Re Prinn and Department of Defence
[2016] AATA 445
•29 June 2016
Prinn and Department of Defence (Freedom of Information) [2016] AATA 445 (29 June 2016)
Division: FREEDOM OF INFORMATION DIVISION
File Number: 2014/4841
Re: KEITH PRINN
APPLICANT
And:DEPARTMENT OF DEFENCE
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 29 June 2016
Place Melbourne
The Tribunal decides:
to affirm the decision of the Privacy Commissioner dated 29 August 2014 affirming a decision of the respondent dated 27 July 2012.
……[sgd]……………….
Deputy President
CATCHWORDS – FREEDOM OF INFORMATION – whether documents, or parts of documents exempt under s 33(a)(i) – whether disclosure would, or could reasonably be expected to, cause damage to the security of the Commonwealth – decision affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 33, 37
Australian Information Commissioner Act 2010 ss 12 and 8(h);
Australian Security and Intelligence Organisation Act 1979 ss 4, 6, 17
Australian Security Intelligence Organisation Act 1956
Australian Security Intelligence Organisation Act 1976
Crimes Act 1914 s 70
Criminal Code 1995 Division 72, 119; Part 5.3 s 100.1, 100.1(1), 100.1(2), 100.1(3)Freedom of Information Act 1982 ss 4, 4(1), 4(5), 11(1), 11(2), 11A, 11A(3), 11A(4), 11A(5), 11B, 11C, 11C(1), 11C(1)(c), 11C(2), 11C(3), 11C(4), 11C(5), 11C(6), 11C(7), 12, 13, 15(2), 15(2A), 20, 22, 23, 24, 24A, 24AA, 24AB, 29, 31, 31B, 31B(a), 31B(b), 33, 33(a), 33(a)(i), 34, 42, 47, 47(1)(b), 47B(a), 47C, 47D, 47E, 47E(a), 47F, 47G, 55G, 55K, 93A, 93A(2), 93A(3)
Inspector-General of Security and Intelligence Act 1986 s 8
Intelligence Services Act 2001 ss 6, 6B, 7, 13A
Legislative Instruments Act 2003 s 5
Migration Regulations 1994
National Security Information (Criminal and Civil Proceedings) Act 2004
Office of National Assessments Act 1977 s 5
Safety, Rehabilitation and Compensation Act 1988 s 67(8)CASES
Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404; 50 ALR 41
Attorney-General’s Department and Another v Cockcroft (1986) 10 FCR 180; 64 ALR 97
Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227; 247 ALR 646
Australian Securities & Investments Commission v P Dawson Nominees Pty Ltd [2009] FCAFC 183
Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25; 43 ALR 587Comcare v Labathas [1995] FCA 1702; (1995) 61 FCR 149; (1995) 133 ALR 744; 22 AAR 295; 40 ALD 255
Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634Footscray Corp v Maize Products Pty Ltd [1943] HCA 15; (1943) 67 CLR 301
Jaffarie v Director General of Security [2014] FCAFC 102; (2014) 226 FCR 505
Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 34 ALR 639
Plaintiff B60/2012 v Minister for Foreign Affairs [2013] FCA 1303; (2013) 219 FCR 109; 306 ALR 478
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 327 ALR 8; 148 ALD 206
R v Lodhi [2006] NSWSC 596; (1999) 199 FLR 270
Re Aldred and Department of Foreign Affairs and Trade [1990] AATA 833
Re Dreyfus and Secretary, Attorney-General’s Department [2015] AATA 962Re Dunn and Department of Defence [2004] AATA 1040; (2004) 84 ALD 419; 39 AAR 322
Re Ewer and Australian Archives (1995) 38 ALD 789Re Francis and Department of Defence [2012] AATA 838; (2012) 59 AAR 35
Re Hocking and Department of Defence [1987] AATA 602
Re Jones and Australian Federal Police [2016] AATA 329
Re O’Donovan and Attorney-General’s Department (1986) 8 ALD 528; 4 AAR 151
Re Rovere and Secretary, Department of Education and Training [2015] AATA 462
Re Secretary, Department of Prime Minister and Cabinet and Wood [2015] AATA 945
Re Slater and Cox (Director-General of Australian Archives) [1988] AATA 110
Re Throssell and Australian Archives [1987] AATA 453Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 36 FCR 111; 108 ALR 163
Spencer v Commonwealth of Australia [2012] FCAFC 169; (2012) 206 FCR 309
Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299; 224 ALR 666; 88 ALD 520
Watson v AWB [2009] FCA 1047; (2009) 259 ALR 524
Zarro v Australian Securities Commission [1992] FCA 233; (1992) 36 FCR 40
OTHER MATERIALS
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd
Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University PressREASONS FOR DECISION
On 16 February 2012, Mr Prinn made a request to the Department of Defence (Department) for access to records associated with his security clearance. The Department has given him access to some documents but has refused him access to all or parts of Documents 51, 53, 106, 107, 131 and 132. At Attachment D to these reasons, I have described the documents and set out the terms of the Department’s decision as it applies to each. The Department made its decision on the basis that disclosure of the documents or parts of the documents, would, or could reasonably be expected to cause damage to the security of the Commonwealth under s 33(a)(i) of the Freedom of Information Act 1982 (FOI Act). It claimed that the documents, or those parts of them as identified, are exempt under that section. In the alternative, the Department claimed that the documents, or parts of them, are exempt under s 47E of the FOI Act. Despite its decision and as it was entitled to do, the Department gave Mr Prinn “supervised access” to the documents outside the parameters of the FOI Act. He was not permitted to take copies of the documents or to take notes of them. Such restrictions would not apply were Mr Prinn given access to the documents under the FOI Act and he continued to seek access to them by applying to the Information Commissioner (IC) for review of the Department’s decision.
