;
a frigate, a Logistic Support Element and staff to support the Multinational Interception Force Commander (about 270 personnel);
an RAAF C-130 Hercules detachment of two transport aircraft and about 140 personnel;
a combat support element of about 60 personnel providing air traffic control services at Baghdad International Airport;
the security detachment at the Representative Office in Baghdad (about 80 personnel, four armoured vehicles and an explosive ordnance detachment);

about 16 analysts and technical experts supporting the Iraq Survey Group – to investigate Iraq’s weapons of mass destruction and associated programs;
about 90 personnel in various Coalition headquarters units, combined logistics and communications elements;
a team of six to provide training and assist the development of the Iraqi Defence Force;
a team of 5 ADF and Defence civilian representatives in the Coalition Provisional Authority; and
an RAAF AP-3C Orion detachment with two maritime patrol aircraft and about 160 personnel to support rehabilitation in Iraq and the Coalition operation against terrorism. (Exhibit B, page 37)

On the basis of Commodore Coates’ oral evidence, we find that the change in operations reflects a variation in the ADF’s role and the structure of its forces in Iraq. Despite the change, all the operations have been classified as war-like operations for the purposes of the ADF personnel’s conditions of service and entitlements. Despite the change, members of the Coalition continue to be involved in similar activities. Under Operation Falconer, troops were moved in to “take over” Iraq. That meant securing the terrain including the cities and towns. Areas of population density are hard to secure from a military point of view. Even though Operation Falconer has finished, the task of trying to gain and then maintain control continues. All of the non-battle threats remain unchanged. ADF ships continue to protect infrastructure as they had done before Operation Falconer.

THE EVIDENCE

In this section, we outline the evidence given by Commodore Coates in the open sessions of the hearing. Some reference is also made to that given by Mr Dunn, Brigadier d’Hagé and Mr Woolner. We have not set out that given in the closed session but have had regard to all of the evidence given at the hearing in reaching our decision. We note that the evidence given in the closed session expanded on aspects of Commodore Coates’ evidence in the open sessions. It did not alter the grounds on which the Department’s case is presented.

The information sought by Mr Dunn in his request

When asked whether he just wanted the figures for the casualty rates or the whole of Documents 1, 2 and 3 (“the Documents”) with any descriptors, analogies and amplifications, Mr Dunn said that it was difficult to know as he had not seen the Documents. Given that the war in Iraq was fought on the basis of Iraq’s having WMD, he would assume that the casualty rates would be linked to WMDs as well as to other factors including conventional capabilities. The information that he sought focuses not on Australia’s capacity to defend itself but more on Iraq’s ability to inflict harm on Australia through its alleged WMDs or through its other weapons. He would expect to be given the estimates together with assumptions regarding Iraq’s ability to inflict those casualties. Mr Dunn said that he would not expect to be given information regarding the location of the ADF’s hospitals, for example.

The development of an Administrative Instruction

Commodore Coates said that an Administrative Instruction is the result of a massive planning effort supported by dozens of people. His job is to manage that planning, which is undertaken according to a well defined pattern for a number of operations, including those in East Timor, the Gulf War and the Solomon Islands, as well as for exercises. Under Commodore Coates are six or seven branches, each headed by a senior officer. Each branch has three or four experts in particular areas. They range from operations, logistics and communications to legal and health experts. Each branch is responsible for planning in its own area of expertise working within the guidelines given by Government and the Chief of the Defence Force. External experts are also drawn into the planning process as well as other areas of the ADF. The plans from each are then put together like the pieces of a jigsaw to make a whole picture. Commodore Coates describes the process as the “upwards cascading of planning”. As the plan moves upwards through the levels of sub-groups, it is refined and added to as one group may know information required, but not known, by another group.

This is the context in which Documents 1 and 2 were produced, Commodore Coates said. He said that they may contain false assumptions because at the time they were produced there was a lot of activity and time was compressed. The Administrative Instruction that is Document 3 represents the planning of one branch – Administration and Personnel – but it picks up the planning of a number of other branches including health and legal issues. A similar process is used by each. This is a common planning process across most western developed countries and the process is used on a daily basis with Australia’s major allied partners. The Administrative Instruction is a subset of an Operations Instruction and requires approval at a very high level.

Brigadier d’Hagé said that he was familiar with instructions having prepared them and having read between two and three hundred over the years. He did not give evidence contradicting that of Commodore Coates on this subject.

The content of Documents 1 and 2

Commodore Coates said that members of staff of Headquarters Australian Theatre prepared Documents 1 and 2 between December 2002 and January 2003. He said that they were prepared to assist the decision-making processes of the ADF for three purposes: indicate the kinds of casualties (both battle and non-battle) likely to be suffered by ADF members; estimate the treatment required and the medical facilities available for use and those needing to be provided by the ADF; provide advice and opinion on the potential threats to the health of ADF members deployed in the area.

Documents 1 and 2 “… informed the issue of the final Instruction (document 3)” (Exhibit 2, paragraph 16). Commodore Coates considered that the information contained in the documents does not accurately reflect the entire reasoning process behind the opinions and recommendations expressed in the documents. Documents 1 and 2 are not comprehensive. They provide only the framework for more detailed analysis leading to the subsequent development of the Health Support Plan contained in the Administrative Instruction (Document 3). In Commodore Coates’ opinion, disclosure of Documents 1 and 2 would lead to confusion and uninformed public debate. At the same time, Commodore Coates said that the information in Documents 1 and 2 continues to be of a sensitive and operational nature and that evidence of that is found in their SECRET classification.

In cross-examination, Commodore Coates confirmed his written evidence that Document 1 examines the health environment for threats particular to assessed Iraqi capabilities. It had done so as at December 2002 or January 2003. It did so for the whole of the operation to occupy Iraq whatever name was used for the operation. He agreed with Mr Pizer that it was an operation not just to occupy Iraq but to seize control of its assets. When asked whether Document 1 assessed capabilities at today’s date, Commodore Coates replied that it was not entirely correct to say that.

With regard to the Administrative Instruction itself, Commodore Coates said that it is an Instruction to ADF ships, units and military formations. That Administrative Instruction remains in force today in respect of units deployed in Iraq and the Arabian Gulf (“Gulf”). It will continue to remain in force in respect of the deployment of ADF units in that theatre in the future. It remains in force in relation to the casualty estimates.

Brigadier d’Hagé questioned how the Instruction could continue to remain in force when it is eighteen months old and WMDs are not the threat in Iraq that was previously thought to be the case.

The classification of the documents

Commander Coates gave evidence in his affidavit as to the classifications given to the various documents. He said that they mean:
“SECRET” means that the “…compromise of the information contained in the documents could cause serious damage to national security. In particular, compromise could seriously damage the operational effectiveness or security of Australian forces” (Exhibit 2, paragraph 13).
“AUSTEO” means that it is to be seen by Australian eyes only but then only by eyes belonging to Australian citizens, who have been appropriately cleared and who have a need to know. The information must not be given to foreign nationals even if those people have the appropriate Australian security clearance.
“AS/UK/US” means that the document can only be passed to Australian, British and American personnel who, have the appropriate security clearance and who need to know the information in order to carry out their duties.

Documents given one of these classifications are secured in accordance with guidelines in the CPSM whether they are in Australia or overseas.

We note that the extract from the CPSM attached to Commodore Coates’ affidavit also sets out other levels of classification including RESTRICTED, CONFIDENTIAL and TOP SECRET. The CPSM regards the markings of “AUSTEO” and “AS/UK/US” as a caveat that is in addition to the classification that is the protective marking on the document. In particular, they are “releasability indicators” (cl. 6.58). A warning is given in the CPSM that information should only be security classified when the consequences of compromise warrant the expense of increased security protection. Inappropriate or over-classification has a number of seriously detrimental effects cl. 6.44 of the CPSM warns. Apart from the logistical problems associated with it and the consequent expense, it is said that the general public’s access to government information becomes unnecessarily limited and classification and security procedures are brought into disrepute.

