Re McKinnon and Secretary, Department of Foreign Affairs and Trade

[2004] AATA 1365

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1365

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No Q2003/821

GENERAL ADMINISTRATIVE DIVISION	)
Re	MICHAEL McKINNON

Applicant

And SECRETARY, DEPARTMENT OF FOREIGN AFFAIRS AND TRADE

Respondent

DECISION

Tribunal Justice Downes, President

Date21 December 2004

PlaceSydney

Decision The decisions under review are affirmed in full although on the slightly different grounds for some of the documents which appear from these reasons.  I find that there exist reasonable grounds for the claims to exemption made in the conclusive certificate given by the Minister for Foreign Affairs and Trade.

........[sgd Garry Downes]........

President

CATCHWORDS

FREEDOM OF INFORMATION – access to documents – conclusive certificate – reasonable grounds exist for claims that disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth – reasonable grounds exist for claims that disclosure would divulge information or matter communicated in confidence by or on behalf of a foreign government – decision affirmed

FREEDOM OF INFORMATION – access to documents – internal working documents – disclosure would be contrary to the public interest – decision varied

FREEDOM OF INFORMATION – access to documents – Cabinet documents – disclosure would involve disclosure of deliberation or decision of Cabinet – not purely factual material – decision varied

FREEDOM OF INFORMATION – access to documents – personal privacy – disclosure would involve unreasonable disclosure of personal information – decision affirmed

FREEDOM OF INFORMATION – access to documents – legal professional privilege – advice must be independent – practising certificate not required – decision affirmed

Administrative Appeals Tribunal Act 1975 (Cth) s 33

Freedom of Information Act 1982 (Cth) ss 7, 22, 33, 34, 36, 41, 42, 58, 58A, 58E and 64

Judiciary Act 1903 (Cth) s 55B

Australian Hospital Care Pty Ltd v Duggan (No 2) [1999] VSC 131

Commonwealth v Construction, Forestry, Mining and Energy Union (2000) 171 ALR 379

Maher and Attorney-General’s Department (1985) 7 ALD 731

McKinnon and the Secretary, Department of the Treasury [2004] AATA 1364

National Tertiary Education Industry Union v Commonwealth (2001) 111 FCR 583

Vance v Air Marshal Errol John McCormack in his capacity as Chief of Air Force and The Commonwealth [2004] ACTSC 78

Waterford v The Commonwealth (1987) 163 CLR 54

REASONS FOR DECISION

21 December 2004 Justice Downes, President             

Introduction

The Section 33 Certificate

The Issues

The Structure of the Reasons

The Hearing

Section 33

Section 34

Section 36

Section 41

Section 42

Section 7

Section 22

Conclusion

The Schedule

Introduction

1.       Michael McKinnon is the Freedom of Information Editor of The Australian newspaper.  On 31 March 2003 Mr McKinnon applied to the Department of Foreign Affairs and Trade for access to:

“(1)(a)      correspondence with the United States Government about alleged al-Qa’ida fighter David Hicks, 27 and

(b)      any advice to the Australian Government about whether Hick’s release should be sought by the Australian Government.

(2)       advice from Commonwealth Attorney Generals or other sources in relation to whether Mr Hicks is legally held by the United States Government at Guantanamo Bay in Cuba.”

The Department identified 21 documents as falling within the request.  On 18 July 2003 Mr McKinnon was notified of a decision that all 21 documents were exempt in full.  Mr McKinnon sought internal review of that decision.  On 11 September 2003 he was notified that the decision had been affirmed.  Mr McKinnon sought review of the decision in the Tribunal.

2. Further searches within the Department have led to the discovery of many more documents than were originally under consideration. I am accordingly concerned with 107 documents rather than 21. The documents are identified in a schedule attached to these reasons. It can be seen that seven documents (Nos 2, 20, 46, 71, 87, 88 and 104) have been released in full. Parts of some documents are claimed not to be relevant. Exemption from disclosure of part or all of the remainder of the documents is claimed under ss 33, 34, 36, 41 and 42 of the Act. Section 33 is concerned with documents affecting national security, defence or international relations. Section 34 is concerned with Cabinet documents. Section 36 is concerned with internal working documents the release of which would be contrary to the public interest. Section 41 is concerned with documents affecting personal privacy. Section 42 is concerned with documents subject to legal professional privilege.

The Section 33 Certificate

3.       Pursuant to subs 33(2) the Minister for Foreign Affairs has given a certificate relating to the documents for which exemption is claimed under that section.  Such a certificate can be given when a Minister “is satisfied that a document is an exempt document” because disclosure of the document:

“(a)     would, or could reasonably be expected to, cause damage to:

(i)        the security of the Commonwealth;

(ii)       the defence of the Commonwealth; or

(iii)      the international relations of the Commonwealth; or

(b)       would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth” (subs 33(1)).

Such a certificate “establishes conclusively that the document is an exempt document” (subs 33(2)).

4.       Subsection 58(4) of the Act permits application to be made to the Tribunal for review of a decision refusing access to a document where there is a certificate under subs 33(2).  The role of the Tribunal is to “determine the question whether there exists reasonable grounds for [the] claim” that the document is an exempt document under s 33.  If the Tribunal determines that reasonable grounds do not exist the Minister must make a decision to revoke or not to revoke the certificate.  In the latter event the Minister must lay before each House of the Parliament a notice stating “the findings of the Minister giving the notice on any material question of fact, the material on which those findings were based, and the reasons for the decision” (subs 58A(4)) and read the notice in the House in which the Minister sits (subs 58A(3)).

5. Immediately prior to the hearing of this application I heard an application by the same applicant, Mr McKinnon, for review of decisions that documents held by the Department of the Treasury were exempt from production under the Act. Exemption was claimed for most of the documents under s 36. That section permits a Minister to give a similar certificate to the certificate provided for under s 33.

6. Provision is made in s 58 for the Tribunal to reconsider a s 36 conclusive certificate. Although the relevant provision is contained in subs 58(5) and is not identical to the provision relating to certificates under s 33, the applicable test is the same. The only relevant differences between the two provisions are the presence of a requirement in subs 58(5) that the Tribunal must be satisfied that the document is a document to which par 36(1)(a) applies before it undertakes the determination of the question and the specification of the way in which the claim is identified in the posing of the question. Subsection 58(4) poses “the question whether there exist reasonable grounds for that claim” where the subsection has previously referred to “a document that is claimed to be an exempt document under section 33, 33A, 34 or 35” while subs 58(5) poses “the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest”.

7.       I will publish my decision in the matter in which Mr McKinnon is seeking treasury documents (McKinnon and the Secretary, Department of the Treasury [2004] AATA 1364) at the same time as I publish this decision. In the Treasury decision I have discussed the operation of subs 58(5). Much of that discussion is relevant to this application. I will not repeat it in these reasons. However, I will approach this matter on the same basis as I have outlined in the Treasury matter.

8.       The certificate under s 33 in the present matter is in the following form:

“a.Disclosure of the documents or parts of the documents as listed in the Schedule would or could reasonably be expected to cause damage to the international relations of the Commonwealth; or

b.Disclosure of the documents or parts of documents divulge information or matter communicated in confidence by or on behalf of a foreign government or an authority of a foreign government to the Government of the Commonwealth, or to a person receiving the communication on behalf of the Commonwealth.”

9.       Attached is a schedule adapted from the schedule to the conclusive certificate, from a schedule furnished by the respondent and from the documents themselves.  The composite schedule covers all the documents which I need to consider.  The ground or grounds relied upon pursuant to the certificate can be seen in the final column.  The column “Nature of damage” is taken verbatim from the schedule to the conclusive certificate.  There are 107 documents in all although the last document is No 106.  One document is numbered 22A.  Although documents numbered 11, 13 and 33 were not listed in the schedule furnished by the respondent, they have been included in the attached schedule and they will be considered along with the balance of the documents.

10.     Apart from the question whether there is material in some documents which should be excluded as irrelevant to the request (s 22) the respondent relies upon the grounds for exemption specified in five sections of the Act (ss 33, 34, 36, 41 and 42).  In most cases at least two grounds are relied upon.  More than two grounds are frequently relied upon. The grounds normally relate to part only of the text.  The grounds frequently overlap.  The result is that I have carefully examined approximately five hundred pages which are subject to claims of exemption.  I have had to consider up to five separate grounds of objection for each page.  The grounds often overlapped.  Many times there were multiple grounds of two or three lines each to a page.  Reading and understanding the documents has taken a great amount of time.  The process of examining each page against a number of claims has also taken a great deal of time.

The Issues

11. Mr McKinnon appeared in person. His evidence included a statement by a solicitor, Stephen Kenny, who represents Mr Hicks, relating to the circumstances of Mr Hicks and the importance of his gaining access to information relating to Mr Hicks. Mr McKinnon put written and oral submissions to me. These submissions drew attention to the legislative elements of s 34 and asserted that drafts of Cabinet documents were not within the section. The submissions stated that documents must have been brought into existence for the purpose of submission for consideration by Cabinet. The submissions stated that documents which ceased to be proposed for submission to Cabinet were also outside the section. The submissions distinguished documents prepared for the assistance of Cabinet from documents which constituted the deliberations of Cabinet. They reminded me that documents falling within pars 34(1)(a)-(c) containing purely factual material were outside the section (subs 34(1A)). With respect to s 36 Mr McKinnon put submissions relating to the merits and relied upon what had been submitted in McKinnon and the Treasury. With respect to s 42 he asserted that since the principal persons relied upon as giving legal advice did not hold practising certificates the exemption provided for in s 42 did not apply. The submissions relating to the merits of the s 36 issues did not address particular documents. Indeed, apart from informing me that he did not press the claim with respect to one word claimed to be exempt pursuant to s 41 in document 26, Mr McKinnon put no submissions to me about actual documents.