On 29 August 2014, the Privacy Commissioner[1] decided to affirm the Department’s decision dated 27 July 2012. I have also decided to affirm that decision under s 33(a)(i) on the basis of evidence presented on behalf of the Department and by Mr Prinn and have not required the Department to produce evidence to support its contention that the documents are exempt under s 47E.
[1] The Privacy Commissioner is permitted to perform the freedom of information functions, which include those of reviewing decisions under Part VII of the FOI Act: Australian Information Commissioner Act 2010; ss 12 and 8(h).
BACKGROUND
In this section of my reasons, I will briefly outline the matters that led to Mr Prinn’s making his request under the FOI Act. They are matters that are understandably of deep concern to Mr Prinn but they are not matters in relation to which I make any findings of fact. I do not do so for they go to the reasons for his making his request. As I mention at [18] below, his reasons do not affect his right of access. They neither extend nor diminish it. Section 33(a)(i), on which the Department relies in claiming that parts of the documents Mr Prinn seeks are exempt does not allow me to have regard to other competing public interests. It does not allow me to weigh any public interest in, for example, ensuring that the Department is carrying out its intelligence functions, or some particular aspects of them, efficiently, effectively and with integrity, against the public interest in protecting the security of the Commonwealth.
Mr Prinn was formerly an employee of the Department of Defence (Department). He was a subject matter expert in the area of Personnel Security clearances. In February 2009, he first became ill. As I understand him, Mr Prinn attributed his illness to what he saw as the workplace culture and bullying by certain senior officers in the Department and his concerns about what he saw as severe threats to national security though a lack of professionalism and the destruction of standards in relation to the Top Secret Positive Vetting (TSPV) clearances being processed in his area of the Department. His illness led to his being placed on extended leave in mid 2010. As a result, his own TSPV came under review for cause in December 2010. Mr Prinn alleges that the review process was unethical and, at times, corrupt. The officer who had instigated the review was a witness in the review as well as the person to whom the recommendations of the reviewer were made. He was also a person authorised to make the final decision in relation to Mr Prinn’s TSPV.
When, in mid October 2011, Mr Prinn complained of these matters, he understood that the first officer would no longer have access to his file and that another officer would be the delegate. He requested access to documents related to the process on 16 February 2012. When, despite Mr Prinn’s enquiries, the review had not led to a decision by April 2012, he escalated his enquiries to the Department’s Secretary. He was advised that, as he had accepted a transfer to another position some weeks earlier and as that position did not require TSPV clearance, a new clearance would be undertaken at the Secret level only (Negative Vetting Level 1).
The Department granted access to some documents in response to his request. Following that, Mr Prinn raised his concerns with a Deputy Secretary of the Department regarding the process in dealing with staff clearances. He felt that the documents to which he had been given access showed a greater level of unethical conduct, ignoring the conflicts of interest In July 2013, Mr Prinn again raised issues of what he saw as unethical conduct, conflict of interest and breaches of confidentiality with the Deputy Secretary. He was not satisfied with the response he received. Mr Prinn has since raised issues of this sort with the Inspector-General of Intelligence and Security (IGIS), the Inspector-General Defence under the Public Interest Disclosure Scheme and the Ombudsman. He has put forward his case that he was denied his right to have a fair and unbiased process and denied procedural fairness in contravention of the guidelines laid down by the Attorney-General’s Department.
The events, Mr Prinn has said, have led to his experiencing a level of suffering that has had an immense impact on his closest personal relationships with his family and friends. They have significantly exacerbated his existing medical conditions that eventually led to his retiring in 2014 on medical grounds at the age of 56. In 2014, Comcare accepted that Mr Prinn’s illness was compensable. The loss of his job has, in turn, has had a significant impact on his financial circumstances with the result that he has had to restrict and curtail his standard of living for the rest of his life due to the early termination of his working life. Mr Prinn feels that his sense of worth had been destroyed as has his standing in the Defence security and intelligence community. His work at the Department was not just a job but a calling for him and a calling that enabled him to perform real and genuinely valuable work directed to fostering and supporting the national security of his country.
Later in these reasons, I will return to Mr Prinn’s submissions in relation to the evidence given by Ms Elizabeth Milne and to those addressing the exemption claimed by the Department under s 33(a)(i).
THE REQUEST
On 16 February 2012, Mr Prinn requested access to records associated with his security clearance. He gave details of those records in the following terms:
“1. Please provide copies of all records held on my personal security files including psychological suitability assessment records and file.
2.Printed copies of electronic records from DSA PSAMS system that show identities/positions of all officers that have accessed my personal security files or electronic records since Jan 01 2009 and the dates/periods concerned. This should also include the record on the data base which outlines the dates of recommendations made by the various DSA staff involved and the dates that the file was referred on to the next officer in the decision process.
3.Any e-mails associated with the review of my security clearance initiated by DSA in Dec 2010/conducted during 2011. This should include, but not be specifically limited to, any relevant e-mail records of the following DSA staff (past and present) … , any staff of the Complex Vetting Team (since Jan 2011), any staff in the psych team (also since Jan 2011), and any staff member who PSAMS indicates as having accessed my security records since Jan 2009.”[2]
[2] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T3 at 8
The Department undertook a consultation process under s 24AB leading to Mr Prinn’s limiting his request to:
(1)All documents on Mr Prinn’s security file, including psychology documents, since 1 January 2009; (Item 2); and
(2)Printed copies of electronic records from the DSA PSAMS system that show the dates of recommendations/decisions made by DSA staff relating to Keith Prinn’s personal security file and the dates that the file was referred on to the next officer in the decision process. (Item 2)
THE DECISIONS
On 4 June 2012, an authorised decision-maker under the FOI Act, identified a number of documents meeting Mr Prinn’s request. She decided to grant access to 70 Series in full. Others, she refused access to on the basis that they could not be found within the meaning of s 24A of the FOI Act. She denied access to 16 Serials in full on the basis that they are exempt under s 33(a)(i) but granted access to 30 other Serials after deleting passages for which the Department claimed exemption under ss 33(a)(i), 47F or 47G of the FOI Act. In making the deletions, the authorised officer relied on s 22 of the FOI Act.