Brigadier d’Hagé agreed with Commodore Coates to the extent that operational documents are often accorded a high security classification. He went on to add the following qualification:
“… documents are classified to protect the information of the greatest sensitivity. In extremis, a single paragraph may justify a high classification in a document that has a considerable amount of information of a much lower or zero sensitivity. The casualty estimates sought by the Applicant are now over eighteen months old and no longer pertinent to current operations, the nature of which has changed dramatically. For example, there is no longer a weapons of mass destruction threat.” (Exhibit D, paragraph 8)

WMDs

The Operation Falconer Frequent Questions document on the Department’s website was printed on 20 September 2004. Commodore Coates agreed that it was important that the Department’s website was accurate. In response to a question whether ADF members are in danger, an answer is given that reads, in part:
“This will be a difficult and dangerous mission. Not only will the ADF be operating in difficult terrain and harsh conditions, but Saddam Hussein is known to have weapons of mass destruction.
The nature of the operation means there is a level of risk to our personnel and a possibility that Australian casualties may be sustained.” (Exhibit A)

The answer goes on to talk of the activities that were undertaken during Operation Bastille.

An answer given to an earlier question on the website had stated that “About 2, 000 servicemen and women had been committed to the coalition enforcing the disarmament of Iraq” (Exhibit A). Commodore Coates said that the answer was accurate of Operation Falconer and accurate when it was written. When asked whether the first paragraph of the answer set out in our paragraph above was true, Commodore Coates replied that it was accurate at the time it was written. The second paragraph is true.

Commodore Coates agreed with the statement in the Minister’s report that “Our Special Forces Task Group mission was to conduct operations in designated areas in western Iraq as part of the coalition effort to defeat the WMD threat” (Exhibit B, at 21). He agreed with Mr Pizer’s proposition that the worst case estimates in Document 3 had to be based on the assumption that Saddam Hussein had WMD but added that it had to be understood what WMDs are. It is a loose term that was not coined by the military but that is used by persons other than the military to cover a wide range of weaponry. They range from anything from the massive thermo nuclear weapons creating untold millions of casualties through to those at the lesser end of the scale such as an old chemical weapon from World War II.

The only type of WMDs that have been found in Iraq are old World War II chemical munitions. When asked to confirm that no WMD had been found in the scale that were contemplated when the documents were formed, Commodore Coates replied that:

“To date there have been no weapons found that would correlate with the upper end range of capability inherent within that term weapons of mass destruction. … Certainly there have been no weapons found of the order of …
… putting on missiles and firing into neighbouring countries. There have been no weapons found of the large scale nuclear and biological and chemical type described freely in the media …
… Not in the quantities, in the large quantities described, or postulated, or believed to be in Iraq’s position [sic – possession] at the time.
At the time that the documents in dispute were created? --- That is true, yes. ” (transcript of Commodore Coates’ open access evidence, pages 92-3)

WMD were taken into account in assessing the casualties in Iraq. Commodore Coates agreed with the statement in the Minister’s report that, in the 1990-91 Gulf War, Iraq fired several missiles with conventional explosive warheads into Israel. That Iraq might use similar missiles armed with chemical or biological weapons was identified as a key strategic risk in the Coalition’s battle plans (Exhibit B, at 21). It was taken into account in assessing the ADF’s casualty rates. When asked how it is that the casualty estimates could still be the same when WMDs had not been found in the large quantities believed to be in Iraq’s possession at the time the Documents were created, Commodore Coates replied:

“Because the casualty estimates are based on a range of scenarios, a range of likely scenarios, and all of those scenarios are still possible today.” (transcript, page 93)

Brigadier d’Hagé said that it was not his understanding that World War II weapons were still a threat. His understanding was that there were a few World War II rusted weapons but that the threat from them was zero or not far above it. That this was so was underlined by the fact that, initially, personnel seen on live telecasts from Iraq wore chemical/biological suits. That was at the beginning of Operation Falconer when the threat was very real. Now no-one is seen in them unless they are clearing a suspect area. That suggests that the risk from chemical weapons was now very minimal.

Brigadier d’Hagé’s understanding that only the residue of chemical weapons had been found. When Ms Campbell suggested to him that he could not know that as the ADF had not published it, Brigadier d’Hagé responded that he had no access to intelligence reports but he did have in depth knowledge of the way in which intelligence is put together. CNN has a big impact on what gets into Australia’s intelligence material. It may make its way into AUSTEO marked material. Kidnappings, mortar attacks and car bombs are the current threats. They are the preferred weapons of terrorists. There has been no suggestion in open sourced material that the adversary in Iraq possesses Sarin or Anthrax or has the capability to release it. Despite 19 deaths, even the attack in Tokyo in 1996 was a failure because those using Sarin could not reduce the droplets to micron size so that they could be supported by the atmosphere. Whether or not they would choose to use Sarin even if they could spread it is another matter. To release it could lead to the killing of as many of their own as of their adversary. Therefore, its use is at the low end of the matrix. Unlike chemicals, car bombs can be used with a good idea of the casualties that will be caused.

Has the situation in Iraq changed with the change from Operation Falconer to Operation Catalyst?

When asked whether the operational situation for ADF personnel had changed in Iraq since the conclusion of Operation Falconer and the commencement of Operation Catalyst, Commodore Coates said that he had to take a practical approach bearing in mind the needs of Australians in the Gulf. If they are driving between two cities or on a ship, they were being shot at during Operation Falconer and continue to be shot at during Operation Catalyst. Life is as “interesting” before as after. Commodore Coates disagreed with Mr Woolner’s statement to the effect that the ADF’s involvement has significantly decreased and the change to the nature of its operations has substantially reduced its exposure to hostile military action (Exhibit C, paragraph 12(b)). On the night before Anzac Day, he said, the HMAS Stuart was involved in a multiple suicide boat attack in the Gulf. As they recovered dead and wounded American sailors, Commodore Coates thought that HMAS Stuart’s sailors would not have felt any safer than did their comrades 12 months before. ADF aircraft regularly fly in and out of and over Iraq. They face a daily threat of being hit by shoulder launched missiles although no such attack has been successful to date.

The threat to ADF personnel remains very similar to the threat that existed during Operation Falconer. Commodore Coates was asked to comment on the following paragraph from Mr Woolner’s statement:
“Given that the Australian Government understood that Iraq possessed weapons of mass destruction, the casualty estimates in the Documents would have been based on the possibility of ADF units being engaged by potentially powerfully armed military formations. It follows that, at the time they were created, the ADF was planning to face a strong opposition from a well-organised enemy capable of delivering lethal military force with the potential to inflict maximum casualties. This strong opposition was destroyed by the end of the Operation Falconer.” (Exhibit E, paragraph 14)

Commodore Coates commented that there is a difference between what is said in the newspapers to be the level of opposition in Iraq before Operation Falconer and what the opposition is judged to be by the military on the basis of its own considered sources. What the ADF thought it was facing is not available in the public arena. The sorts of threats and environment experienced under Operation Falconer is similar to that ADF personnel are currently experiencing.

Commodore Coates was also asked to comment on Mr Woolner’s further statement that:
“It is important to understand the differing strategic aims of opponents at the time of Operation Falconer and at present. The Iraqi armed forces can have been expected to attempt to maximise ADF casualties in order to degrade ADF formations and reduce or destroy their fighting capacity. Unable to concentrate the required level of force to achieve such aims, terrorists attempt to cause casualties to the level required to achieve their political aims. I believe that the level of casualties required to achieve such political goals is greatly below that required to destroy an enemy force in battle. The pattern of violence by current opponents in Iraq, including the barbarically theatrical execution of individuals, indicates that current opposition in Iraq works to the same expectations. Given this different type of opposition currently faced, it is difficult to see how disclosure of the Documents could expose the ADF to increased casualties.” (Exhibit E, paragraph 16)

Commodore Coates said that, were an adversary to know of the casualty rates that were estimated if a suicide boat were to go alongside an ADF warship (as happened with the USS Cole), that adversary might be encouraged to attack an ADF warship when it would otherwise consider it too hard a target. It is one thing to assume what casualties may be and another thing to know them. Knowing them may be the difference between an adversary’s pushing on an extra 200 metres to blow up a ship and not doing so and just blowing up themselves.