12.     I make no criticism of this approach by Mr McKinnon.  However, it means that apart from dealing with the particular matters which Mr McKinnon did raise my task is to consider the documents for myself after taking into account any matters of construction or application which seem to me to arise. 

The Structure of the Reasons

13.     Given the number of documents, the number of grounds and the lack of specific issues, expansive reasons could be very long.  However, I do not think that such reasons are called for.  In the absence of a specific issue it seems to me that my task will best be achieved by my simply stating whether I do or do not think that reasonable grounds exist for the claims made in the conclusive certificate and whether documents and parts of documents are exempt by virtue of the sections relied upon.  I am conscious of the requirement in the Administrative Appeals Tribunal Act 1975 that proceedings “shall be conducted with as little formality and technicality, and with as much expedition” as the requirements of the Act and other legislation “and a proper consideration of the matters before the Tribunal permit” (subs 33(1)).

14. I have copies of all documents I need to consider. The documents not subject to the certificate were produced pursuant to s 64. For reasons similar to those which motivated me in McKinnon and the Treasury I required production, pursuant to s 58E, of the documents and parts of documents covered by the certificate. I have read each of the documents carefully noting as to each which parts are subject to which claims.

15.     So far as the s 33 certificated claims are concerned I do not have to address such a broad value judgment as is required by a test calling for examination of the “public interest”.  Undoubtedly a value judgment is required by the assessment of what might “damage international relations” pursuant to par 33(1)(a) but it is not so open-ended as addressing what is in the public interest.  The issues arising under par 33(1)(b) are even more confined.

16.     Another important matter in determining how my reasons should be cast is the fact that I must not disclose matter which is exempt and I am bound with respect to matter the subject of the certificate not to disclose material contrary to s 58C.  I dealt with this in my reasons in McKinnon and the Treasury.  I received evidence and submissions from the respondent with respect to the conclusive certificate claim which were not disclosed to the applicant.  I can say that the evidence given in private was supportive of the claims made in the conclusive certificates.

17.     In dealing with the grounds of exemption I have addressed the descriptions of the documents in the schedule.  I find that they accurately summarise the documents and I adopt the descriptions as part of my reasons.  However, in every case I have based my decision on an actual reading of the document and not merely the description of it.

The Hearing

18. This matter was originally heard in Canberra on 27 and 28 July 2004. Written submissions from the respondent were received on 18 August and from the applicant on 31 August. On 22 October 2004, after initial consideration of the matter, I required production of all the documents which had not previously been produced. I did so pursuant to s 58E of the Act. Paper copies of the documents were produced on 29 October. This was followed by production of a paper consolidated set of all document on 8 November 2004.

Section 33

19.     Approaching my task in the way I have determined it to be in McKinnon and the Treasury I find, as to each part of each document covered by the certificate, that there is a factual basis to support each ground and that there exist reasonable grounds for the claimed exemption.

20.     It cannot be doubted that the subject freedom of information request raises sensitive issues of foreign relations.  It is not difficult to infer that information or matter passing between Australia and the United States on the topic was communicated in confidence (Maher and Attorney-General’s Department (1985) 7 ALD 731 at 739-740 per President Davies J). There is evidence before me to support the inference. Communications by the United States Government to the Australian Government which are covered by the conclusive certificate are accordingly within the subs 58(4) test under par 33(1)(b). The documents subject to the conclusive certificate and claimed to be exempt under par 33(1)(a) all relate to David Hicks and to dealings with respect to his case, mostly dealings with the United States Government. There is evidence before me that release of this information could reasonably be expected to cause damage to the international relations of the Commonwealth with the United States Government. The evidence that disclosure could cause damage to Australia’s international relations is rational – it is based on reason, or reasonable. The evidence is credible. Accordingly, the claim under subpar 33(1)(a)(iii) satisfies the subs 58(4) test.

21.     It is important to note that the issue before me does not focus on the nature of the matter or information in the documents or upon the public interest in knowing it.  The focus is on process: would disclosure harm international relations or release material communicated in confidence.  The importance of the matter or information undoubtedly has significance, but only if it affects the actual ground.  It follows that there may be information which it would be very much in the public interest to disclose because of its interest to public debate but which the legislation, properly administered, requires not to be disclosed for reasons not related to its importance.  The focus of persons making freedom of information applications is on what the material will disclose.  The focus of those deciding whether disclosure should be made is on the requirements of the legislation.  Not only are these two kinds of considerations quite different – they will frequently conflict. 

22.     It is accordingly no answer to the decisions which I am reviewing that the information is very important, or that the public has an interest in reading it, or that its release may have relevance to the proper administration of justice in the case of David Hicks.  That is not what the statute directs decision-makers to address.  Indeed, the importance of a matter to the public will frequently increase the likelihood that its release might damage international relations.

23.     The documents which caused me greatest concern amongst those subject to the conclusive certificate were documents setting out material to which there was no objection to its being made public.  One was a report of a discussion with a United States official.  Another was a communication from a United States Government department to foreign embassies in Washington.  The latter is marked “Unclassified”.  It is plain that the matter disclosed in the documents is not confidential.  It has probably all been published.  But that is not the basis for the claims in the conclusive certificate.  The claims are associated with the way in which the material was communicated and whether release of the documents, as opposed to the information contained in the documents, is exempted.  An important aspect is that the actual circumstances of the communications and the medium of the communications was not intended to be disclosed; merely the information which formed part of the communications.  The evidence is that both these documents fall within both grounds claimed for exemption.  I find that reasonable grounds exist for the claimed exemptions based on the circumstances and means of disclosure even though some of the matter contained in the documents is not confidential.

Section 34

24. Section 34 relates to Cabinet documents. For present purposes it provides that a document is an exempt document if it is:

“34(1)  (b)       an official record of the Cabinet; … or

(d)a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published”.

By subs 34(6) the Cabinet includes a committee of the Cabinet.

25. Although subs 34(2) provides for conclusive certificates no conclusive certificate was given in the present case. Accordingly, my task is the task of merits review as provided for in subs 58(1).

26. Only one document is claimed to fall under par 34(1)(b). It is document 22A which is a Cabinet minute. The document was inspected by me during the hearing. It falls within the paragraph. It is not within subs 34(1A). It is an exempt document.

27.     There are 14 other documents claimed to be exempt under par 34(1)(d).  The claim relates to part only of each document.  The documents are numbered 19, 22, 24, 25, 30, 36, 37, 44, 47, 49, 50, 51, 62 and 89.  Document number 62 is also claimed as to part to be exempt under par 34(1)(c) as a copy of a document submitted to a committee of the Cabinet having been brought into existence for that purpose.

28.     The parts of the following documents claimed to be exempt under par 34(1)(d) are clearly within the section: documents 24, 25, 30, 36 and 37.  Document 30 refers to “Ministers” but I am satisfied by the affidavit of Myra Croke that this refers to a Cabinet meeting.  The identified part is exempt.

29. Page 5 of Document 19 is a briefing note to the Minister for Foreign Affairs. Whether or not he took it to a Cabinet meeting is only speculation. If he did, what was discussed or what deliberations took place is mere speculation. Ms Croke has engaged in such speculation in her affidavit. However, it remains speculation, even if it is informed speculation. I do not think it can be said that a briefing note to a Minister, without more, satisfies par 34(1)(d) by disclosing deliberations or decisions of Cabinet. However, I must deal with this document again, under s 36.

30.     Document 22 is in a different category.  Its components were created before the relevant Cabinet meeting.  However, they refer to both a meeting of the National Security Council, which is a Cabinet Committee, and to a meeting of the Cabinet itself.  Ms Croke says the minutes of the relevant meetings reflect the material in the document.  The parts claimed are exempt under par 34(1)(d) (see eg. Commonwealth v CFMEU (2000) 171 ALR 379 at 390 [42] per Black CJ, Tamberlin and Sundberg JJ and National Tertiary Education Industry Union v Commonwealth (2001) 111 FCR 583).

31. Part of the material in Document 44 plainly falls within par 34(1)(d). Other parts do not, on their face, disclose any deliberation or decision of Cabinet. However, those parts are so closely associated with the exempt parts that exempting the latter under s 34 and disclosing the former would amount to disclosing deliberations or decisions of Cabinet. I accordingly find that the identified parts of Document 44 are exempt. Page 1 of Document 49, page 8 of Document 50 and page 10 of Document 51 are in the same category and the identified parts are exempt. The parts claimed on pages 1 and 2 of Document 50 and pages 3 and 4 of Document 51 are clearly within the section and are exempt.

32.     The parts of Document 47 for which exemption is claimed are entitled to exemption on the same basis as Document 22.