On 27 June 2012, Mr Prinn sought review of the decision. In the process of carrying out that review, a further 33 Serials (consisting of 171 pages) were identified as coming within the terms of Item 1 of Mr Prinn’s request. An officer of the Department authorised by its Secretary under s 23 of the FOI Act decided that 14 Serials were exempt in their entirety under s 33(a)(i) or 47E. Pages or passages of other documents were exempt under ss 33, 47E, 47F and/or 47G but a copy of the document could be made in accordance with s 22 from which the exempt material had been deleted. Mr Prinn was given access to the resulting copy. He was also given access to a further four documents without deletions.
On 7 July 2013, Mr Prinn applied to the IC for review of that decision. Mr Prinn and the Department decided to limit the documents in dispute to Serials 51, 53, 55, 106, 107, 131 and 132. Under s 55G of the FOI Act, the Department made a revised decision granting Mr Prinn access to further documents. It did so on 3 December 2013.
On 11 March 2014, the Department purported to make a further substituted decision under s 55G. Its decision was to grant Mr Prinn access to all but one of the remaining documents but only on the basis that the access was by way of supervised inspection. The Department made that decision on the basis of its understanding that Mr Prinn had agreed to access on that basis. Mr Prinn had that access on 19 March 2014. Subsequently, on 19 March 2014, Mr Prinn advised the IC that he wished to proceed with his application for unrestricted access to the documents had had requested.
The IC subsequently carried out that review and, under s 55K, affirmed the decision made by the authorised officer on internal review. He decided that the Serials are exempt, in part, under s 33(a)(i) of the FOI Act.
THE ISSUES
The documents, or parts of documents, that remain in issue are Serials 51, 53, 55, 106, 107, 131 and 132. Details of the documents are set out in Attachment A to these reasons. The issues in this case are:
(1)whether Serials 51, 53, 55, 106, 107, 131 and/or 132 are exempt under s 33(a)(i);
(2)if all or any of the documents are not exempt under s 33(a):
(a)whether all or any are conditionally exempt under s 47E(a); and
(b)if so, whether giving access to those documents, or part of them, would be contrary to the public interest within the meaning of s 11A(5) of the FOI Act.
In view of my decision regarding the Department’s claim for exemption under s 33(a), I do not consider s 47E in this matter.
THE RIGHT OF ACCESS
Subject to the provisions of the FOI Act itself, every person has a legally enforceable right of access to obtain access, in accordance with its terms, to a document of an agency or a document of a Minister, other than an exempt document. This is the right established by s 11(1) of the FOI Act. It is a right that is not affected by any reasons the person gives for seeking access or any belief an agency or Minister may have as to what those reasons may be.[3] Corresponding with the right established by s 11(1) is the duty imposed on an agency or Minister by s 11A(3). It provides:
“The agency or Minister must give the person access to the document in accordance with this Act, subject to this section.”
[3] FOI Act; s 11(2)
It is clear from the way in which the right is expressed that it is not an unqualified right. It is qualified by two groups of considerations. The first group comprises what might broadly be described as procedural or administrative qualifications to the right. So, for example, a request for access must comply with certain procedural requirements.[4] The right does not extend to the types of documents described in ss 12 and 13. It may be restricted by reference to the workload a request imposes on an agency or Minister in dealing with it.[5] Charges may be imposed in respect of the request and processing of a request may be deferred pending payment of them.[6] If, subject to qualifications of this sort, the right exists, it is not a right to have access to a document in any form but in a form that is in accordance with the terms of the FOI Act.[7]
[4] FOI Act; ss 15(2) and (2A)
[5] FOI Act; ss 24, 24AA and 24AB
[6] FOI Act; ss 29 and 31
[7] FOI Act; s 20
The second group of considerations qualifies the right of access by reference either to the class of document or by the type of damage or harm that may follow disclosure under the FOI Act. An agency or Minister is not required by the FOI Act to give a person access to a document at a particular time if, at that time, the document is an exempt document.[8] An “exempt document” is a document that is exempt for the purposes of Part IV, a document in respect of which an agency, person or body is exempt from the operation of the FOI Act or an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.[9] A document is exempt for the purposes of Part IV if it is either an exempt document under Division 2 of that Part or is conditionally exempt under Division 3 and access to it would, on balance, be contrary to the public interest for the purposes of s 11A(5).[10]
[8] FOI Act; s 11A(4)
[9] FOI Act; s 4(1)
[10] FOI Act; s 31B and see [23]-[25] below
THE EXEMPTION
As originally enacted in 1982, its exemption provisions have their foundations in the common law in so far as they exempted from disclosure those documents that the courts would have said were exempt from discovery on the basis of considerations of public interest immunity (or Crown privilege as it was previously known) or on the basis of a common law rule of law. The Cabinet document exemption in s 34 is an example of the former and legal professional privilege in s 42 and example of the latter. Both exemptions are framed by reference to the nature or class into which a document may be classified and not by reference to the harm that might result from disclosure under the FOI Act or by reference to other considerations.
The Cabinet document exemption set out in s 34 follows closely the general principles established by the High Court in Sankey v Whitlam[11] in relation to claims of Crown privilege.[12] It does so by prescribing the limits of the exemption by reference to a class of documents and not by reference to the harm that would result from disclosure of a particular document. As the common law does, it excludes from that class, documents that have been officially published. The common law recognises that, in legal proceedings, a party may object to producing documents on the ground that they are members of a class of documents entitled to protection from production regardless of their contents. As Griffiths ACJ said, however:
“… the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. …”[13]
[11] [1978] HCA 43; (1978) 142 CLR 1; Gibbs ACJ, Stephen, Mason, Jacobs and Aickin JJ
[12] “… Judicial descriptions of the general doctrine of Crown privilege must necessarily be affected by the facts of the case in hand; they cannot be applied to wholly unforeseen and quite different circumstances and used as rules of law governing those circumstances. …” [1978] HCA 43; (1978) 142 CLR 1 at 57 per Stephen J.