Commodore Coates agreed with Mr Woolner that the number of ADF personnel engaged in activities in Iraq and the Gulf are reduced when compared with Operation Falconer. That does not mean, though, that their risk to hostile actions is reduced. There is probably an increased threat because of the nature of the activities that are taking place there. Commodore Coates did not agree with Mr Woolner’s evidence that “particular ADF targets” may no longer have any current relevance as the main ADF members who could be targeted are now trainers, air traffic controllers and the protectors of the Australian Embassy. Mr Woolner thought it likely that the ADF has created a security envelope around these operations which limits further risk. To date, the operation at the Australian Embassy has been entirely successful. Commodore Coates said that Mr Woolner is not correct. The ADF’s force structure has changed in that there are no longer air traffic controllers deployed in Iraq. It is false to say that any area in Iraq is protected from attack. If they were, civil contractors would be undertaking the tasks rather than the soldiers currently deployed there.

Commodore Coates was referred to the statement in the Minister’s report to the effect that the role of the ADF’s deployed forces changed with the commencement of Operation Catalyst to one of contributing whole-of-government effort to assist with the rehabilitation of Iraq (Exhibit B, at 36). He said that might have been the case then but it certainly was not the case now. The statement ignores the reality of the situation on the ground because, since then, ADF personnel continue to be engaged in war-like activities.

Brigadier d’Hagé said that, if the threat of WMDs is removed, the casualty estimates come down by thousands. If Anthrax and the like can be delivered into the atmosphere, they have a dramatically marked effect compared with that of snipers on the ground. The risk in Baghdad remains very high but the risks from mass attack are different with the removal of the threat of WMDs.

Effect of giving access to information in Documents 1, 2 and 3

The information is such, Commodore Coates said in his affidavit, that it could be used by an entity hostile to Australia to identify those ADF targets that could be attacked and that could cause the most damage and harm to Australia’s defence forces operating in Iraq and the Northern Arabian Gulf. He illustrated his point by reference to an enemy’s gaining knowledge of casualty estimates for various hypothetical situations and the location and capacity of supporting health assets. Health planning is intended to minimise the incidence of morbidity and mortality both from battle and non-battle situations. It does so by providing what he described as responsive health care. Provision of responsive care incorporates the provision of continuous treatment. Continuous treatment requires the ADF’s being able to evacuate casualties, having the capacity to provide resuscitative and surgical facilities near where the casualties occur. Casualties have a greater chance of surviving evacuation with early initial resuscitation. Even with early resuscitation, mortality rates increase significantly if there is no prompt surgical intervention.

Should the enemy know the casualty estimates as well as the location and capacity of supporting health assets, Commodore Coates went on to say, that enemy could use its knowledge to identify specific targets where it could inflict casualties greater than anticipated and do so in an area remote from the appropriate level of health support. If that were to occur, the rates of morbidity and mortality would potentially overwhelm the supporting health facilities. The effectiveness of the ADF’s operations would be severely reduced as a result. The security and defence of the Commonwealth would be damaged.

In his oral evidence, Commodore Coates said that, if he knew an adversary’s methodology in assessing casualties and if he knew the number of casualties estimated by that adversary, he would have two more pieces in his jigsaw picture he is building up about that adversary. He needs to get inside the thought patterns of the adversary and to understand that adversary’s strengths and weaknesses. He needs to know the weaknesses so that he can attack them. While he can guess the adversary’s strengths and weaknesses, he does not know them for sure and there is always an element of doubt. Casualties are a prime piece of information in the factual jigsaw picture he is trying to compile.

Commodore Coates rejected Mr Woolner’s evidence that:
“20. Given that the strength of opposition in Iraq has significantly diminished and the level of the ADF’s involvement in that country has significantly decreased, it cannot be contended that disclosure of the Documents would damage the current operational effectiveness or security of the ADF.
21. Further, any contention that disclosure of casualty estimates would contain long-term value to a potential enemy of Australia is also nonsensical. It is extremely unlikely that the nature and type of any future operation would be substantially identical to Operation Falconer.” (Exhibit C)

Commodore Coates referred to the general issue of future operations. The underlying methodology and the planning process will be used by the ADF in future operations. If an adversary could understand the methodology and some of the considerations and capacities with the results as evidenced by the casualty estimates, it would not take rocket science to translate that into any other scenario. The adversary would have another piece of the jigsaw. It is that future aspect that concerns him, Commodore Coates said.

Of Documents 1 and 2, Commodore Coates said that they had not been given Command clearance. They could contain inaccuracies and false assumptions of fact. They are very much staff documents that are used to produce a final document in the form of Document 3. They contain opinions and “what ifs”. They have not yet gone through the checks and balances and so it cannot be said with any certainty that the information in them is correct or not.

Brigadier d’Hagé takes a different view of the release of the Documents. He said that casualty estimates are only one factor but they do have a big impact on the health deployment that is required i.e. on a range of capabilities including hospital ships and evacuation facilities. Disclosure of the capabilities provided on the basis of the casualty estimates and the location of their deployment could endanger ADF personnel presently deployed in and around Iraq. Disclosure of the casualty estimates themselves would not. He was also of the view that disclosure would not damage the defence and security of the Commonwealth either now or in the future.

Brigadier d’Hagé said that releasing the casualty estimates would not advantage an adversary in the “steady deterioration of Iraq”. The adversary is “pretty clever” at attacking weak points but those weak points are already known. It is already known that aircraft are at threat from bullets when they fly into Baghdad Airport. It is tenuous to say that the release of casualty estimates will give the adversary information he did not already know. An adversary can already obtain from Jane’s Defence Weekly an estimate of how many people could be on board any particular aircraft. Similar information can be obtained from Jane’s regarding tanks, vessels and the like. Brigadier d’Hagé failed to see how weighing up the estimates with figures already in the public domain could assist an adversary. The vulnerability of helicopters is already in the public arena as is the “spectacular effect of bringing down a Black Hawk”.

Brigadier d’Hagé said that Iraq has deteriorated to the extent that certain areas in major cities are “no go zones” because of weapons such as launched grenades, small arms fire and shoulder launched missiles. The adversary knows the carrying capacity of the ADF’s vehicles. The other major threat is from car bombs. No doubt personnel are taking precautions in view of that but to release information about estimated casualties does not affect that. The other side already knows the effective ways of dealing with convoys. It is common knowledge that there is an envelope of protection provided by the ADF and that ADF personnel are training the Iraqis. They are probably aware of the training locations. Release of the estimated casualty rates would not add anything to the jigsaw picture available to the adversary or advantage any adversary. Brigadier d’Hagé dismissed as “fanciful” evidence given by Commodore Coates as to the way in which water trucks could be attacked were the casualty estimates to become known. Commodore Coates is highly professional and highly regarded, he said, but the risks of heat exhaustion are already on the public record. The risks have been widely debated in Australian and international press as well as the need for our personnel to acclimatise to the climate in Iraq. There are many ways of getting water to personnel apart from water trucks.

Brigadier d’Hagé said that the information in the Documents is now 18 months old. He could not see how it would add to the jigsaw of information. The other side knows about car bombs, mortars fired from “no go zones” in the cities and they know what to expect if they fire on ADF personnel. In every case of attack, that is already known to them. Brigadier d’Hagé said that the information is not a missing piece of the jigsaw. It is already known.

Brigadier d’Hagé said that the casualty estimates must have changed with the finding that Iraq does not have WMDs. WMDs would now have very little, if any, impact on the casualty estimates.

In cross-examination, Brigadier d’Hagé said that he had never knowingly disseminated information that put his platoon, when he commanded a platoon, or troops at risk. For the 37 years of his Army service he was conscious of the need not to do so. He still takes that view. When his position required him to “interface with the gallery and other journalists”, that was part of his role. Almost all serving officers take the same view. When he was asked for the non-battle casualty figures for an Exercise Kangaroo, Brigadier d’Hagé said, he replied that, unfortunately, there would be one or two because 30,000 people were being put in a small area. He acknowledged that Exercise Kangaroo is a friendly exercise but rejected the notion that it was different from the situation in Iraq. On Exercise Kangaroo it is estimated that some will be killed in road accidents or if a helicopter flies into power lines. It is the same in Baghdad; there will be road accidents and accidental discharges. The estimates have to be explained but release of that sort of information does not prejudice or endanger troops or the Commonwealth. He would not agree with the disclosure of locations (even though everyone knows them) or medical capacities.