33. I have already upheld the conclusive certificate claim for all of Document 62 apart from the first paragraph. Exemption is claimed for pages 3 and 4 under par 34(1)(c). It is the only par 34(1)(c) claim. Exemption is claimed for pages 1 and 2 under par 34(1)(d). I have the same problem with these two claims that I had with Document 19. The documents do not refer to Cabinet or anticipate Cabinet deliberations or decisions except for one reference to the possibility of a submission to Cabinet. I do not consider any of Document 62 to be exempt under s 34. I must consider the first paragraph under s 36.

34.     The sentence claimed to be exempt on page 3 and on page 10 of Document 89 are clearly within par 34(1)(d).

Section 36

35. No conclusive certificate has been issued under subs 36(3) in this matter. The matter is accordingly to be dealt with under subs 58(1) and not, as in McKinnon and the Treasury, under subs 58(5).

36. I have read each of the documents and I have read the evidence relating to them. I find that they are each within par 36(1)(a) and that the section is not excluded by subs 36(5) or (6). I must consider whether disclosure would be contrary to the public interest.

37.     By its written submissions the respondent has relied on six grounds.  The grounds and documents to which each ground is referable are as follows:

“Ground 1

These documents (or parts of documents) record the advice or material prepared in relation thereto considered by Ministers, including the Minister for Foreign Affairs, the Minister for Trade and the Attorney-General.  It is submitted that Australian Government officials must be able to communicate directly, freely and confidentially with responsible Ministers on issues which are considered to be of ongoing sensitivity, which are controversial and which affect Ministers’ portfolios.  The release of such documents would undermine the operations of the parliamentary process of the Westminster-based system of government and disclosure would be contrary to the public interest.

Documents:

1 7 12 14 16 19 21 22 36 37 39 40 42 44 47 48 49 50 51 52 53 62 68 70 78 79 80 90 96

Ground 2:

These documents (or parts of documents), if disclosed, would be misleading and potentially confusing, given that they were prepared at an early stage of the deliberative process.  The preliminary understanding expressed in the documents have in many cases, been overtaken by events, or amended after further consideration.  Decision-making processes are multi-layered and many of the documents reflect partially considered matters and tentative conclusions in a rapidly evolving situation.  Should these documents be released, they could be taken to represent incorrectly the final position of the Australian Government concerning Mr Hicks when the advice or the conclusions may not have been accepted or be the reason for the decision taken.

Documents:

1 7 16 25 29 40 42 69 90

Ground 3:

The respondent submits that officers should be able to do freely in written form what they could otherwise do orally, in circumstances where such oral communication would remain confidential.  Such written communications relating to decision-making and policy formulation processes ensure that a proper record is maintained of the considerations taken into account.  If released for public scrutiny, officers in the future would be reluctant to make a written record, which would be to the detriment of these processes and the public record.  This would be contrary to the public interest.

Documents:

1 7 12 14 16 19 21 22 29 36 37 40 42 44 47 48 49 50 51 52 53 62 68 69 70 78 79 80 90 96 99

Ground 4:

Disclosure of these documents (or parts of documents) would be contrary to the public interest because it would disclose material which subsequently formed part of the deliberations of Cabinet or would disclose the deliberations or decisions of Cabinet.  Disclosure would undermine the confidentiality of Cabinet and render nugatory the Cabinet exemption.

Documents:

7 22 36 37 44 49 50 51 62

Ground 5:

Disclosure of these documents (or parts of documents) would be contrary to the public interest because it would disclose confidential communications and consultation at the highest levels of government on a most sensitive and controversial matter.  The handling of Mr Hicks’ detention is an extremely sensitive matter in which great care must be taken to ensure that the Government can make fully informed decisions regarding its citizens who have been detained during the war against terrorism.  Were these communications to be disclosed it (sic) there is a real likelihood that it would inhibit the future development of Australia’s approach to matters of this kind including those relating to Mr Habib.  The decisions taken by the Australian Government on how to approach negotiations with the US and other foreign governments rely on the Australian Government being able to consider different options and methods of approach in the knowledge that it can explore all possibilities and determine fall back positions without the entities with whom negotiations will be undertaken knowing of them.

Negotiations by Australia would be undermined and Australia would be at a complete disadvantage were the thinking behind the negotiation positions to be known by the other party to the negotiation with whom negotiations may well take place in the future.  Other negotiations in the future would be disadvantaged were foreign governments to know the kinds of issues which the Australian Government considers in such matters.  It would be contrary to the public interest were the Australian Government not able to protect its negotiating position.

Documents:

24 25 29 34 39 44 49 50 69 78 79 80 89 99

Ground 6:

Ground:

In respect of those documents which are entitled ‘possible parliamentary questions’, the preparation of possible responses to questions in Parliament is a very sensitive aspect of the work of Departmental officers and it would be contrary to the public interest were briefing and other material, produced on a confidential basis in the preparation of those responses, to be disclosed.  Officers must be able to communicate with their responsible ministers on this aspect of parliamentary business and to provide advice.  It would be contrary to the public interest if the minister were not able to discharge his or her responsibility without fear that the advice would be disclosed without consent, outside of the parliamentary process.

Documents:

22 34 89”

Not all documents covered by the claim are included in the above list.  For example, Documents 9, 11, 17, 26 and 83 are not included.  There is, however, affidavit evidence for all documents.  The documents not covered by the express grounds are generally documents of departments and agencies other than the Department of Foreign Affairs and Trade.  Where a document, claimed to be exempt under s 36, is not in the above list I have relied on the affidavit and oral evidence and on the documents themselves.  For each other document claimed to be exempt under the section I have relied on the same evidence although I have also taken note of the ground assigned in the written submissions. 

38.     Some of these grounds raise similar issues to those covered by the conclusive certificate in McKinnon and the Treasury.  However, the subject matter of the documents under consideration in this matter is quite different to the subject matter of the documents under consideration in McKinnon and the Treasury.  The issues associated with the detention of David Hicks at Guantanamo Bay in Cuba raise considerations wider than matters of revenue raising and economic management and policy.  Matters of diplomacy and international relations are involved.

39.     The policy positions of both the Australian and United States Governments on the detention of David Hicks are well known.  Disclosure of the documents would not add to what is already known of those attitudes.  Nor would it add anything significantly to what is known of the circumstances of the initial capture or arrest of David Hicks or of his subsequent detention.  What it would do is to disclose some of the processes of deliberation within the Executive leading to the formation of policy.

40. The consequences of my decisions relating to the conclusive certificate under s 33 is that communications from the United States Government and documents touching upon international relations, with respect to which the view can reasonably be held that disclosure would release material communicated in confidence or damage international relations, will not be disclosed. The grounds relied upon to support the claim to exemption under s 36 must be examined in this context.

41.     In McKinnon and the Treasury I have examined the seven grounds relied upon to support the conclusive certificate.  Grounds similar to each of them have been upheld in either the Federal Court or this Tribunal.  I have examined the six grounds relied upon in this matter in the light of my observations in McKinnon and the Treasury.  I find that each of them are grounds upon which it can be against the public interest to disclose documents falling within par 36(1)(a) as part of the deliberative processes of Government.

42. It does not follow that it will be against the public interest to disclose every document falling within par 36(1)(a) which also answers one or more of the six descriptions set out above. Each document must be considered on its own merits. I have accordingly personally examined each document. I conclude that the evidence supports the claim made for each of them. Where one or more of the six grounds are assigned to them then those grounds are applicable. However, I find as to each document, whether assigned to one of the grounds or not, that its disclosure would be against the public interest. In the result, all the s 36 claims for exemption are upheld.

43.     I will not refer individually to every document not assigned to one or more of the six grounds.  However, Document 17, which is such a document, requires individual attention.  It is a report from the Australian Federal Police.  It is marked “Highly Protected” at the head and foot of each page.  It seems to me to be covered by Grounds 1, 2, 3 and 5.

44. On page 5 of Document 19 only two paragraphs are relied upon as falling within s 36. The whole page was relied upon under par 34(1)(d). However, I have not upheld that claim. I have read the page carefully. In my opinion the whole of the page is covered by subs 36(1). Because exemption was claimed from its disclosure in whole, because parts of the page were claimed to be exempt under subs 36(1) and because my role is not a judicial role but that of decision-maker, I propose to decide that the whole of the page is exempt under s 36 even though application has not been made with respect to the whole page. The whole of the page is concerned with issues relating to the handling of the David Hicks matter. It must be read as a whole. The first two paragraphs, which were not claimed to be exempt under s 36, are introductory. They cannot be severed from the balance which follows. The fourth paragraph, which was also not claimed to be exempt under s 36, is an integral part of the deliberative process which is present in the third and fifth paragraphs. It contains the phrase “it might be desirable” and refers to what an agency “would be prepared to” do. The whole of page 5 of Document 19 is exempt from disclosure. It is covered in whole by Grounds 1 and 3.

45. Document 21 is also in my opinion exempt in whole under s 36. I propose to exempt it on the same basis as I have dealt with Document 19. The first two paragraphs are said to be irrelevant. In my opinion they are not. They relate directly to David Hicks. In any event the document is the same document as pages 3 and 4 of Document 22. No part of that is said to be irrelevant. The whole of the document is there claimed to be exempt under s 36. I have already upheld the conclusive certificate with respect to the document as it appears in Document 22. Turning to Document 22 itself the parts claimed under s 36 are exempt.