[13] [1978] HCA 43; (1978) 142 CLR 1 at 43
The exemption provided for in s 34 differs from the common law in that it does not contain a balancing test. If the document falls within the class described, it is exempt. It is not subject to a public interest test under s 11A(5). That is consistent with the fact that a request for access to documents made under the FOI Act is not made in any particular context. Indeed, the purpose for which a person requests access does not affect his or her right of access to a document.[14]
[14] FOI Act; s 11(2)
Other exemptions are crafted by reference to the harm that would, or could reasonably be expected to, result from access under the FOI Act. Section 47 relating to documents disclosing trade secrets or commercially valuable information is an example. In the case of information having a commercial value, the question is whether that value would be, or could reasonably be expected to be, destroyed or diminished if it were disclosed.[15] There is no balancing of the public interest in ensuring that information having a commercial value is protected against a public interest in, say, sharing that information for the greater good. The public interest in protecting information of that sort would be balanced against the interests of justice if production of the document were called for in legal proceedings but, for the reasons I have given, not under the FOI Act.
[15] FOI Act; s 47(1)(b)
Division 3 of Part IV of the FOI Act sets out conditional exemptions. They may be framed in terms of the type of document[16] or by reference to the harm that would, or could reasonably be expected to, follow from disclosure under the FOI Act.[17] Section 11A(5) provides:
“The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.” (emphasis added)
The emphasis on the time in s 11A(5) clearly indicates that both the status of a document as exempt or otherwise and the application of the public interest test are to be considered by reference to the events of the time. Some of the factors that might be relevant and those that are irrelevant are set out in s 11B. What would, and would not, be contrary to the public interest changes as the environment in which access would be given changes. It may be that announcements have been made by government that have an impact, other events have happened or that time has simply passed and what was contrary to the public interest in the past is no longer.
[16] Documents disclosing deliberative processes within the meaning of s 47C is an example.
[17] Section 47D is an example when it provides that “A document is conditionally exempt if its disclosure under this Act would have a substantial adverse effect on the financial or property interests of the Commonwealth, of Norfolk Island or of an agency. …”.
PUBLICATION
If an agency or Minister gives a person access to a document under s 11A, regard must be had to the obligation imposed by s 11C(1), (2) and (3) to publish within ten working days after the day on which access was given.[18] It should be noted at the outset that the obligation does not relate to the document to which access has been given but to the information contained in the document. Even then, it does not apply to all information. Section 11C(1) excludes:
“(a) personal information about any person, if it would be unreasonable to publish the information;
(b)information about the business, commercial, financial or professional affairs of any person, if it would be unreasonable to publish the information;
(c)other information of a kind determined by the Information Commissioner under subsection (2), if it would be unreasonable to publish the information;
(d)any information, if it is not reasonably practicable to publish the information under this section because of the extent of any modifications to a document (or documents) necessary to delete information mentioned in paragraphs (a) to (c).”
For the purposes of s 11C(1)(c), the IC may make a determination by legislative instrument.[19] To date, he has not made any.
[18] FOI Act; ss 11C(6) and (7)
[19] FOI Act; s 11C(2)
Section 11C(3) requires an agency or Minister to publish the information to members of the public generally on a website in one of three ways it specifies. Any charges that may be imposed for accessing that information are restricted to those provided for in ss 11C(4) and (5).
THE GUIDELINES
Section 93A of the FOI Act makes provision for Guidelines:
“(1) The Information Commissioner may, by instrument in writing, issue guidelines for the purposes of this Act.
Note:For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901.”
(2)For the purposes of the performance of a function, or the exercise of a power, under this Act, regard must be had to any guidelines issued by the Information Commissioner under this section including, but not limited to, guidelines issued for the purposes of the following provisions:
(a)paragraph 9A(b) (information publication scheme);
(b)subsection 11B(5) (public interest factors);
(c)subsection 15(5A) (decisions on request).
(3)Guidelines are not legislative instruments.”
At Attachment A to these reasons, I explore the nature of the obligation that s 93A(2) imposes upon those performing a power or function under the FOI Act. It forms part of these reasons.
THE EXEMPTION CLAIMED: section 33(a)(i)
The provision
Section 33(a)(i) of the FOI Act provides that:
“A document is an exempt document if disclosure of the document under this Act:
(a)would, or could reasonably be expected to, cause damage to:
(i)the security of the Commonwealth;
(ii)…;
(iii)…”
As s 33(a)(i) comes within Division 2 of Part IV of the FOI Act, any document that comes within its terms is an exempt document.[20] It is not subject to the further public interest test set out in s 11A(5), as would be the case if it were a conditionally exempt document.[21]
[20] Paragraph (a) of the definition of “exempt document” in FOI Act s 4 and see also s 31B(a)
[21] Paragraph (a) of the definition of “exempt document” in s 4 and see also s 31B(b)
Section 4(5) expands on what is meant by the “security of the Commonwealth”:
“Without limiting the generality of the expression security of the Commonwealth, that expression shall be taken to extend to:
(a)matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth; and
(b)the security of any communications system or cryptographic system of the Commonwealth or of another country used for:
(i)the defence of the Commonwealth or of any country allied or associated with the Commonwealth; or
(ii)the conduct of the international relations of the Commonwealth.”
At Attachment A, I set out my understanding of the meaning and scope of s 33(a). The Attachments to these reasons are part of them but I have separated the issues they consider for ease of reading.