The public interest

Commodore Coates said that he believed that the information in Documents 1 and 2 does not accurately reflect the entire reasoning process behind the opinions and recommendations expressed in the Documents. They are not comprehensive documents in their own right as they only provide a framework for more detailed analysis leading to the subsequent development of the Health Support Plan contained in the Administrative Instruction. In his opinion, their disclosure would lead to confusion and uninformed public debate.

The sensitive and operational nature of the information in Documents 1 and 2 was evidenced by their SECRET classification. It remains in force in respect of ADF personnel deployed in Iraq and in the Gulf. They will continue to remain in force in respect of deployment of ADF units in that theatre in the future. Given the information in Documents 1 and 2 and their subsequent use in developing the Administrative Instruction for Operation Falconer, Commodore Coates considered that their release was contrary to the public interest. He gave similar evidence in relation to Document 3.

Brigadier d’Hagé was of the view that:

“… any decision to wage war on another country is arguably the most serious decision a Government can take. Full disclosure of the risks involved is most definitely in the public interest and that disclosure should include the issue of possible casualties.” (Exhibit D, paragraph 9)

In his oral evidence, he said that he would argue that the public has the right to know the casualty estimates because WMDs no longer exist and because of the very serious nature of the decision to become involved in the war in Iraq. It is a public interest of the highest order, he said. Brigadier d’Hagé thought that casualty estimates should be released by the Department in the forum of a press conference. It would be a press conference “not without atmosphere” but it would give the Department an opportunity to explain them. It would not be hard to explain the bases for the estimates. What would be harder to explain would be whether the risk should have been taken but that would not be an issue for the Department to explain; it would be an issue for government.

As for the contention that disclosure would lead to confusion and uninformed public debate, Brigadier d’Hagé said:

“… As the Department of Defence has a responsibility to participate in open discussion/explanation/debate, it is hard to accept that a debate would be uninformed. Quite the contrary. As a result of such discussion and the disclosure of what is already in the public domain – to wit that is normal for Defence Forces around the world to estimate casualties (both battle and non-battle) for any operation – the public would be far better informed of the normal risks of war.” (Exhibit D, paragraph 10)

Mr Dunn referred to the British government’s Code of Practice on Access to Government Information. Requests made under that Code for access to information are considered in light of the Guidance on Interpretation, 2^nd edition, 1997. Paragraph 1.1 of Part II of that Guidance on Interpretation states that:
“Defence, security and international relations are legitimate subjects for public information and debate. This exemption is not intended to protect information necessary to inform public debate in these areas, including the factual and analytical basis of policy. Nor, in the field of defence, should the exemptions prevent disclosure of factual information relating to legitimate concerns such as loss of life …”. (Exhibit E, paragraph 8)

Mr Dunn considered that the disclosure of the Documents would advance or promote the public interest by:

“(a) enabling fully informed public debate on the merits and adequacy of the Australian Government decision to commit Australia to the Iraq war;
(b)enabling fully informed public debate on the Australian Government decision to commit Australia to the Iraq war in light of the battle casualty estimates, rather than the actuality of causalities;
(c)ensuring that the battle casualty estimates before the Australian government are transparent and open to public scrutiny;
(d)enabling fully informed public debate on the nature of the threat posed by weapons of mass destruction at the time of the documents’ creation;
(e)enabling fully informed public debate on the health assessment given the threat of weapons of mass destruction at the time of the documents creation;
(f)ensuring that the public have access to highly authoritative parts of the draft documents which were intended by their creators as final documents.” (Exhibit E, paragraph 7)

If he is given access to the Documents, Mr Dunn said that he could not guarantee that he would make public all of the information in them. Whether he does depends on whether it compromises technical detail and whether space is available. He has always emphasised that he does not want to increase the risk facing ADF personnel. The statistics he seeks, Mr Dunn said, do not increase that risk.

THE FOI ACT

General structure of access provisions of FOI Act

Section 11(1) of the FOI Act 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.”

The words “Subject to this Act” appear in s. 11 for a person’s right is qualified by other provisions of the FOI Act. The right is qualified, for example, by the fact that it is only given to every document in the possession of an agency, which includes the Department (s. 4(1)), that is not an “exempt document”. In so far as an agency is concerned, an “exempt document” is a document that is exempt by virtue of a provision of Part IV of the FOI Act (s. 4(1)). Two provisions in Part IV have been raised as relevant by the Department. We will consider each in a moment.

The right is also qualified by more procedural provisions found in Part III of the FOI Act. Among those is s. 22, which provides generally for the deletion of material from a document if that material is exempt or irrelevant to a request. An agency may delete material on the basis of irrelevancy if “… to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request …” (s. 22(1)(a)(ii)). If an agency deletes material on that basis, it must advise the person to whom access to the resulting document is given (s. 22(2)).

Exemption provisions: s. 33 – documents affecting national security, defence or international relations

Section 33(1) provides that:
“(1)   A document is an exempt document if the 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)   …
(b)….”

Without limiting its generality, the expression “security of the Commonwealth” shall be taken to extend to:
“(a) matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth; and
(b)the security of any communications system or cryptographic system of the Commonwealth or of another country used for:
(i)the defence of the Commonwealth or of any other country allied or associated with the Commonwealth; or
(ii)the conduct of the international relations of the Commonwealth.” (s. 4(5))

The word “defence”, which appears both in the definition of “security” and in s. 33(1)(a)(ii) is not defined in the FOI Act. The authorities to which we have been referred do not analyse the expression “security of the Commonwealth” in the context either of the FOI Act or the Archives Act 1983 (“Archives Act”). In Re Hocking and Department of Defence (1987) 12 ALD 554 (in part) and AAT 3483, 27 April 1987 (Deputy President Bannon QC, Senior Member Renouf and Mr Taylor, Member), the Tribunal referred to the Commonwealth’s defence power:
“Assuming, as we do, that the Army will observe the law, there can be no doubt that the prevention of the subversion of The Constitution and of the laws of the Commonwealth and of the States by terrorism must be a primary objective of government. Section 51(vi) of The Constitution makes it clear that the defence power extends not only to external defence but also to the maintenance and control of forces to execute and maintain laws of the Commonwealth, while section 119 of The Constitution requires the Commonwealth, on the application of the government of the State, to protect the State against domestic violence.” (unreported, at 3)

Section 33(1) requires only that we consider whether disclosure under the FOI Act “would, or could reasonably be expected to,” endanger the security, defence or international relations of the Commonwealth. It does not require that the public interest be taken into account. We have reached that conclusion on several bases. First, unlike s. 36(1), to which we will turn in a moment, it does not expressly incorporate a public interest test. That omission strongly suggests that Parliament did not intend that the public interest has any part to play in making a decision under s. 33(1). So too does s. 58(2). It provides that “where … it is established that a document is an exempt document, the Tribunal does not have power to decide that access to a document, so far as it contains exempt matter, is to be granted”. Section 58(2) suggests that the exemptions are to be taken at face value. That is consistent with the object of the FOI Act to create:
“… a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of person in respect of whom information is collected and held by departments and public authorities” (s. 3(1)(b))

Parliament has identified those essential public interests and the private and business affairs in the exemptions set out in Part IV of the FOI Act. Taken together, these bases lead us to conclude that s. 33(1) does not implicitly incorporate a public interest test. This is consistent with the conclusion reached by Neaves J as a Presidential Member in Throssell and Australian Archives (1987) 14 ALD 292, AAT 4000, 11 December 1987, at p. 18 in relation s. 33(1)(a) of the Archives Act, which equates with s. 33(1)(a) of the FOI Act. He adopted that conclusion in relation to s. 33(1)(a) of the FOI Act in Throssell and Department of Foreign Affairs (1987) 14 ALD 296, AAT 4001, 11 December 1987, at p. 10. The conclusion is also consistent with that reached by Deputy President Todd in Re Slater and Cox (Director-General, Australian Archives) (1988) 15 ALD 20 at 26 and Deputy President Johnston in Re McKnight and Australian Archives (1992) 28 ALD 95 at 114).