46. The first page of Document 26 is an Australian Federal Police communication marked “Highly Protected”. It is exempt under s 36 for the same reasons as Document 17. All the claimed parts of Document 28 are exempt.

Section 41

47. Section 41 provides that a document is an exempt document if its disclosure under the Act “would involve the unreasonable disclosure of personal information about any person”. David Hicks is not the applicant. However, his solicitor supports the application. I have carefully examined the material claimed to be exempt under this section. Naturally, it largely relates to David Hicks. Notwithstanding the apparent attitude of Mr Hicks and his legal representative I find that the matter claimed is exempt under this section.

Section 42

48. Section 42 exempts a document “of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege”. Mr McKinnon says the authors of the relevant documents do not have certificates entitling them to practise as lawyers. He says they are no different to any employee.

49.     The relevant advice in the present case was mainly given by the Senior Legal Advisor of the Department of Foreign Affairs and Trade.  It was given by both Richard Rowe and his successor Chris Moraitis.  Both persons are admitted as lawyers in an Australian state and are accordingly entitled to practise in federal courts (Judiciary Act 1903 (Cth) s 55B). Other advice was given by lawyers within the Office of the Director of Public Prosecutions or other departments, particularly the Attorney-General’s Department (Documents 9, 11, 12, 13, 28, 29, 43, 69, 80, 82, 89, 96 and 99).

50.     The authorities establish that legal professional privilege is attracted by legal advice otherwise qualifying even though the advice is given by an employed lawyer to his employer, including a Government department or agency, provided that the employee is acting independently in giving the advice (see Australian Hospital Care Pty Ltd v Duggan (No 2) [1999] VSC 131; Waterford v The Commonwealth (1987) 163 CLR 54).

51.     In Australian Hospital Care v Duggan, Gillard J concluded that provided the advice given was independent advice, it did not matter that the lawyer did not have a practising certificate for a claim of legal professional privilege to arise (at [111]).  In Vance v McCormack and The Commonwealth [2004] ACTSC 78, Crispin J in the Supreme Court of the Australian Capital Territory concluded that a practising certificate was necessary (at [48]). I prefer the conclusion and reasoning of Gillard J. The real test is whether the advice had the necessary quality of being independent advice. Whether or not legal professional privilege is attracted should be determined by the substance not the form. The rise of requirements for practising certificates is relatively recent and is associated primarily with regulatory considerations and matters associated with lawyers holding themselves out to the public as qualified. Many of these considerations are irrelevant to the role of the employed lawyer.

52.     The evidence in the present case is that all the advice given which is claimed to be exempt was given as independent advice.  Examination of the documents confirms this.  The content of the documents is legal advice of the kind which attracts legal professional privilege.  The privilege claim for exemption is accordingly justified.

Section 7

53. Document 61 is a document issued by the Australian Security Intelligence Organization. ASIO is deemed not to be a prescribed authority for the purposes of the Act under s 7 and Part 1 of Schedule 2 of the Act. By subs 7(2A) the respondent is exempt from the operation of the Act with respect to documents that originated with ASIO. Document 61 is such a document. It cannot be disclosed.

Section 22

54. Except to the extent that I have made a different determination in the reasons I find that the documents and parts of documents claimed to be irrelevant are within s 22 of the Act.

Conclusion

55.     The decisions under review must be affirmed in full although on the slightly different grounds for some of the documents which appear from these reasons.  I find that there exist reasonable grounds for the claims to exemption made in the conclusive certificate given by the Minister for Foreign Affairs and Trade. 

56. The documents produced to me will be returned pursuant to ss 58E and 64.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President

Signed: ........[sgd Shamus Toomey]........
  Associate

Dates of Hearing  27 and 28 July 2004
Date of Decision  21 December 2004
The Applicant appeared on his own behalf
Counsel for the Respondent     Ms M Campbell
Solicitor for the Respondent     Australian Government Solicitor