ACCESS TO EDITED COPY WITH EXEMPT MATTER DELETED
If a document is an exempt document but would not be if certain information were deleted, an agency or Minister must have regard to s 22. If it is reasonably practicable for an agency or Minister to prepare a copy from which those deletions have been made and it is not apparent that the person requesting the document would decline access to an edited copy, the agency or Minister is obliged to give access to such a copy. In deciding whether it is reasonably practicable to make an edited copy, regard is to be had to the nature and extent of the modification and the resources available to modify the document.
Mr PRINN’S SUBMISSIONS
Mr Prinn said that he understood that the law might see release of the documents to him as release to the world but thought that, from a commonsense point of view, his intentions should also be considered. He did not make his request under the FOI Act in order to undo the whole security clearance process or to broadcast the contents of the documents to the world at large. His intention is to uncover and understand the whole depth of what has happened to him. In addition, he wanted to be accorded the rights that arise under various legislation, policies and guidelines governing administrative, investigative and employment processes. Mr Prinn has a deep concern regarding the processes and practices that have developed around the vetting process. He has raised his concerns but feels that they have been disregarded. As a result, he feels that changes to the security vetting processes have severely undermined the effectiveness of the process in terms of quality and value.
CONSIDERATION
In reviewing a decision under the FOI Act, I am bound to exercise only the powers it confers and to do so within the boundaries defined within that legislation. There is no room for me to exercise my discretion. Therefore, if I find that a document is an exempt document, I cannot decide that there would be no harm in disclosing it to an applicant who requested access to it under the FOI Act. I am expressly forbidden from doing that by s 58(2) of the FOI Act. That provision states that, in those circumstances, “… the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.” It does not matter whether the person requesting access to an exempt document has the most worthy and honourable intentions in mind.
Section 11(2) of the FOI Act defines the right of access under the FOI Act in terms of its being a right that is not affected by any reasons the person gives for seeking access or by any reasons an agency or Minister may believe person has. It must be noted, however, that s 11(2) opens with the words “Subject to this Act”. That brings into play a qualification to the general statement that the right of access is not affected by a person’s reasons. In the case of a document that is conditionally exempt, a person’s reasons may be relevant in ascertaining competing public interests for the purposes of the determining whether access to a conditionally exempt document would, on balance, be contrary to the public interest. Conditional exemptions are set out in Division 3 of Part IV of the FOI Act.
The qualification to the general statement does not apply when a document is exempt under Division 2 of Part IV of the FOI Act. Unlike the conditional exemptions it has prescribed in Division 3 of that Part, Parliament does not permit the Tribunal to balance Parliament’s view of what the public interest requires against other public interests. In relation to exemptions prescribed in Division 2 of Part IV, Parliament has determined where the balance lies.
The exemption prescribed in s 33(a) falls within Division 2 of Part IV. If a document comes within that exemption, it follows from what I have said in the previous three paragraphs that it matters not at all whether there are sound reasons why information should be disclosed or whether the person seeking access will not reveal it to another in any circumstances. If a document is exempt, I cannot grant access to it under the FOI Act. Therefore, however worthy Mr Prinn’s intentions may be in seeking to have AGSVA’s vetting system reviewed, the Tribunal’s proceedings on review cannot be used as a forum in which to investigate the appropriateness of the vetting system, whether it accords procedural fairness to those being vetted or whether it is consistent with employment law and, if so, whether it should be.
Mr Prinn acknowledged that Ms Milne has a very good reputation but questioned her credibility in relation to the evidence that she gave about the PV clearance process and the risk that disclosure would, or could reasonably be expected to have, on national security. As Mr Ermert and I have said before in Re Dunn and Department of Defence,[22] that does not mean that mere assertion that information is said to relate to the Commonwealth’s defence or security merits its protection and so its exemption under s 33 of the FOI Act. That is not consistent with the terms of s 33 itself. Nor is it consistent with the notion that there must be evidence that supports the conclusion required by s 33 before a document can be found to be exempt under it. In Re Ewer and Australian Archives,[23] Deputy President McMahon said:
“(18) The evidence in the present case, on this aspect of the claim, consists almost entirely of the opinion of Mr Brown. He has been employed for 15 years with ASIO and has had responsibility for the development and management of human source operations and other operations under ASIO’s special powers during that time. In his affidavit, he said that he had recruited and run human sources and managed human source operations in the range of subject areas and had been responsible for the resettlement of human sources whose lives had been put at risk as a result of people becoming aware of their work with ASIO. I accept that from this experience, he is entitled to express certain opinions. He did this in paras 7 and 8 of his affidavit:
para 7 — In my view, the public disclosure of information concerning the existence, identity or management of a source would give rise to concern among ASIO’s existing and potential sources that the extent and nature of their assistance could be disclosed at some future date, even after 30 years.
para 8 — In my opinion this concern would diminish the willingness of ASIO’s present and potential sources, as well as members of the public who wish to assist the organisation, to continue providing ASIO with information relevant to security, and thus diminish the ability of the organisation to provide advice to government, and therefore damage the security of the Commonwealth.
(19) His opinion, however, is simply that. The assertion that disclosure would damage the security of the Commonwealth, in absence of any evidence to support it other than opinion evidence, is self serving. It is not the type of evidence referred to by Neaves J which would be required to sustain a claim for exemption on this ground. It is true, as was observed in Re Slater (at ALD 29), that security is a particularly sensitive area and particularly dependent for its effectiveness upon an adequate flow of information. I accept this as a notorious fact, and as one which was judicially approved by Davies J in Throssell No 1 at 406. Nevertheless, there must be more information or evidence of some probative value rather than a mere bald opinion to satisfy the onus which the respondent bears, that the expected diminution of the flow of information would occur.”[24]
[22] [2004] AATA 1040; (2004) 84 ALD 419; 39 AAR 322 at [121]; 453-454; 357-358
[23] (1995) 38 ALD 789
[24] (1995) 38 ALD 789 at 791-2
Ms Milne has gone beyond mere assertion of the damage that she perceives could be expected to follow from disclosure of the information in the documents to which Mr Prinn seeks access. In respect of her assertion that there is a reasonable likelihood that referees will be less open in their responses if they know that they may be disclosed to the clearance subject, Ms Milne referred to the response from one of Mr Prinn’s referees who expressed concern that disclosure would lead to referees’ being less forthcoming in the future and in being able to prepare their responses. Certainly, that is only one referee’s opinion but evidence must be viewed in its context and weighed with other relevant and probative evidence. Among that relevant and probative evidence is the information in the documents to which Mr Prinn has sought access. It may be that disclosure of referees’ comments to Mr Prinn may not have any effect on the particular relationship between him and his referees or whether it would impede his referees generally in their remarks but that is not the question to ask. The question is whether disclosure would, or could reasonably be expected to, have that effect more generally. Having regard to the nature of the questions asked and the responses given, I am satisfied that the question has to be answered in the affirmative.