What is meant by the expression “would, or could reasonably be expected, to”? The meaning of the word “would” is clear. It means:
“… must as a logical or necessary consequence. … Be able to, be capable of (doing); have a (specified) ability, potential, or capacity …” (Shorter Oxford English Dictionary, 5th edition, 2002 (“SOED”))

The meaning of the words “could reasonably be expected to” has been considered in cases such as Attorney-General’s Department v Cockcroft (1986) 64 ALR 97 (Bowen CJ, Sheppard and Beaumont JJ), which considered s. 43(1)(c)(ii) of the FOI Act. It exempts from disclosure information concerning certain business or professional matters which “could reasonably be expected to” prejudice the future supply of information to the Commonwealth or an agency for the administration of a law or the administration of matters administered by an agency. 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.” (page 106)

In that case, Sheppard J said of the same issue:
“What is required is that the decision-maker act reasonably. For the document to be exempt his conduct must be taken to be that of the reasonable man. But then comes the difficulty. So acting, the decision-maker must expect that disclosure of the document could prejudice the future supply of information. 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.” (page 112)

Cockcroft’s case was considered by the Full Court of the Federal Court in Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163. It had been submitted that there were differences between the approach adopted by Bowen CJ and Beaumont J and that adopted by Sheppard J. Referring to the majority’s approach, the Full Court said:
“Their Honours did not suggest ... that it was sufficient that there be a possibility not irrational, absurd or ridiculous that the specified consequence would occur. Their Honours specifically rejected that approach, saying that the words ‘could reasonably be expected’ meant what they said. The practical application of their Honours’ view will not necessarily lead to a result different from that proposed by Sheppard J.
In the application of s43(1)(b), there would ordinarily be material before the decision-maker which would show whether or not the commercial value of the information would be or could be expected to be destroyed or diminished if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable.” (page 176)

Exemption provisions: s. 36 of the FOI Act – internal working documents

Section 36(1) provides that:
“Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act:
(a)would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister or Government of the Commonwealth; and
(b)would be contrary to the public interest.”

Other provisions of s. 36 qualifying the operation of s. 36(1) are not relevant in this case.

It is clear from the structure of s. 36(1) that both of its paragraphs must be satisfied before a document is an exempt document. Mr Pizer conceded that the Draft Health Concept of Operations and the Draft Health Synchronisation Matrix come within s. 36(1)(a) in that they would disclose matter of the sort set out in that paragraph. We agree and will not consider that aspect further.

While the expression “public interest” appearing in s. 36(1)(b) is not defined in the FOI Act, it is an expression that has received a considerable amount of consideration over the years both in the context of the FOI Act and otherwise. In the very early days of the operation of the FOI Act, Davies J set out a number of circumstances in which it will be “…more likely … that the communication should not be disclosed”, or in which disclosure “tends not to be in the public interest” (Re Howard and Treasurer of the Commonwealth) (1985) 7 ALD 626. Since then, there have been many authorities that have considered these circumstances. Many of them were carefully analysed by the Queensland Information Commissioner in Eccleston and Department of Family Services and Aboriginal and Islander Affairs [1993] QICmr 2, (1993) 1 QAR 60 at paragraphs 101 to 145. We will not repeat that analysis here but suffice it to say that those authorities tend to regard the observations made in Re Howard more as “… empiric conclusions … not intended to be used as determinative guidelines for the classification of information” (Re Raeand Department of Prime Minister and Cabinet (1986) 12 ALD 589 at page 597).

The authorities emphasise, as did Davies J himself in Re Howard, that the circumstances of each case must be examined. Indeed, the circumstances must be considered in light of prevailing views for, as Beazley J said in Australian Doctors’ Fund Ltd v Commonwealth of Australia (1994) 49 FCR 478, it is not an expression that is:
“… The question of what constitutes the public interest is not a static or
circumscribed notion. As was said in D. v National Society for the Prevention
of Cruelty to Children [1978] AC 171 at 230, per Hailsham LJ "the categories
of public interest are not closed...". See also Sankey v Whitlam per Stephen
J at 60.” (page 489)

For all that, it is relevant to consider some cases in which the notion of “public interest” has been considered and applied. It was considered by Beaumont J in Harris v Australian Broadcasting Corporation (1983) 50 ALR 551 when he said:
“In evaluating where the public interest ultimately lies in the present case, it is necessary to weigh the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper working of government and its agencies on the other (see Sankey v Whitlam (1978) 21 ALR 505; 142 CLR 1; Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 32 ALR 485; 147 CLR 39 at 52).” (page 561)

After considering authorities from the United States of America, Beaumont J continued:
“Given that the public interest is not a static concept, in my opinion, full disclosure of the reports, at this stage, would, on balance, be contrary to the public interest. The unchallenged evidence is that, in submitting her ‘interim’ reports, Miss Pearlman did not seek information or comment from the applicant. No doubt, this course was adopted for sound practical reasons, presumably in the interests of expedition. But an incomplete inquiry conducted on such a limited footing could only lead to the formation, at that point, of views or opinions of a tentative or provisional kind (cf Blackshaw v Lord [1983] 3 WLR 283 at 301). However, publication of such views or opinions, provisional as they may be, could create a misleading, perhaps unfair, impression in the minds of readers who do not have the benefit, if there be any, of knowing the response of the applicant. The formation of such impressions in the public mind could, in turn, influence the decision-makers in their review of the situation. In my opinion, the provisions of s 36(1) are satisfied in the present case so far as any opinion, advice or recommendation is expressed in the reports.” (page 563)

Beaumont J’s approach has been adopted and applied in various cases in the Tribunal. The essential points made by those cases were summarised in Re Kamminga and Australian National University (1992) 26 ALD 585 (O’Connor J, President, Mr Attwood and Mr Julian, Members) when the Tribunal said in considering public interest in the context of s. 36(1)(b):
“For para (b) to apply, it is necessary for the tribunal to find that disclosure would be contrary to the public interest. It is not the case that the tribunal has to be satisfied that disclosure is in the public interest: see Re Burns and Australian National University (1984) 6 ALD 193; 1 AAR 456 at 458. Deciding whether disclosure is contrary to the public interest requires a balancing of competing interests including the public interest in the applicant’s right to know (Re Peters and Department of Prime Minister and Cabinet (No 2) (1984) 5 ALN N306: Re Burns and Australian National University (1984) 6 ALD 193; 1 AAR 456), which is a different thing to the applicant’s personal interest in knowing. The tribunal must balance this against any adverse effect disclosure might have on the proper working of government or its agencies: Harris v Australian Broadcasting Tribunal (1983) 50 ALR 551; unsuccessfully appealed on other grounds at (1983) 51 ALR 581. The cases discuss a number of ways in which such an adverse effect might arise. However, it is necessary to consider the circumstances of each case. In the case of the university the public interest includes the maintenance of a high standard of scholarship. Considerations which apply to documents created for the purpose of policy making at a high level are not applicable in the present case.” (page 588)

The role of the Tribunal in reviewing a decision under the FOI Act

The right given to every person to have access to information is limited in the manner we have described. There is no correlating duty imposed on the agency to restrict the information that it releases. It may release whatever information it chooses even if a document containing that information would be an exempt document under the FOI Act and so a document to which a person does not have a right to have access. The right to access given by the FOI Act does not preclude an agency’s giving a person the privilege of being given access to it. Whether it gives that privilege is determined by an agency in accordance with other laws and practices. In view of s. 58(2), the Tribunal does not have the power to make that decision and is confined to determining whether the documents are exempt under the FOI Act.

REQUEST TO HEAR ASPECTS OF EVIDENCE IN PRIVATE SESSION

Ms Campbell submitted that Commander Coates should be able to give part of his evidence in a session that was closed to all but the Department and its officers and legal representatives, staff of Auscript and members and staff of the Tribunal. She sought to exclude both Mr Dunn and his legal representatives both from hearing that part of Commander Coates’ evidence and from seeing the documents claimed to be exempt. Her application was made on the basis of s. 35(2) of the AAT Act and referred to s. 63 of the FOI Act.

Reference was also made to s. 64(1). It provides that the T documents do not have to include the document claimed to be exempt. It also provides that the Tribunal may require its production for the purpose of inspecting it. The Tribunal must restrict access to the members, who heard the matter, or to a staff member of the Tribunal in the course of that staff member’s duties. Section 64(1) provides that “… if, upon the inspection, the Tribunal is satisfied that the document is an exempt document, the Tribunal shall return the document to the person by whom it was produced …” without permitting any person other than those we have mentioned to have access to it and without disclosing its contents.