The Schedule

Doc No Pgs	Author	Addressee	Date	Description	Exemptions claimed	Parts of document over which exemption claimed	Conclusive Certificate parts of document	Nature of Damage	Relevant pars of Certif.
1 5 pgs	Bruce Miller, DFAT	Secretary, DFAT	11/12/01	Minute reporting on capture of Australian passport holder in Afghanistan and advising of developments Attachment A: US document Attachment B: talking points agreed by PM&C, Defence, ASIO and DFAT	s33 certificate s36 s22(1)(a)(ii)	Exempt in part Minute: whole document (pages 1 and 2) except for name, signature and designation of each author and addressee and heading of the minute Page 1 - first sentence of paragraph 4 and page 2 - paragraphs 5 and 6 Release remainder of document	Page 1 (minute): first sentence of paragraph 2 and whole of paragraph 3 except for name, signature and designation of each author and addressee and title of document Pages 3 and 4: whole of pages	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
2 4 pgs	Australian Red Cross Volunteers	13/12/01	International Humanitarian Law Briefing for Australian Red Cross Volunteers	Release whole document
3 1 pg	Canberra, originating post	Washington, receiving post	13/12/01	Cable in relation to capture of Australian, Hicks, and points to raise with the US	s33 certificate	Exempt in full	Whole document	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
4 1 pg	Washington, originating post	Canberra, receiving post	13/12/01	Cable responds to document 3 and reports on communications with the US in relation to the Hicks matter	s33 certificate	Exempt in full	Whole document	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
5 2 pgs	Canberra, originating post	Washington, receiving post	17/12/01	Cable responds to document 4 and advises in relation to future communications with the US on Hicks matter	s33 certificate	Exempt in part Release remainder of document	Whole document (except from “Limited Distribution to the following addresses”… to end of document)	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
6 2 pgs	Washington, originating post	Canberra, receiving post	17/12/01	Cable responds to document above and reports on communications with US in relation to the Hicks matter	s33 certificate	Exempt in part Release remainder of document	Whole document (except from “Limited Distribution to the following addresses”… to end of document)	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
7 10 pgs	Richard Rowe, DFAT	Secretary, DFAT	25/01/02	Minute containing views on draft document prepared for consideration by Secretaries’ Committee on National Security (SCNS) with a handwritten annotation from the Secretary Attachment A is a redraft of the draft document for SCNS Attachment B is the draft document for SCNS	s33 certificate s36 s42	Exempt in part Page 1: annotations Attachment A, pages 2-5: whole document Attachment B, pages 6-10: whole document except for 2nd - 5th lines in paragraph 3 on page 6, which contain purely factual material Attachment B, pages 6-10: whole document except for 2nd - 5th lines in paragraph 3 on page 6	First sentence of first full paragraph on page 4	Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(b)
s22(1)(a)(ii)	Paragraphs 1 and 2 on page 1 Attachment A, page 2: second bullet point (first sentence), all of third and fourth bullet points Attachment B, page 6: 6th and 7th words of line 2 in paragraph 3; 18th and 19th words in ‘Fact 4’: page 7, 4th dot point, 13th 15th words; all of 6th dot point Release remainder of document
8 4 pgs	29/01/02	New Zealand document	s33 certificate	Exempt in full	Whole document	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
9 7 pgs	Robert Cornall, Attorney-General’s Department	Richard Rowe, DFAT	30/01/02	Letter, attaching amended version of Attachment B of draft for SCNS	s33 certificate s36 s42	Exempt in part Page 1 and attachment (pages 2-7) - entire document except 2nd - 5th lines in paragraph 1 on page 2, which contain purely factual material Pages 2-7 - entire document except 2nd - 5th lines in paragraph 1 on page 2	First dot point on page 5	Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(b)
s22(1)(a)(ii)	Page 2: 6th and 7th words of line 2 in paragraph 3; 18th and 19th words in ’Fact 4’ Page 5, 4th dot point, 9th - 10th words; all of 6th dot point Release remainder of document
10 4 pgs	Washington, originating post	Canberra, receiving post	30/01/02	Cable reporting on communications with the US in relation to the Hicks matter	s33 certificate	Exempt in part Release remainder of document	Whole document (except from “Limited Distribution to the following addresses”… to end of document)	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
11 2 pgs	DFAT – Smith	DFAT	30/01/02	E-mail enclosing file note setting out matters discussed at IDC held in relation to the Hicks matter	s36 s42 s22(1)(a)(ii)	Exempt in full 3rd bullet point on page 2 3rd bullet point on page 2 All of page 1, and remainder of page 2
12 2 pgs	DFAT – King	DFAT – Webster	01/02/02	E-mail enclosing briefing on Hicks case for inclusion in a Current and Contentious Issues (CCI) brief prepared for Mr Vaile	s36 s42 s22(1)(a)(ii)	Exempt in part Paragraph 5 on page 2 Paragraph 2 on page 2 Paragraph 3 (second sentence) Release remainder of document
13 1 pg	DFAT	Internal	01/02/02	File note setting out matters discussed at IDC held in relation to the Hicks matter	s42 s22(1)(a)(ii)	Exempt in full 1st bullet point and 2nd & 3rd (sub)-bullet points Remainder of document
14 3 pgs	DFAT	Minister	02/02	Briefing on Hicks case for inclusion in a CCI brief prepared for Mr Downer	s36 s22(1)(a)(ii)	Exempt in part Paragraph 2 on page 1 Paragraphs 3 and 5 on page 1; paragraph 1 on page 2 Release remainder of document
15 5 pgs	Washington, originating post	Canberra, receiving post	01/02/02	Cable reporting on communications in relation to Mr Hicks	s33 certificate	Exempt in part Release remainder of document	Cable heading, text of summary and paragraphs 1 to 10	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
16 2 pgs	DFAT	Internal	01/02/02	Summary of situation relating to access to detainees	s33 certificate s36 s22(1)(a)(ii)	Exempt in full Whole paragraph on page 2, including five bullet points below Remainder of document	Dot point 6 on page 1, dot point 7 on page 1 over to page 2 and dot point 8 on page 2	Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(b)
17 8 pgs	AFP	DFAT	04/04/02	Letter setting out AFP’s response to various queries from DFAT in relation to Hicks case	s36 s41	Exempt in full Whole document Paragraph 2 on page 2; paragraph 2 on page 4; paragraph 2 on page 6
18 2 pgs	London, originating post	Canberra, receiving post	07/02/02	Cable in relation to points to raise with the US	s33 certificate	Exempt in part Release remainder of document	Cable heading, text of summary and remainder of text (except from ‘Limited Distribution to the following addresses ... ‘to end of document)	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
19 5 pgs	DFAT – King	DFAT – Various	07/02/02	E-mail enclosing copies of media talking points and briefing prepared for Mr Downer on Hicks case	s33 certificate s36 s34(1)(d) s22(1)(a)(ii)	Exempt in part Paragraph 1 on page 3; paragraphs 1, 2 and 4 under heading Main Issues on page 5 Whole of page 5 Paragraph 6 on page 3 Release remainder of document	Paragraph 4 on page 3 Last paragraph on page 3 over to page 4	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
20 8 pgs	US Embassy Canberra	DFAT	08/02/02	US document attaching: fax cover (1 page) US press statement (2 pages)	Release whole document
21 2 pgs	DFAT	Foreign Minister	08/02/02	Briefing prepared for Mr Downer on handling of Hicks’ case	s36 s22(1)(a)(ii)	Exempt in full Paragraphs 3, 4 and 5 Remainder of document
22 10 pgs	Richard Rowe, DFAT	Secretary, DFAT	8/02/02	Minute updating developments in the Hicks case Attachment A: Minister’s briefing notes for NSC re handling of Hicks case Attachment B: Cabinet briefing for Minister re handling of Hicks case Attachment C: PPQ re Hicks Attachment D: PPQ re detainees other than Hicks	s33 certificate s36	Exempt in part Minute: whole document except for name, signature and designation of each author and addressee and title of document Attachment A: whole document Attachment B: whole document Attachment C: whole document, except for name, signature and designation of each author and addressee	Attachment C page 2 paragraph 2 line 3 from the sentence commencing, “Given Hicks” to the end of the paragraph Also paragraph 3, last three sentences commencing with the words, “We conveyed” Last sentence, paragraph 2, page 1; second sentence, paragraph 5, page 3	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b) (b)
s34(1)(d) s42 s22(1)(a)(ii)	Paragraph 2, first two sentences, page 1; all of pages 3 - 6 Third paragraph on page 3 (Attachment A) First paragraph under heading ‘DFAT comments’ on page 5 (Attachment B) Paragraph 2, second last sentence, paragraph 3,
bracketed part of paragraph 4 (page 1), paragraph 5 (except second sentence) and paragraph 6 (page 2), final paragraph on page 3 over to page 4 (Attachment A), Paragraph 2, third sentence to end on page 4 (Attachment A) The last sentence after the dash under the heading commencing ‘Purpose’ on page 5 (Attachment B)
The sentence beginning “In the interim” under the heading ‘Background/Key Issues’ on page 5 (Attachment B) The whole of the sentence under the heading ‘Views of other Ministers / Departments’ on  page 5 (Attachment B) Paragraph 3 under the heading  ‘DFAT Comments’ on page 5 over  page 6; to full paragraphs 1 and 2 on page 6 (Attachment B)
The text under the heading ‘If asked about access to Mr Hicks’ on page 7 (Attachment C) The text under the heading ‘If asked about the concerns of Mr Hicks’ family’ Whole document (Attachment D) on page 7 (Attachment C) Release remainder of document
22A	Secretary to Cabinet	Cabinet	11/02/02	Cabinet Minute relating to the handling of Mr Hicks’ case	s34(1)(b)	Exempt in full
23 2 pgs	DFAT	12/02/02	Anti-Terrorism Task Force Situation Report 81: contains an update in relation to detainees at Guantanamo Bay as well as updates on various unrelated matters falling outside of scope of FOI request	s33 certificate s22(1)(a)(ii)	Exempt in full Heading and handling instructions; Paragraphs 1 and 2 on page 1 All of page 2	Paragraphs 4 and 5 on page 1	Disclosure would cause damage to Australia’s international relations