Having regard to the documents under consideration, I am also satisfied that their disclosure would disclose the nature of the psychological tests that are administered, what may be regarded as characteristics or features that are relevant in assessing a clearance subject’s suitability to be given a security clearance at a certain level and how they are weighed. That information must be viewed against the background of the reason for the collection and analysis of the information. The reason is aligned with the reason for the introduction and maintenance of a system of security clearance at all. That is to say, it is aligned with the need to protect information held by the Australian Government. The system of security clearance has different clearance processes associated with the sensitivity of the information to which the person is, or may be, given access. The documents to which Mr Prinn seeks access relate to a clearance process for a TSPV security clearance. The document entitled “Information security management guidelines Australian Government security classification system” approved on 1 November 2014 and prepared by the Attorney-General’s Department sets out the way in which information should be classified. In the case of a classification of “Top Secret” it is information that:
“… requires the highest degree of protection as compromise of the confidentiality of information could be expected to cause exceptionally grave damage to the national interest.”[25]
[25] Ms Milne’s Affidavit at EM3; [66]
In light of this but also on the basis of Ms Milne’s evidence, I find that TSPV vetting and security vetting in general is intended to ensure that information that is sensitive and whose disclosure can affect the national interest is restricted to those who will protect it. I accept that the psychological tests and vetting process generally is directed to ascertaining whether a person will be able to protect it. Referees’ comments are part of that process. If, as I have found, it could reasonably be expected that referees may be inhibited in what they say about a person, I am also satisfied that the flow on effect is that it is a reasonable expectation that the national security could reasonably be expected to be damaged. I reach that conclusion even though there may be no damage in the sense of an inappropriate release of information. Such a release might well be seen as actual damage but, even in the absence of such a release, the damage would lie in the compromise of the security vetting process. The confidence that it can reasonably be expected to identify characteristics and features relevant to a clearance subject’s security classification will be diminished.
The same reasoning applies to clearance subjects themselves. If access to the documents were given to Mr Prinn, the publication provisions in s 11C would ensure that access would be available to all, including other clearance subjects. The nature of the questions asked and the information sought would enable clearance subjects to consider their answers and, consciously or otherwise, mould their answers. The damage that may reasonably be expected to follow from that would be the same. The processes are designed to elicit information so that it may be analysed for the purpose of assessing whether a person should be cleared to handle sensitive information and, if so, the level of sensitivity that the person is cleared to handle. If a clearance subject were able to mould their answers, the security vetting process would be open to manipulation. I accept Ms Milne’s evidence that it is not perfect but I am also satisfied that it could reasonably be expected to be compromised if access were given to information of the sort I have described. That in could reasonably be expected to compromise the security of information regarded by the Australian Government as requiring protection. In the case of the information sought by Mr Prinn, it could reasonably be expected to compromise the national security for the information he seeks relates to a TSPV security clearance process and so is directly relevant to the protection of information classified to the Top Secret level.
Some of the information for which exemption has been claimed relates to answers given by Mr Prinn himself. I am satisfied that, under s 22, it is not reasonably practicable for the Department to prepare a copy of the relevant documents from which it has been deleted. Unlike a conditional exemption, where the fact that it is Mr Prinn’s personal information would be a relevant consideration in considering whether, on balance, access to the document would be contrary to the public interest, its characterisation as his personal information is not relevant. The fact that it is Mr Prinn’s information does not alter its alternative characterisation as information of the sort to which I have referred in the previous paragraphs. It is exempt under s 33(a).
For the reasons I have given, I affirm the decision of the Privacy Commissioner dated 29 August 2014.
THE GUIDELINES
Section 93A of the FOI Act has been understood to apply to the Tribunal as much as it does to the primary decision-maker and every decision-maker in between. I have also understood it in that way but have struggled with it because it does not seem appropriate that a body that is charged with reviewing a decision-maker’s decisions and coming to a decision that is correct in law and on the evidence[26] should be required to have regard to the that decision-maker’s view of the law. I have set out what I think are the limits of its application.
[26] The Tribunal’s role is usually expressed as finding the “correct or preferable decision” i.e. the decision that is correct in law and on the evidence and, where the decision is discretionary and there may be more than one correct decision, which is the preferable of those decisions to make. See Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 636 per Brennan J, President. The Tribunal has no power to make discretionary decisions under the FOI Act. Not only is it not permitted to do so, it is expressly forbidden from doing so once it has been established that a document is an exempt document: FOI Act; s 58(2).
Application of s 93A if it applies to the Tribunal
As s 93A(3) states, the Guidelines are not legislative instruments. Had they been, they must have been validly made. Putting aside considerations such as reasonableness and proportionality, the essential steps that are taken to determine their validity are:
“… to construe the statute under which the by-law is made and then interpret it to ascertain whether it is within the ambit of the statute.”[27]
That requires a consideration of whether the power to make them has been:
“… exercised having regard to the purpose that underlies the empowering provision. Where that purpose is expressly stated, the task of the court in determining validity is to some extent made easier.”[28]
[27] Footscray Corp v Maize Products Pty Ltd [1943] HCA 15; (1943) 67 CLR 301 at 308 per Rich J
[28] Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299; 224 ALR 666; 88 ALD 520 at [112]; 332; 696; 550 per Weinberg J with whom Black CJ agreed on this issue.