We note that, at the conclusion of the hearing and citing s. 64(1), Ms Campbell asked for the return of the three documents claimed to be exempt. At that stage, we had inspected the documents but had made no decision as to whether or not they were exempt. We did not return them to the respondent and, in view of our not being satisfied as to their exempt status or otherwise, considered that s. 64(1) did not place us under an obligation to do so.

Section 63 of the FOI Act directs the Tribunal’s attention to s. 35(2) of the AAT Act. It requires the Tribunal to make such orders under that section as it thinks necessary. In deciding whether it thinks an order is necessary, the Tribunal must have:
“… regard to the nature of the proceedings and, in particular, to the necessity of avoiding the disclosure to the applicant of:
(a)exempt matter contained in a document to which the proceedings relate; or
(b)information of the kind referred to in subsection 25(1).” (s. 63(1))

The point is emphasised in s. 63(2)(b) where it is provided that, notwithstanding anything contained in the AAT Act:

“the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in subsection (1).”

Section 35(2) provides that:
“Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a)direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa)give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b)give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.”

The Tribunal has been given a discretion under s. 35(2). Parliament prescribed the parameters within which it must exercise that discretion in s. 35(3):
“… the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.”

So basic is the fundamental principle that, as a general rule, the Tribunal is required to take such steps as are reasonably necessary to ensure that the public nature of the hearing of a proceeding is preserved when a person participates in a hearing by telephone, closed-circuit television or any other means of communication (s. 35(1A) and 35A). There are only a handful of exceptions to the general rule. Parliament has prescribed them in relation to the Security Appeals Division (s. 35(1AA) and see s. 35AA), in cases in which the Commonwealth Attorney-General or a State Attorney-General issues a certificate that disclosure would be contrary to public interest on certain grounds or intervenes in the hearing on the same grounds (ss. 36, 36A, 36B, 36C and 36D), in cases in which Parliament has made particular provision to the contrary in legislation other than the AAT Act in relation to particular decisions reviewed by the Tribunal (e.g. Migration Act 1958, s. 501K) and in cases in which the Tribunal has made an order under s. 35(2) of the AAT Act.

It should also be noted that s. 39 of the AAT Act is subject to s. 35. It provides in part that:
“… the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”

In Kanina Banner Pty Ltd and Minister for Health and Ageing [2002] AATA 169 (Deputy President Forgie), explored the balance that s. 35 requires the Tribunal to reach. That balance is between the desirability of the Tribunal’s proceedings being in public and the contents of material received by, or lodged with, it being available to the public on the one side and the reasons for confidentiality on the other. There is no guidance in s. 35(2) as to how the balance should be reached but guidance is to be found in previously decided cases in the Federal Court and in the Tribunal. We will begin with what was said by Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247:
“… the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant – they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal’s powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.
An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must be a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s 36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorizes it to remove those impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases – that is to say, where ‘the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public’ cannot be applied. Some of these exceptional cases are statutorily defined: see, for example, the Insurance Act 1973 s 63(14).” (at 272-273)

On the view that we have taken of what was sought by Mr Dunn’s request, we do not need to consider whether any information that may, or may not, be in the Documents regarding the ADF capabilities provided on the basis of the casualty estimates and the location of their deployment is exempt from disclosure. If we are incorrect in that conclusion, we find that disclosure of that information would, or could reasonably be expected to damage the defence or security of the Commonwealth. We do so on the basis of the evidence of both Commodore Coates and Brigadier d’Hagé as well as of Mr Woolner. Those are matters that an adversary either would not know or may have only estimated. To give access to that information would be to add another piece to the jigsaw or to confirm what an adversary previously only estimated.

On the basis of the evidence of Commodore Coates, we consider that we should not release any information that may, or may not, be in the documents regarding the procedures used to formulate casualty estimates. On the basis of Commodore Coates’s evidence, we find that the process of estimating casualties is a standard military process. We do not decide this issue further for, having examined the Documents, we do not consider that there is any such information in those parts of them that are relevant to the request.

It follows that we have concluded that the information in the Documents that we regard as relevant to Mr Dunn’s request is not exempt pursuant to s. 33 of the FOI Act.

Would disclosure of the relevant parts of the Documents be contrary to the public interest within the meaning of s. 36(1)(b)?

It is conceded, and we find, that Documents 1 and 2 are documents that come within s. 36(1)(a) of the FOI Act. No claim is made in relation to Document 3. The next question is whether disclosure of Documents 1 and 2 under the FOI Act would be contrary to the public interest. In Re Robinson and Department of Employment and Workplace Relations [2002] AATA 715 (Deputy President Forgie), the concept of public interest was considered in general terms:

“38. As Ms Campbell submitted, the expression ‘public interest’ is extensively used in the FOI Act but has not been defined. Having regard to a cross-section of the authorities that have considered the expression both in Australia and in the United Kingdom over the years, it seems to me that it is incapable of precise definition. Rather, the authorities approach the issue by identifying particular issues that lie inside or outside the public interest while never drawing the boundary between the two. That approach reflects the changing qualities of the issues that arise in the community and was expressly recognised by Lockhart J in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 128 ALR 238 when he said:
‘The public interest is a concept of wide meaning and not readily delimited by precise boundaries. Opinions have differed, do differ and doubtless always will differ as to what is or is not in the public interest.’ (page 245)

…
41.          It has long been recognised that there may be competing public interests and that ‘Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests … and be very much a question of fact and degree.’ (Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 at 5 per Mason CJ, Wilson and Dawson JJ, emphasis added).
42.          The public interest has been considered in the context of the courts. It has been held that ‘…one feature and one facet of the public interest is that justice should always be done and should be seen to be done’ (Ellis v Home Office [1953] 2 QB 135 at 147). It has also been considered in a non-judicial context. That occurred in the case of Harris v Australian Broadcasting Corporation and Others (1984) 5 ALD 564 (Bowen CJ, St John and Fisher JJ) in considering an appeal from Beaumont J’s earlier judgement in Harris v Australian Broadcasting Corporation and Others (1983) 5 ALD 545. The Australian Broadcasting Corporation (‘ABC’) had decided that there should be an independent review of its legal department. To that end, it gave terms of reference to Miss Pearlman. She made two interim reports and gave a copy to Ms Harris for comment. Another officer of the legal department sought access to the reports and Ms Harris sought review of the ABC’s decision to grant access. Beaumont J had decided that the two interim reports were documents that would disclose matter in the nature of opinion, advice or recommendation and that they had been prepared for the purposes of the deliberative processes involved in the functions of the ABC. Disclosure of the reports would be contrary to the public interest. There was, however, material in the reports which was purely factual and so not exempt by virtue of s. 36(5). Beaumont J concluded that investigative material consisting of the underlying facts as perceived by Miss Pearlman at that stage of her enquiry was purely factual. Except in a few limited instances, the material consisting of recommendations was not purely factual.
43.          The notion of public interest was considered by Beaumont J in Harris when he said:
‘In evaluating where the public interest ultimately lies in the present case, it is necessary to weigh the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper working of government and its agencies on the other (see Sankey v Whitlam (1978) 21 ALR 505; 142 CLR 1; Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 32 ALR 485; 147 CLR 39 at 52).’ (page 554)

44. After considering authorities from the United States of America, Beaumont J continued:
‘Given that the public interest is not a static concept, in my opinion, full disclosure of the reports, at this stage, would, on balance, be contrary to the public interest. The unchallenged evidence is that, in submitting her “interim” reports, Miss Pearlman did not seek information or comment from the applicant. No doubt, this course was adopted for sound practical reasons, presumably in the interests of expedition. But an incomplete inquiry conducted on such a limited footing could only lead to the formation, at that point, of views or opinions of a tentative or provisional kind (cf Blackshaw v Lord [1983] 3 WLR 283 at 301). However, publication of such views or opinions, provisional as they may be, could create a misleading, perhaps unfair, impression in the minds of readers who do not have the benefit, if there be any, of knowing the response of the applicant. The formation of such impressions in the public mind could, in turn, influence the decision-makers in their review of the situation. In my opinion, the provisions of s 36(1) are satisfied in the present case so far as any opinion, advice or recommendation is expressed in the reports’ (page 556)