24 1 pg	DFAT	12/02/02	File note setting out matters discussed at IDC held in relation to the Hicks matter	s33 certificate s34(1)(d) s36 s22(1)(a)(ii)	Exempt in full First bullet point (except for the first six words) and fourth to twentieth words in third bullet point Heading; First six words of first bullet pointl First three words and twenty-first word to end of third bullet point; fourth bullet point Second bullet point	Fifth and sixth bullet points	Disclosure would cause damage to Australia’s international relations	(a)
25 2 pgs	Richard Rowe, DFAT	Secretary, DFAT	13/02/02	Minute updating developments in Hicks case with annotation by Secretary	s34(1)(d) s36 s22(1)(a)(ii)	Exempt in part Paragraph 2 Whole document except paragraph 1, and first sentence of paragraph 3 which contain purely factual material, paragraph 4 and name, signature and designation of each author and addressee and title of document Paragraph 4 Release remainder of document	N/A
26 3 pgs	AFP	Washington	14/02/02	AFP facsimile regarding future communications to be undertaken with US in relation to Hicks matter	s33 certificate s36(1) s41	Exempt in full Page 1 Eleventh word in first sentence on page 1	Pages 2 and 3	Disclosure would cause damage to Australia’s international relations	(a)
27 2 pgs	US Government	US document	s33 certificate	Exempt in full	Whole document	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
28 15 pgs	AGD	14/02/02	Talking points prepared by AGD	s33 certificate s42 s36 s22(1)(a)(ii)	Exempt in part Page 13, Last sentence of paragraph 2 Page 14, paragraphs 2 to 5 Whole document except page 4, first two paragraphs under first dot point; page 5, all of question 10 and response Page 6, all of question 14 and response Page 9, all of question 20 and response	Page 4, first two paragraphs under first dot point Page 5, all of question 10 and response	Disclosure would cause damage to Australia’s international relations	(a)
Page 10, all of question 24 and response Page 11, 4th dot point, 1st and 2nd dash points Page 13, paragraph 2 (other than the last sentence);  all of paragraphs 3 to 6 Page 14, paragraphs 1 and 2 Page 15, paragraph 1 Release remainder of document
29 4 pgs	Philippa King, DFAT	Richard Rowe, DFAT	18/02/02	Minute regarding David Hicks: consular access - Obligations under the Vienna Convention	s36 s42 s22(1)(a)(ii)	Exempt in part Paragraph 2 (second, third, fourth and fifth bullet points) Remainder of document except for name, signature and designation of each author and addressee and title of document Release remainder of document	N/A
30 6 pgs	DFAT	19/02/02	Briefing in relation to questions referred to DFAT on 19/02/02 by AGD in relation to: (i) the nature of Australia’s representations on the Hicks case; (ii) the application of the Geneva Conventions and broader welfare issues (iii) the issue of access	s33 certificate s34(1)(d) s22(1)(a)(ii)	Exempt in part Fourth and fifth sentences of italicised paragraph on page 2 All of pages 5 to 6 (except second sentence in italicized paragraph on page 6) Release remainder of document	Second sentence to end of italicised paragraph on page 2 Second sentence in italicized paragraph on page 6	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b) (b)
31 4 pgs	Washington, originating post	Canberra, receiving post	20/02/02	Cable reporting on communications with the US in relation to the Hicks matter	s33 certificate s22(1)(a)(ii)	Exempt in part Whole of paragraphs 5, 7, 8 and 11 Release remainder of document	Text of the summary except the first sentence Last two sentences in paragraph 3; whole of paragraphs 4, 6, 9, 10 and 12	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
32 3 pgs	US Government	02/02	US Document	s33 certificate s22(1)(a)(ii)	Exempt in full Final paragraph on page 1 and all of pages 2 and 3	Whole of paragraphs 1 to 6 on page 1	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
33 1 pg	DFAT	Internal	25/02/02	File note setting out matters discussed at IDC held in relation to the Hicks matter	s22(1)(a)(ii)	Exempt in full Whole document
34 5 pgs	DFAT – King	DFAT	25/02/02	E-mail enclosing text of briefing minute and Q & A points in relation to the Hicks case	s36 s22(1)(a)(ii)	Exempt in part Paragraph 7 on page 3 Paragraph 3 on page 2 Release remainder of document
35 3 pgs	Washington, originating post	Canberra, receiving post	25/02/02	Cable reporting on communications with the US in relation to the Hicks matter	s33 certificate s22(1)(a)(ii)	Exempt in part Paragraph 3 Release remainder of document	First two sentences in Summary, paragraph 2; paragraph 4; second sentence paragraph 5	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
36 7 pgs	Rod Smith, DFAT	Secretary, DFAT	25/02/02	Minute advising in relation to an Aide Memoire and other developments in the Hicks matter Attachment: draft Aide Memoire for consultations with Department of State US re Mr Hicks (together with 2 attachments to the Aide Memoire)	s33 certificate s36 s34(1)(d) s22(1)(a)(ii)	Exempt in part First twelve words of paragraph 1; Paragraph 4 of minute Paragraph 1 of minute (except for the first twelve words) Paragraphs 2 (second last sentence) and 3 of minute Release remainder of document, including name, signature and designation of each author and addressee and title of document	Attachment: whole of draft Aide Memoire and Attachment B Last sentence of paragraph 2 on page 1	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
37 8 pgs	Rod Smith, DFAT	Secretary, DFAT	25/02/02	Briefing Note for Secretary with an annotation from the Secretary enclosing a minute concerning the Aide Memoire and a version of the draft Aide Memoire	s33 certificate s36 s34(1)(d)	Exempt in part First tweleve words of paragraph 1; Paragraph 4 of minute Paragraph 1 of minute (except for the first twelve words)	Paragraph 2 of minute; first sentence other than words 21 - 23 Whole of draft Aide Memoire and Attachment B Last sentence of paragraph 2 on page 1	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
s22(1)(a)(ii)	Paragraph 2 (second last sentence) and paragraph 3 of minute Release remainder of document, including name, signature and designation of each author and addressee and title of document
38 1 pg	Washington – Gauci	Canberra – King	26/02/02	Internal e-mail regarding communications with the US government regarding detainees	s33 certificate	Exempt in part Release remainder of document	Whole document except address and signature blocks	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
39 1 pg	DFAT	27/02/02	File note setting out matters discussed at IDC held in relation to the Hicks matter	s33 certificate s22(1)(a)(ii)	Exempt in full Remainder of document	Third bullet point	Disclosure would cause damage to Australia’s international relations	(a)
40 5 pgs	AGD	Draft Aide Memoire with tracked changes and bolded text for consideration	s33 certificate	Exempt in part Release remainder of document	Whole of Aide Memoire and Attachment B	Disclosure would cause damage to Australia’s international relations	(a)
41 1 pg	Washington – Gauci	Canberra – King	27/02/02	Internal DFAT E-mail outlining matters to be addressed in future communications with the US regarding the Hicks matter	s33 certificate	Exempt in part Release remainder of document	Whole document except address and signature blocks	Disclosure would cause damage to Australia’s international relations	(a)
42 1 pg	DFAT – King	Washington – Gauci, Canberra – Various	27/02/02	Internal DFAT E-mail responding to message above outlining matters to be addressed in future communications with the US regarding the Hicks matter	s33 certificate s36 s22(1)(a)(ii)	Exempt in part Paragraph 1 Paragraph 3 Release remainder of document	Paragraph 2	Disclosure would cause damage to Australia’s international relations	(a)
43 1 pg	Director of Public Prosecutions	AFP	28/02/02	Legal advice in relation to proposed interview with David Hicks and evidentiary aspects	s42	Exempt in full Whole document.
44 11 pgs	DFAT – Gorley	Foreign Minister, Minister for Trade, Parl Sec	01/03/02	Parliamentary Secretary’s copy of Ministerial Submission on consultations with US and request for access attaching: draft copy of the Aide Memoire; four draft letters to other Ministers concerning the Aide Memoire	s33 certificate s36 s34(1)(d)	Exempt in part Pages 1 and 2: Text of the key issues, recommendations and background Pages 8, 9 , 10 and 11: text of the four letters (attachments B, C, D and E to Submission) Page 1: Text of the key issues (first sentence and fourth sentence (except for the first three words)); Page 2: paragraph 1 (first sentence), paragraph 6 (first sentence except	Whole of draft Aide Memoire and Attachment B	Disclosure would cause damage to Australia’s international relations	(a)
for the first four words); Pages 8, 9, 10 and 11: following parts in the text of the four letters (attachments B, C, D and E to Submission) paragraph 1 (except for the first seven words; paragraph 2, first sentence; all of paragraph 4 Release remainder of document
45 5 pgs	Washington, originating post	Canberra, receiving post	08/03/02	Cable advises in relation to future communications with the US on Hicks matter	s33 certificate	Exempt in part Release remainder of document	Text of summary, paragraphs 1 and 2; rest of page 1 to third block of text on page 2; fourth block of text on page 2 to end of page 2; all of text on pages 3, 4 and 5	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
46 1 pg	AAP Wire Service Report	None	18/03/02	Press item concerning detainees	Release whole document
47 3 pgs	DFAT – FAS, ILD	Secretary, DFAT	11/03/02	Minute providing update on matters addressed in draft Aide Memoire and communications with the US in relation to detainees, with Secretary’s annotation attaching: NSC brief	s33 certificate s36 s34(1)(d)	Exempt in part Whole document except for the signature and address blocks of the Minute Page 3 Release remainder of document	Paragraph 2 of the Minute Page 3, all of paragraph 2 and last sentence of paragraph 3	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
48 1 pg	DFAT – King	Washington – Gauci	14/03/02	E-mail reporting on issues discussed at, and tasks arising from, IDC held in relation to Hicks matter	s33 certificate s36 s22(1)(a)(ii)	Exempt in part Paragraphs 1 and 2 First sentence in paragraph 3 and all of paragraph 5 Release remainder of document	Second and third sentences in paragraph 3 and all of paragraph 4	Disclosure would cause damage to Australia’s international relations	(a)