The fact that the Guidelines made under s 93A of the FOI Act are not legislative instruments, means that they cannot have any effect in determining or altering the content of the law and cannot have any direct or indirect effect on a right or obligation under the FOI Act.[29] That does not mean that the approach to their interpretation is any different, though, from that which applies to legislative instruments. They must be made within the power that has been granted. The only way in which that can be determined is to construe the FOI Act under which they are made and then interpret the Guidelines to ascertain whether they have been made within the ambit of that statute. It follows that regard cannot be had to the Guidelines to determine the proper interpretation of the FOI Act generally or of a particular provision. It is the FOI Act that is the reference point for the Guidelines’ validity and it, and not the Guidelines, determine the content of the law that Parliament has enacted. The reference point is informed by the relevant High Court and Federal Court authorities.
[29] See definition of “legislative instrument”: Legislative Instruments Act 2003; s 5
It seems to me that, in s 93A(2), Parliament has implicitly recognised that the Guidelines have no role to play in the interpretation of the FOI Act. That subsection states that they are made for the purposes of the “performance of a function, or the exercise of a power, under this Act”. It does not state that they are made for the purposes of identifying the scope of the function that is to be performed or that of the power that is to be exercised. They are made for the performance of one and the exercise of the other. That, in turn, is consistent with the nature of guidelines of this sort. The power and function is determined by reference to the legislation passed by Parliament but guidelines are developed as to the way in which a function is performed or a power exercised.
As authorities have stated over the years, guidelines of this sort play an important role in administrative decision-making. The High Court addressed this quite recently in Plaintiff M64/2015 v Minister for Immigration and Border Protection[30] (Plaintiff M64). The plurality, French CJ, Bell, Keane and Gordon JJ said:
“ Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike … In particular, policies or guidelines may help to promote consistency in ‘high volume decision-making’, such as the determination of applications for Subclass 202 visas. Thus in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) …, Brennan J, as President of the Administrative Appeals Tribunal, said that ‘[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable’ because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by ‘diminishing the importance of individual predilection’ and ‘the inconsistencies which might otherwise appear in a series of decisions’ …. The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines. The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open-textured criterion of ‘compelling reasons for giving special consideration’ is readily apparent.”[31]
[30] [2015] HCA 50; (2015) 327 ALR 8; 148 ALD 206
[31] [2015] HCA 50; (2015) 327 ALR 8; 148 ALD 206 at [54]; 21-22; 219 (citations omitted); Gageler J expressing a similar view at [68]-[69] but, referring to the judgment of Deane J in Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 34 ALR 639 at 647 “… emphasised the importance of the adoption and consistent application of policy to the avoidance of substantial injustice in administrative decision-making, which involves ‘competition or correlativity between rights, advantages, obligations and disadvantages’. Each applicant must always be entitled to have his or her application for the exercise of a decision-making power determined on its merits. But the merits of an application cannot always adequately be considered by reference to the circumstances of the applicant alone.”
Even though they play such an important role, Guidelines must not be followed without consideration of their validity. As Finn J said about a Practice Direction (Direction) made under s 33 of the Administrative Appeals Tribunal Act 1975 relating to the Tribunal’s power to award costs under s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act):
“… It is not open to doubt that that Direction cannot confer a jurisdiction on the Tribunal, a Registrar or a Deputy Registrar which is of larger compass that that which is given the Tribunal by the SRC Act, s 67(8) …”[32]
[32] Comcare v Labathas [1995] FCA 1702; (1995) 61 FCR 149; (1995) 133 ALR 744; 22 AAR 295; 40 ALD 255 at [22]; 154; 749; 300; 259; 259
In view of these principles, I respectfully note that I do not agree with the way in which Senior Member Popple, most recently in Re Jones and Australian Federal Police[33] (Jones), expresses his understanding of the obligations imposed by s 93A:
“… The FOI Guidelines are not binding, but decision makers, including this Tribunal, should apply the FOI Guidelines unless there are cogent reasons to the contrary…”[34] (emphasis added).
[33] [2016] AATA 329
[34] [2016] AATA 329 at [19] (footnotes omitted)
I agree that they are not binding but I disagree that decision-makers, including this Tribunal, “should” apply the Guidelines. The obligation is to have “regard” to them i.e. “… to take into account; consider. …”.[35] It is not to “apply” them i.e. “… bring to bear, put into practical operation, as a principle, rule, law, etc …”.[36] Regard can only be had to them if they are made lawfully i.e. within the scope of the power conferred by s 93A and consistently with the FOI Act. Decision-makers cannot be required to have regard to the Guidelines in so far as they relate to the interpretation of the FOI Act. Section 93A(2) limits the power to issue Guidelines for the purposes of the performance of a function or the exercise of a power under that legislation. For those purposes, regard must be had to them and there can be no doubt about that. A modern statement of the importance of guidelines of this sort has been made in Plaintiff M64, to which I have referred at [50] above.
[35] Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd (Macquarie)
[36] Macquarie
The three authorities to which Senior Member Popple referred do not lead me to a different conclusion. I have already explained in Re Secretary, Department of Prime Minister and Cabinet and Wood[37] (Wood) why I do not agree with the analysis put forward in two of them: Re Francis and Department of Defence[38] (Francis) and Re Rovere and Secretary, Department of Education and Training[39] (Rovere). Without repeating them, I adopt my reasons in that case.