Beaumont J’s approach remained unchallenged on appeal.
45. Beaumont J’s approach has been adopted and applied in various cases in the Tribunal. The essential points made by those cases were summarised in Re Kamminga and Australian National University (1992) 26 ALD 585 (O’Connor J, President, Mr Attwood and Mr Julian, Members) when the Tribunal said in considering public interest in the context of s. 36(1)(b):
‘For para (b) to apply, it is necessary for the tribunal to find that disclosure would be contrary to the public interest. It is not the case that the tribunal has to be satisfied that disclosure is in the public interest: see Re Burns and Australian National University (1984) 6 ALD 193; 1 AAR 456 at 458. Deciding whether disclosure is contrary to the public interest requires a balancing of competing interests including the public interest in the applicant’s right to know (Re Peters and Department of Prime Minister and Cabinet (No 2) (1984) 5 ALN N306: Re Burns and Australian National University (1984) 6 ALD 193; 1 AAR 456), which is a different thing to the applicant’s personal interest in knowing. The tribunal must balance this against any adverse effect disclosure might have on the proper working of government or its agencies: Harris v Australian Broadcasting Tribunal (1983) 50 ALR 551; unsuccessfully appealed on other grounds at (1983) 51 ALR 581. The cases discuss a number of ways in which such an adverse effect might arise. However, it is necessary to consider the circumstances of each case. In the case of the university the public interest includes the maintenance of a high standard of scholarship. Considerations which apply to documents created for the purpose of policy making at a high level are not applicable in the present case.’ (page 588)”

In his dissenting judgment in Shergold v Tanner [2000] FCA 1420 (Black CJ, Burchett and Finkelstein JJ), Burchett J said:
“The public interest in the maintenance of confidentiality in the deliberative processes of government, that is to say in the formation of policy as distinct from its final statement and implementation, is well recognized, not only in Australia, but in other countries. In the United States, a corresponding exemption has been justified as promoting candour in policy discussions within a department of government: Coastal States Gas Corporation v Department of Energy (1980) 617 F 2d 854 at 866 (United States Court of Appeals, District of Columbia Circuit). The Court explained (ubi cit) that the exemption for a deliberative document looks to “whether it reflects the give-and-take of the consultative process”, and “covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency”. In Renegotiation Board v Grumman Aircraft Engineering Corp (1975) 421 US 168 at 184, White J, delivering the Opinion of the Supreme Court, said the law “distinguish[es] between predecisional memoranda prepared in order to assist an agency decision-maker in arriving at his decision, which are exempt from disclosure, and postdecisional memoranda setting forth the reasons for an agency decision already made, which are not.” In France, reports and surveys intended to assist governmental policy deliberations may be exempt from access under the French law of freedom of information: Democracy, Participation and La Transparence: Freedom of Information in France and Australia, Australian National University, unpublished thesis by A C Johnson (1999) at 124, 128. Whether, in the case of a document falling within the terms of the Australian provision in s 36, disclosure would be contrary to the public interest is, again, a question involving a significant policy element, which may have been thought appropriate for political decision.” (at paragraph 62)

In an earlier case of Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 23 AAR 142 at 155 to 157, Deputy President McDonald summarised the authorities regarding public interest in the context of the FOI Act:
“One of the early attempts to define what is constituted by the public interest, and one often quoted since, is to be found in Re Howard and Treasurer (Cth) (1985) 3 AAR 169 where at 178, the then President of the Tribunal (Justice Davies) listed the considerations as:
‘1.     The higher the office of the persons between whom the communications pass and the more sensitive the issues involved in the communication, the more likely it will be that the communication should not be disclosed.
2.      Disclosure of communications made in the course of the development and subsequent promulgation of policy tends not to be in the public interest.
3.      Disclosure which will inhibit frankness and candour in future pre-decisional communications is likely to be contrary to the public interest.
4.      Disclosure, which will lead to confusion and unnecessary debate resulting from disclosure of possibilities considered, tends not to be in the public interest.
5.      Disclosure of documents which do not fairly disclose the reasons for a decision subsequently taken may be unfair to a decision-maker and may prejudice the integrity of the decision-making process.’
The enunciation of the first four principles by Davies J has been criticised by some in subsequent decisions and academic critiques (see the citations at 41 of the decision in Eccelston’s [Eccelston and Dept of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 60] case and the detailed discussion carried out by the Information Commissioner with respect to the so-called ‘Howard principles’; also the discussion by the Information Commissioner of Western Australia in Veale and Town of Basendean (unreported, Decision No D00494, 25 March 1994)), but accepted by others. In the context of determining whether those principles are still of paramount consideration, what is often not recognised is the paragraph of the decision immediately following the statement of principles, which is in the following terms:
‘The FOI Act has been in operation since 1 December 1982. As was said in Re Murtagh and Commissioner of Taxation (Cth) (1984) 1 AAR 419; Re Chandra and Minister for Immigration and Ethnic Affairs (1984) 6 ALN257, and Re Lianos and Secretary, Department of Social Security (1985) 2 AAR 503, the Tribunal has not yet received evidence that disclosure under the FOI Act has in fact led to a diminishment in appropriate candour and frankness between officers. As time goes by, experience will be gained of the operation of the Act. The extent to which disclosure of internal working documents is in the public interest will more clearly emerge. Presently, there must often be an element of conjecture in a decision as to the public interest. Weight must be given to the object of the FOI Act.’
As is evident from the above passage, Davies J did not see the principles as being immutable but rather envisaged a flexible approach, governed by time and experience, being taken. A similar conclusion as to the significance of the above quoted paragraph was reached by the Queensland Information Commissioner in Eccleston’s case at 38, par 106.
The difficulties associated with giving substance to the otherwise amorphous concept of public interest were highlighted in the Australian Law Reform Commission publication, Report No 70, Administrative Review Council, Report No 40, “Open Government: a review of the federal Freedom of Information Act 1982”, at 96, in which the following factors were nominated as being of possible relevance in determining the public interest, namely:
‘Ÿ     the general public interest in government information being accessible
•whether the document would disclose the reasons for a decision
•whether the disclosure would contribute to debate on a matter of public interest
•whether disclosure would enhance scrutiny of government decision making processes and thereby improve accountability and participation.’
and the following as possibly not being relevant:
‘Ÿ      the seniority of the person who is involved in preparing the document or who is the subject of the document
•that disclosure would confuse the public or that there is a possibility that the public might not readily understand any tentative quality of the information
•that disclosure would cause a loss of confidence in the government
•that disclosure may cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.’
As will be seen from the above, a number of the principles listed by Davies J in Re Howard stand, as time has passed and experience in administration of the FOI Act has grown, to be considered differently than was the case when they were first pronounced – a fact readily recognised by the learned judge at the time the decision was given.” (at 156-159)

It is clear that the notion of public interest is not static. On the one hand, there is a very real public interest in the people knowing why their country has engaged in a war and is currently engaged in what Commodore Coates described as war-like activities. The answer to that question is not relevant in this case but the fact that it is asked is relevant. There is a common awareness that war generally leads to casualties on all sides. Even though engaging in war is not a decision for the individual Australian citizen to make, the Australian public is entitled to assess the decision that is made on their behalf. There is a public interest in their doing so. In making that assessment, there is a public interest in their knowing the extent of the risks that may be faced by their own servicemen and women. There is a public interest in knowing how many of those servicemen and women are estimated to become casualties as a result of engaging in the war or war-like procedures whether they become casualties as a result of battle or non-battle incidents.

There is also a public interest in ensuring that Australia’s servicemen and women are not exposed to any greater danger than that which they already face. In particular in the context of this case, that they are not exposed through disclosure of information whether under the FOI Act or otherwise. In view of our findings regarding the claim for exemption under s. 33, this is a public interest that carries little weight in relation to the information that we consider comes within the terms of Mr Dunn’s request.

Commodore Coates said that the information in Document 3 remains as current and referable to Operation Catalyst as it did to Operation Falconer. Brigadier d’Hagé does not accept that but, having examined the document and considered the evidence, we are satisfied that it is current. That is so despite its being 18 months old and despite there now being a general acceptance that any WMDs that have been found in Iraq are World War II vintage chemical weapons for which there is little Iraqi capacity or capability to use. We base that finding on Commodore Coates’ evidence and that of Brigadier d’Hagé.