49 6 pgs	Attorney General	Foreign Minister	14/03/02	Letter seeking agreement to Aide Memoire, attaching copy of draft Aide Memoire	s33 certificate s36 s34(1)(d)	Exempt in part Page 1: Text of Mr Williams’ letter - all Page 1, all of paragraph 1 (except for the first five words), first sentence of paragraph 2, all of paragraph 4 Release remainder of document	Whole of draft Aide Memoire and Attachment B	Disclosure would cause damage to Australia’s international relations	(a)
50 9 pgs	Richard Rowe – DFAT	Foreign Minister, Min Trade, Parl Sec	19/03/02	Foreign Minister’s copy of Ministerial Submission on consultations with US and request for access, attaching: copy of Aide Memoire; a letter from the Attorney-General to Foreign Minister concerning the Aide Memoire; and a draft letter in response	s33 certificate s36	Exempt in part Pages 1 and 2: Text of the key issues, recommendations and background. Pages 8 and 9: Text of Mr Williams’ and Mr Downer’s letters	Whole of draft Aide Memoire and Attachment B	Disclosure would cause damage to Australia’s international relations	(a)
s34(1)(d)	Page 1, ‘Key Issues’ paragraph, first sentence (except for the first eleven words); page 2, paragraph 1, first sentence; page 8, all of paragraph 1 (except for the first five words), first sentence of paragraph 2, all of paragraph 4 Release remainder of document
51 11 pgs	Richard Rowe, DFAT	Secretary, DFAT	19/03/02	Minute advising in relation to further draft of Aide Memoire Attachment A: Ministerial Submission from Richard Rowe to the Minister Mr A Downer Attachment B: draft Aide Memoire for Consultations with the Department of State re Mr Hicks	s33 certificate s36 s34(1)(d)	Exempt in part Page 1 of Attachment A to the Minute: Text of the key issues and recommendations; Page 2: Background Pages 10 and 11: Text of Mr Williams’ and Mr Downer’s letters Page 3, ‘Key Issues’ paragraph, first sentence (except for the first eleven words); page 4, paragraph 1, first sentence; page 10,	Paragraphs 2, 3 and 4 of the Minute Attachment A: paragraphs 2, 3, 4 and 5 of page 2 under ‘Background’ Attachment B: whole of draft Aide Memoire and Attachment B to Aide Memoire	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
Attachment C: Letter from Daryl Williams, Attorney-General to Mr Downer seeking agreement on draft Aide Memoire Attachment D: Draft suggested reply from Mr Downer to Mr Williams re Aide Memoire	s22(1)(a)(ii)	all of paragraph 1 (except for the first five words), all of the first sentence and the first seven words of paragraph 2, all of paragraph 4 Paragraph 1 of covering minute Release remainder of document
52 6 pgs	DFAT, Canberra	Washington, London and DFAT Canberra	19/03/02	E-mail attaching text of draft Aide Memoire	s33 certificate s36 s22(1)(a)(ii)	Exempt in part Second paragraph on page 1 First, third (except for first sentence) to fifth paragraphs on page 1 Release remainder of document	Whole of draft Aide Memoire and Attachment B First sentence of paragraph 3 on page 1	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
53 2 pgs	DFAT – Rowe	Minister	21/03/02	Minute commenting on draft Aide Memoire text	s36	Exempt in part Whole document except for address and signature blocks Release remainder of document
54 3 pgs	Minister’s Office and Rowe, DFAT	21/03/02	US document	s33 certificate	Exempt in full	Whole document	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
55 4 pgs	Foreign Minister’s Office	DFAT	21/03/02	Facsimile enclosing text of Aide Memoire for Consultations with US Dept of State and Talking Points	s33 certificate	Exempt in part Release remainder of document	Text of the Aide Memoire (the whole of page 2 of the document)	Disclosure would cause damage to Australia’s international relations	(a)
56 4 pgs	Washington, originating post	Canberra, receiving post	21/03/02	Cable reporting on communications with the US in relation to Hicks matter	s33 certificate s22(1)(a)(ii)	Exempt in part Paragraphs 11 and 12 Release remainder of document	Text of the summary and paragraphs 1 - 10	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
57 3 pgs	US Government	20/03/02	US document	Release whole document
58 5 pgs	Washington, originating post	Canberra, receiving post	21/03/02	Cable reporting on communications with the US in relation to Hicks matter	s33 certificate s22(1)(a)(ii)	Exempt in part Paragraphs 8 and 9 Release remainder of document	Paragraphs 2 and 4-6, and the text of the attachment	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
59 3 pgs	Canberra, originating post	Washington, receiving post	23/04/02	Cable with text and discussion of Aide Memoire for use in discussions with the US in relation to the Hicks matter	s33 certificate	Exempt in part Release remainder of document	Whole document (except from “Limited Distribution to the following addresses”… to end of document)	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
60 4 pgs	Washington, originating post	Canberra, receiving post	25/03/02	Cable reporting on communications with the US in relation to Hicks matter	s33 certificate	Exempt in part Release remainder of document	Text of the summary and paragraphs 1 to 14	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
61 3 pgs	ASIO	25/03/02	Report prepared by ASIO on visit to Guantanamo Bay	s7(2A)	Exempt in full Whole document
62 5 pgs	DFAT	25/03/02	NSC Briefing Note regarding proposed further Aide Memoire attaching: two drafts of Aide Memoire	s33 certificate s36 s34(1)(c) s34(1)(d)	Exempt in full Page 1; paragraph 1 Pages 3 and 4 Pages 1 and 2	Whole document except for paragraph 1 on page 1	Disclosure would cause damage to Australia’s international relations	(a)
63 1 pg	DFAT	27/03/02	Item regarding Hicks matter for Secretary’s weekly report	s33 certificate s22(1)(a)(ii)	Exempt in part Second, third and fourth sentences in paragraph 1 Release remainder of document	Last two sentences in paragraph 1 and second last sentence of paragraph 2 First sentence in paragraph 1	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
64 4 pgs	FAS, ILD	Secretary, DFAT	27/03/02	Minute regarding developments in Hicks matter and discussions with the US	s33 certificate s22(1)(a)(ii)	Exempt in part Paragraphs 1, 2 (other than first sentence), 3 to 8 and 14 to 18; annotations to paragraphs 14 and 15 Release remainder of document	Paragraphs 9, 10, 11, 12 and 13 First sentence in paragraph 4	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
65 5 pgs	Washington, originating post	Canberra, receiving post	03/04/02	Cable reporting on communications with the US in relation to Hicks matter	s33 certificate s22(1)(a)(ii)	Exempt in part Paragraphs 2 and 12 (second to fourth sentences) Release remainder of document	Text of the summary and paragraphs 1, 3 to 11 Paragraph 12 (first and fifth - seventh sentences)	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b) (b)
66 1 pg	Gauci, Washington	Rowe and King, DFAT	04/04/02	E-mail requesting details of relevant legislation and addressing issues in relation to accessing detainees	s33 certificate s22(1)(a)(ii)	Exempt in part Paragraph 4 (other than first sentence) Release remainder of document	Paragraphs 2 and 3 First sentence of paragraph 4	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
67 1 pg	DFAT - King	Gauci, Washington, DFAT – Various	04/04/02	Email responding to cable setting out details of communications with US and outlining matters discussed at IDC held in relation to Hicks matter	s33 certificate s22(1)(a)(ii)	Exempt in full Paragraphs 2 (excluding parts of third sentence described above) and 3	Paragraph 1 Third sentence of paragraph 2 (other than first 6 words and last 12 words)	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
68 1 pg	Deputy Secretary, DFAT	Secretary, DFAT	05/04/02	Note regarding potential evidentiary issues	s36 s22(1)(a)(ii)	Exempt in full Paragraph 2 Remainder of document
69 7 pgs	DFAT	ONA	05/04/02	Email attaching draft legal advice on operation of Crimes (Foreign Incursions and Recruitment) Act 1978	s36, s42	Exempt in full Whole document.
70 2 pgs	Geoff Raby, Ralph Hillman, DFAT	Mr Downer	8/04/02	Ministerial submission recommending action in relation to Hicks matter	s36 s22	Exempt in part Page 2, paragraph 2 (first sentence) Whole of the first page and background on page 2 (paragraphs 1, 2 (from second sentence to end), 3, 4, 5, 6 and 7) Release remainder of document including address and signature blocks	N/A
71 3 pgs	AGD	PM&C	15/04/02	Separate cover fax attaching Law Council Letter	Release whole document
72 3 pgs	Washington, originating post	Canberra, receiving post	23/04/02	Cable reporting on communications with the US in relation to Hicks matter	s33 certificate	Exempt in part Release remainder of document	Whole document (except from “Exclusive Distribution for the following addresses”… to end of document)	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
73 2 pgs	DFAT	DFAT – Deputy Secretary	23/04/02	Draft brief for meeting to be held between Deputy Secretary and U.K. official regarding detainees	s33 certificate s22(1)(a)(ii)	Exempt in full All of page 1 (except third sentence of third full paragraph) and paragraphs 5 and 6 on page 2	Paragraphs 1 to 4 on page 2 Third sentence of third full paragraph on page 1	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
74 3 pgs	DFAT	DFAT – Deputy Secretary	23/04/02	Updated version of document 73	s33 certificate s22(1)(a)(ii)	Exempt in full All of page 1 (except third sentence of third full paragraph) and paragraphs 5 to 6 on page 2 over to page 3	Paragraphs 1 to 4 on page 2 Third sentence of third full paragraph on page 1	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
75 1 pg	Canberra, originating post	Washington, receiving post	23/04/02	Cable in response to cable outlining communications with the US in relation to Hicks matter	s33 certificate	Exempt in part Release remainder of document	Whole document (except from “Limited Distribution to the following addresses”… to end of document)	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
76 3 pgs	Canberra	30/04/02	Aide Memoire from US government to Australian government in relation to Mr Hicks	s33 certificate	Exempt in full	Whole document	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government