The fact that Document 3 continues to be relevant is relevant to our decision regarding Documents 1 and 2. We accept that they are documents prepared as part of the process of preparing Document 3. On the basis of Commodore Coates’ evidence, we accept that they may contain inaccuracies or be incomplete. In the context of a situation in which Australia is engaged in war-like operations under Operation Catalyst, we consider that only one set of casualty estimates should be released at any one time. Where, as is the case with Document 3, the final set of casualty estimates is available, we consider that to have preliminary drafts of them released at the same time would be confusing and generate unnecessary public debate. In our view, the public interest in obtaining access to draft figures is outweighed in the circumstances of this case by the need to avoid confusion. Therefore, we have concluded that access to those parts of Documents 1 and 2 that we consider come within the terms of Mr Dunn’s request is contrary to the public interest. They are exempt under s. 36(1).

Should the operation of the decision be deferred?

It remains for us to consider whether we should specify that the decision is not to come into operation until a later date. We may do so under s. 43(5B) of the AAT Act. If we do not make such an order, our decision comes into operation forthwith upon the giving of the decision (AAT Act, s. 43(5A)). Ms Campbell submitted that we should make such an order in order to enable the Department to consider whether it should lodge an appeal. She observed that the Legal Services Direction counsels against government agencies lodging protective appeals. If the Tribunal were not to defer the implementation of our decision or to defer it for too short a period, the Department will be pushed to lodge a protective appeal in breach of the Legal Services Direction. It needs to be kept in mind that the grounds of the exemptions claimed in this case are among the most serious that can be made.

Neither party referred to previous authorities and we are aware of only a handful that have considered s. 43(5B) of the AAT Act. The power has been used on occasion to defer the implementation of the Tribunal’s decision to give an applicant access to documents under the FOI Act and so give a respondent an opportunity to consider whether or not to lodge an appeal and to lodge any appeal before it is required to give access to those documents e.g. Re Throssell and Australian Archives, Re Strang and Department of Immigration and Ethnic Affairs & Anor (1994) 36 ALD 449 at 469 (Senior Member Dwyer), Re Robinson and Department of Employment and Workplace Relations. A reading of previous authorities indicates that deferral of the operation of a decision in FOI cases is not a general rule.

Previous authorities exploring the limits of the Tribunal’s power under s. 43(5B) were explored by the Tribunal in Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing [2004] AATA 326, 29 March 2004 (Deputy President Forgie). They include Re Fund for Animals Ltd and Minister for Arts, Heritage and Environment (No. 2) (1986) 9 ALD 622 (Gallop J, Senior Member Balmford and Mr Williams, Member), Re Parker and Tax Agents’ Board of New South Wales (1995) 95 ATC 2174 (Deputy President McMahon) considered in Marnotta. Re Wegner and National Registration Authority for Agricultural and Veterinary Chemicals (2002) 66 ALD 762 (Senior Member Fayle) is the only one of the three authorities to consider s. 43(5B) in the context of the FOI Act. What may be gleaned from these cases is that, in the exercise of the power under s. 43(5B), matters to be considered may include:
there is a public interest in the Tribunal’s following the normal course (Parker);
the parties’ interests are balanced against that public interest but are subordinate to them (Parker);
whether deferral of the Tribunal’s decision assists in any way in the resolution of the matter or the orderly resolution of the parties’ affairs (Marnotta);

We would add that administrative decision-making is a continuum and the Tribunal’s role is only a part of that continuum Jebb v Repatriation Commission (1988) 80 ALR 329 (Davies J). The normal course is that administrative decisions take effect upon their being made. Policy interests that may affect what is the normal course may extend to those inherent in the statutory framework within which the decision is being reviewed or in the particular factual framework of the particular case.

In our view, the proper balance to be achieved in this case is by deferring the operation of the decision until 4.00 pm on Tuesday, 5 October 2004. That is a small deferral of the operation of our decision but it is a deferral. It represents to us the proper balance between giving the Department an opportunity to consider our reasons and, if it wishes, to lodge an appeal and seek a stay of our decision and the interests of Mr Dunn. His being a journalist is irrelevant in considering his application under the FOI Act but his interest in wishing to use the information he receives before Election Day on 9 October 2004 is a relevant consideration in this aspect of the case. We recognise that there is a public holiday in the Australian Capital Territory (“ACT”) on Monday, 4 October 2004 but, on Thursday, 30 September 2004, both parties were notified of the time at which it would be handed down. The Department’s solicitor is located in Victoria where there is no public holiday although its other legal representatives and relevant officers are located in the ACT. That may cause difficulties for the Department but, the timing of the operation of our decision also gives the Department time to comply with it before the close of business on Tuesday 5 October 2004 if they have not taken appropriate steps in the Federal Court.

Decision

For the reasons we have given, we:
1.set aside the decision of the respondent dated 24 February 2004; and
2.substitute a decision that:
(1)the following information in the Documents is irrelevant to the applicant’s request for access made under the Freedom of Information Act 1982:
(a)Document 1: all that information identified in paragraph 11 of the affidavit of Commodore Coates being Exhibit 11;
(b) Document 2: all information other than:
Page 1:the dot point in line 8 of the text
Page 3:the full sentence in lines 5 and 6 and the dot point in line 7 of the text
Page 5:the Diagram
Page 7:the Chart
Document 3: all information other than:
Page B-5:paragraph 14 including its heading and Table
(2)in so far as they contain information relevant to the applicant’s request for access under the Freedom of Information Act 1982, Documents 1 and 2 are exempt under s. 36; and
(3)in so far as it contains information relevant to the applicant’s request for access under the Freedom of Information Act 1982, Document 3 is not exempt under either ss. 33 or 36; and
3.defer the operation of the decision until 4.00 pm on Tuesday, 5 October 2004.

I certify that the one hundred and forty-two preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,

Mr C Ermert (Member)

Signed: ...............................................................

R. Crook Associate

Date of Hearing  21 and 22 September 2004
Date of Decision  4 October 2004
Counsel for the Applicant             Mr J. Pizer
Solicitor for the Applicant            Corrs Chambers Westgarth
Solicitor for the Respondent         Ms M. Campbell
Solicitor for the Respondent         Australian Government Solicitor

FORM OF UNDERTAKING

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2004/341
GENERAL ADMINISTRATIVE DIVISION     )

Re MARK DUNN

Applicant

AndDEPARTMENT OF DEFENCE
Respondent

UNDERTAKING

I, [insert name], counsel [or solicitor, as the case may be] for the applicant give this undertaking to the Tribunal to enable me to take part in the closed session of the proceedings held on 22 September 2004 (“closed session”).

I will keep confidential the information given in the closed session whether it be in oral or documentary form (“the information”).

I will not disclose the information to an unauthorised person.

Except for the purposes of the proceedings, I will not copy or transcribe the information into any document.

I will use the information solely for the use of these proceedings.

I will take all reasonable steps to ensure that an unauthorised person does not have an opportunity to have access to the information.

I will hand to the Tribunal any documents created in accordance with paragraph 3 above at the conclusion of submissions in these proceedings.

The undertaking operates from the time I give the undertaking until I am released from the undertaking.

I will be released from the undertaking, in whole or in part, only upon the earliest of the following events:
(a)I am released from the undertaking in writing by the respondent;
(b)I am released from the undertaking by order of the Tribunal or a Court; or
(c)to the extent that the information is contained in them, the documents sought by the applicant under the Freedom of Information Act 1982 are released unconditionally to him [or her or it, as the case may be] by the respondent, either voluntarily or in compliance with an order of the Tribunal or a Court.
For the purposes of the undertaking, “unauthorised person” means any person other than:
(a)the principal officer of the respondent and any other officer of the respondent who is authorised by the principal officer to have access to the information.
(b)the legal representatives of the respondent;
(c)a member of the Tribunal as constituted in this proceeding or a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of that staff;
(d)an officer of Auscript; and
(e)any person who has given an undertaking in identical terms to this undertaking in these proceedings.
For the purposes of the undertaking, “documents” means those documents identified in the Schedule of Exempt Documents prepared by the respondent and filed in the Tribunal on 16 September 2004.

Dated: [Insert date]

[Signature]
…………………………
[Name]