77 5 pgs	Washington, originating post	Canberra, receiving post	4/05/02	Cable reporting on communications with the US in relation to Mr Hicks	s33 certificate	Exempt in part Release remainder of document	Whole document (except from “Limited Distribution to the following addresses”… to end of document)	Release would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
78 9 pgs	Richard Rowe	Secretary, DFAT	24/05/02	Covering minute and draft expert legal opinion to AGD from DFAT relating to operation of Crimes (Foreign Incursions and Recruitment) Act 1978	s36, s42 s22(1)(a)(ii)	Exempt in full Pages 1 and 2, paragraph 2, first sentence (8th and 9th words); paragraph 3, second sentence (21st and 22nd words); paragraph 3, third sentence (33rd - 35th words); paragraph 5, second sentence (31st and 32nd words) Page 3, paragraph 1, first sentence (23rd - 24th words); paragraph2, second sentence (19th - 22nd words)
Page 4, point (b), sub-points (i) and (ii); all of point (c) Page 5, paragraph 6 to end of page All of page 6 Page 7, paragraphs 1 - 5
79 7 pgs	Richard Rowe	AGD (Holland)	30/05/02	Expert legal opinion to AGD from DFAT relating to operation of Crimes (Foreign Incursions and Recruitment) Act 1978	s 36, s42 s22(1)(a)(ii)	Exempt in full Page 1, paragraph 1, first sentence (23rd - 24th words); paragraph 2, second sentence (19th - 22nd words) Page 2, point (b), sub-points (i) and (ii); all of point (c) Page 3, paragraph 6 to end of page All of page 4 Page 5, paragraphs 1 - 5
80 21 pgs	Attorney-General’s Department (author not stated)	undated	Paper for consideration of the SCNS in relation to legal options and other issues relating to Mr Hicks	s33 certificate s36 s42	Exempt in part Whole document except: on page 2, the heading and text under “Background and Current Situation” which contains purely factual material Page 2, final paragraph, page 3 (other than sixth paragraph); all of pages 4 to 6	Page 2: under heading “Background and Current Situation”: paragraph 2 - first and second sentences; whole of paragraphs 4 and 5; paragraph 6: first two sentences	Disclosure would cause damage to Australia’s international relations	(a)
s22(1)(a)(ii)	Page 2, paragraph 3, first and final sentences; all of pages 7 to 21 Release remainder of document
81 3 pgs	Washington, originating post	Canberra, receiving post	01/08/02	Cable reporting on communications with the US in relation to the Hicks matter	s33 certificate s22(1)(a)(ii)	Exempt in part Document heading (second word) Final two sentences in text of the summary and paragraph 1 Release remainder of document	First two sentences in text of the summary and paragraphs 2 to 4 (including heading)	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
82 2 pgs	Canberra, originating post	Washington, receiving post	02/08/02	Cable reporting on communications with the US in relation to the Hicks matter	s33 certificate s42 s22(1)(a)(ii)	Exempt in part Paragraph 3 Document heading (third word) Nineteenth word in summary Release remainder of document	Text of the summary and paragraphs 1 to 4	Disclosure would cause damage to Australia’s international relations	(a)
83 4 pgs	Richard Rowe	Secretary, DFAT	12/08/02	Minute attaching revised supplementary legal advice to AFP regarding the operation of the Crimes (Foreign Incursions and Recruitment) Act 1978	s36, s42	Exempt in part Whole document except for the address and signature blocks on the Minute and Dr Calvert’s hand written comment Release remainder of document
84 3 pgs	Canberra, originating post	London, receiving post	06/09/02	Cable reporting on communications with the US in relation to Hicks matter	s33 certificate s22(1)(a)(ii)	Exempt in part Paragraph 1 (subparagraphs 4, 5, 6, 7, 9 and 10) Release remainder of document	Text of the summary and paragraph 1 (subparagraphs 1, 2, 3 and 8), paragraph 2 and paragraph 3	Disclosure would cause damage to Australia’s international relations	(a)
85 1 pg	Glenda Gauci – Washington	DFAT addressees Canberra / Washington	10/09/02	E-mail reporting on discussion with US	s33 certificate s22(1)(a)(ii)	Exempt in part Paragraph 1 Release remainder of document	Paragraphs 2 and 3	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
86 2 pgs	London, originating post	Canberra, receiving post	13/09/02	Cable reporting on communications with a foreign government in relation to Hicks matter	s33 certificate	Exempt in part Release remainder of document	Paragraphs 2 and 3	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
87 7 pgs	Washington, originating post	DFAT, AGD PM&C	13/09/02	Facsimile enclosing text of Human Rights Watch Letter to Rumsfeld – Australian Detainees	Release whole document
88 2 pgs	Washington, originating post	Canberra, receiving post	16/09/02	Cable relating to detainees – Meeting with Human Rights Watch	Release whole document
89 10 pgs	Lowe – AGD	DFAT, ASIO and PM&C	18/09/02	Facsimile attaching AGD submission regarding options for a government response on issues arising in relation to Hicks matter attaching a draft letter for the Attorney-General’s signature	s33 certificate s36 s42 s34(1)(d)	Exempt in part Whole document including annotations on page 1, except for the named recipients and the signature block on the facsimile cover sheet and paragraph 3 on page 3 Page 3, first sentence of paragraph 7; page 10, third and fourth sentences of paragraph 3	Page 4, paragraph 3	Disclosure would cause damage to Australia’s international relations	(a)
s22(1)(a)(ii)	Page 1, document heading (7th word); paragraph 1 (43rd word) Page 2, document heading (4th and 5th words) and footer on subsequent pages where heading is duplicated; paragraph 3, final sentence
Page 3, all of paragraph 4; paragraph 5 (19th and 20th words); paragraph 6 (final word) Page 4; paragraph 3, second sentence (28th word); Page 4, paragraph 5, third sentence, 15th - 17th words Page 5, paragraph 1, all of first full sentence; last 6 words of final sentence; paragraph 6 (18th word)
Page 6, paragraph 3, first sentence (14th and 27th words); second sentence (17thword); paragraph 4, all of second sentence Page 7, paragraph 3 (4th word); paragraph 4 , first bullet point (13th and 14th words) Page 8, first bullet point, first sentence (23rd and 24th words); second sentence (10th and 11th words); all of second bullet point,
fourth bullet point (6th and 7th words) Page 10, paragraph 2, first sentence (25th and 26th words); paragraph 3, third sentence, 21st and 22nd words Release remainder of document
90 3 pgs	Spillane – DFAT	Lowe – AGD	19/09/02	Facsimile enclosing DFAT comment on AGD Briefing Note regarding options for a government response on issues arising in relation to Hicks matter	s36 s22(1)(a)(ii)	Exempt in part Whole document except for facsimile cover sheet Page 1, document subject (3rd word) Page 2, heading (7th word); first bullet point (26th word); first paragraph under ‘Options’ heading, second sentence (20th word), second paragraph under ‘Options’ heading (22nd word) Page 3, first dot point (6th and 7th
words); second dot point (9th and 10th words) Release remainder of document
91 2 pgs	Stockholm, originating post	Canberra, receiving post	26/09/02	Cable regarding detainees at Guantanamo Bay: another country’s views	s33 certificate	Exempt in part Release remainder of document	Cable heading, the summary and paragraphs 1 to 10	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
92 2 pgs	Washington, originating post	Canberra, receiving post	23/10/02	Cable reporting on communications with the US in relation to the Hicks matter	s33 certificate	Exempt in part Release remainder of document	The first two sentences of the summary	Disclosure would cause damage to Australia’s international relations	(a)
93 2 pgs	Canberra, originating post	Washington, receiving post	25/10/02	Cable reporting on communications with the US in relation to the Hicks matter	s33 certificate	Exempt in part Release remainder of document	Text of the summary and paragraph 1	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
94 9 pgs	31/10/02	US Document	s33 certificate	Exempt in full	Whole document	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
95 6 pgs	AGD	DFAT- Playle	11/11/02	Cover facsimile attaching draft talking points prepared for meeting between Attorney-General and US government representative	s33 certificate s22(1)(a)(ii)	Exempt in part Page 2, document heading (6th and 7th words); first paragraph under ‘Main issues / topics’ heading (13th to 15th words); following parts under ‘Talking points’ heading: second bullet point, first sentence (last 2 words); second bullet point (10th and 11th words); third bullet point (5th and 6th words);	Whole document except for the facsimile cover sheet	Disclosure would cause damage to Australia’s international relations	(a)
fourth bullet point (8th and 9th words); last two words after sub-heading; fifth bullet point (last 2 words) Page 3, first dash point, 10th and 11th words Page 4, third paragraph, first sentence (17th and 18th words); second sentence (7th and 8th words) Page 5, all of paragraphs 3 - 6, and  6 and sub-heading above Release remainder of document
96 2 pgs	Trindade – DFAT	Foreign Minister & Minister for Trade	21/11/02	Foreign Minister’s copy of Ministerial Submission providing an update on Investigations into the Hicks matter and legal advice received	s33 certificate s36 s42 s22(1)(a)(ii)	Exempt in part Text of the key issues and background Key issues, second sentence Page 3, paragraph 1, last 13 words in third sentence and all of fourth sentence Release remainder of document	Key issues, fourth and fifth sentences Background: Paragraph 3, first and second sentences	Disclosure would cause damage to Australia’s international relations	(a)
97 5 pgs	Washington, originating post	Canberra, receiving post	27/11/02	Cable reporting on communications with the US in relation to the Hicks matter	s33 certificate s22(1)(a)(ii)	Exempt in part Paragraph 5 Release remainder of document	Text of the summary and paragraphs 1 to 4	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
98 5 pgs	Trindade – DFAT	Playle – DFAT	28/11/02	E-mail enclosing draft record of conversation between Attorney-General and US government representative regarding detainees	s33 certificate	Exempt in full	Whole document	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
99 31 pgs	AGD – Marc Hess	DFAT – Ben Playle – Legal	30/01/03	Facsimile enclosing Senate Estimates Briefs prepared by AGD in relation to Hicks matter	s33 certificate s36; s33(1)(a)(iii) s36; s33(1)(b) s42 s22(1)(a)(ii)	Exempt in full Page 15, second sentence of paragraph 6 Page 16; third sentence of paragraph 2 Page 15, paragraph 3 (other than third sentence) First question and answer on page 6; page 15, paragraph 2; third sentence of paragraph 3 on page 15 Pages 18 to 31	Page 15, paragraph 5, second sentence	Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(b)
100 2 pgs	Stockholm, originating post	Canberra, receiving post	07/02/03	Cable reporting on another country’s communications with the US in relation to the Hicks matter	s33 certificate	Exempt in part	Whole document (except for addresses at end of document)	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
101 2 pgs	Canberra, originating post	Washington, receiving post	21/02/03	Cable reporting on communications with the US in relation to the Hicks matter	s33 certificate	Exempt in part Release remainder of document	Text of the summary	Disclosure would cause damage to Australia’s international relations	(a)
102 3 pgs	DFAT	Undated	Talking Points prepared in relation to detention of Mr Hicks	s41 s22(1)(a)(ii)	Exempt in part Page 2, final paragraph over to page 3 (other than where irrelevant) Page 2, final paragraph, all of second sentence and all of third sentence except for last 6 words Page 3, paragraph 1; all references to a third party individual (not Mr Hicks) Release remainder of document
103 3 pgs	Washington, originating post	Canberra, receiving post	03/03/03	Cable reporting on communications with the US in relation to the Hicks matter	s33 certificate s22(1)(a)(ii)	Exempt in part Text of summary and paragraphs 1 to 3 Release remainder of document	Paragraph 5	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
104 2 pgs	Copenhagen, originating post	Canberra, receiving post	12/03/03	Cable summarising press reports of talks held in relation to Danish detainee at Guantanamo Bay	Release whole document
105 4 pgs	Washington, originating post	Canberra, receiving post	12/03/03	Cable reporting on communications with the US in relation to the Hicks matter	s33 certificate	Exempt in part Release remainder of document	Text of the summary and paragraphs 1 to 3	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)
106 1 pg	Stockholm, originating post	Canberra, receiving post	13/03/03	Cable regarding US visit	s33 certificate	Exempt in part Release remainder of document	Text of the summary	Disclosure would cause damage to Australia’s international relations Disclosure would divulge information communicated in confidence by or on behalf of a foreign government to the Australian Government	(a) (b)