[37] [2015] AATA 945 at [23]–[27]
[38] [2012] AATA 838; (2012) 59 AAR 35 at [18]; 39–40 per Deputy President Jarvis
[39] [2015] AATA 462 at [12] per Senior Member Popple
That brings me to the third of the authorities referred to in Jones: Re Dreyfus and Secretary, Attorney-General’s Department[40] (Dreyfus). Paragraph 33 was relied upon. It reads:
“ The Secretary submits that the Tribunal must determine the application on its merits informed, but not bound, by the Guidelines and that the Tribunal should apply the Guidelines unless there are cogent reasons to the contrary (Re Francis and Department of Defence [2012] AATA 838; (2012) 59 AAR 35 at [18]).
[40] [2015] AATA 962 at [33] per Bennett J
In this paragraph, Bennett J has repeated the submission that was made. She has not expressed any view as to whether she accepts it or not. Standing alone, therefore, [33] cannot be regarded as authority for the proposition put forward in Jones. That is not to say that Bennett J did not have regard to the Guidelines. She did but she also considered whether they accorded with the FOI Act. I will give two examples:
“ The Guidelines set out matters relating to the decision on request for access. In each aspect, the Guidelines emphasise the importance of the facilitation and promotion of public access to information. This accords with the general objects as set out in s 3 of the Act, which embody a policy – or presumption – of open government that is relevant to all FOI decision making (s 3(1)). As relevant to the present consideration, the Guidelines mirror the objects of the Act.”[41]
“… The Guidelines are helpful in providing examples of public interest factors as provided for in s 11B of the Act, in accordance with and in the context of the objects of the Act.”[42]
[41] [2015] AATA 962 at [46]
[42] [2015] AATA 962 at [66]
Her Honour also tangentially referred to a tension that arises from the fact that s 93A gives the IC power to make Guidelines, to which the Tribunal must have regard for the purposes of the performance of a function, or the exercise of a power, under this Act, and the Tribunal’s duty to review the IC’s decision if an application is made to it. After setting out the IC’s decision under s 22 as to whether it was reasonably practicable for the Attorney-General’s Department to prepare an edited copy which would not contain exempt matter or information irrelevant to the request, Bennett J said:
“ In the Guidelines, the Commissioner relied upon his decision in the present case [Dreyfus] to state that a common sense view should be taken at deletions and that the purpose of providing access to government information under the Act may not be served if extensive editing is required but leaves only a skeleton of the formal document that conveys little of content or substance.”[43]
Her Honour did not make any further reference to the tension revealed by this passage. While I can understand the IC’s wish to keep the Guidelines up to date, I respectfully suggest that the Tribunal should not have regard to those parts of the Guidelines that rely on the IC’s decisions that remain subject to the review processes provided for in the FOI Act and any subsequent appeals. That does not mean that the Tribunal may not come to the same conclusion but it will come to it by means of the interpretation of the FOI Act.
SECTION 33(a): documents affecting national security
[43] [2015] AATA 962 at [114]
“Would, or could reasonably be expected to”
On behalf of the Department, Mr Davidson referred to the Guidelines issued by the IC under s 93A of the FOI Act (Guidelines). In particular, he referred to [5.13] where it is said that:
“5.13 The test requires the decision maker to assess the likelihood of the predicted or forecast event, effect or damage occurring after disclosure of a document.
5.14 The use of the word ‘could’ in this qualification is less stringent than ‘would’, and requires analysis of the reasonable expectation rather than certainty of an event, effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future. … [Re Maksimovic and Australian Customs Service [2009] AATA 28].”
The expression “would, or could reasonably be expected” is used as a measure of the outcome that is described in s 47B(a) i.e. that disclosure under the FOI Act would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State. In its ordinary usage, the word “would” suggests that, as a matter of probability, disclosure under the FOI Act would lead to that outcome as a logical or necessary consequence.[44] In its ordinary usage, the word “could” is “used to express a possibility”[45] that would be the outcome but the word is qualified by the words “reasonably be expected to” and all the words must be understood as they stand together rather than individually.
[44] Chambers
[45] Chambers
The expression “could reasonably be expected to” has been considered in past authorities. They establish:
(1)“In our opinion, in the present context, the words ‘could reasonably be expected to prejudice the future supply of information’ were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based (see Kioa v West (1985) 60 ALJR 113 per Mason J and Gibbs CJ).”[46]
(2)“… stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.”[47]
(3)In the application of an exemption such as s 47B(a) requiring consideration of whether an outcome would, or could reasonably be expected to follow from disclosure under the FOI Act, “… there would ordinarily be material before the decision-maker which would show whether or not the … [outcome could be expected to follow] if the information were disclosed. It would be for the decision-maker to determine whether, if there were an expectation that this would occur, the expectation was reasonable.”[48]
“cause damage to … the security of the Commonwealth”
[46] Attorney-General’s Department and Another v Cockcroft (1986) 10 FCR 180; 64 ALR 97 at 190; 106 per Bowen CJ and Beaumont J
[47] (1986) 10 FCR 180; 64 ALR 97 at 196; 112 per Sheppard J
[48] Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 36 FCR 111; 108 ALR 163 at 123; 176 per Davies, Wilcox and Einfeld JJ
A. The Guidelines
What s 33(a)(i) requires me to assess is the likelihood of damage to the security of the Commonwealth. I have set out the meaning given to that expression in s 4(5) above but it is not an exhaustive definition. I will return to that in a moment. The Guidelines repeat the substance of that provision at [5.26]. They then go on to state at [5.27]:
“A decision maker must be satisfied that damage to the security of the Commonwealth would be caused by disclosure of the information under consideration. The claim has been upheld in the following situations:
(a) If the release of a document would prevent a security organisation from obtaining information on those engaged in espionage, it could reasonably be expected to cause damage to national security if such a document were released.13 [[49]]
(b) The disclosure of a defence instruction on the Army’s tactical response to terrorism and procedures for assistance in dealing with terrorism would pose a significant risk to security by revealing Australia’s tactics and capabilities.14[[50]]
(c) Documents revealing, or which would assist in revealing, the identity of an ASIO informant were held exempt under a similar provision in the Archives Act.15 [[51]]”(emphasis added)
[49] Footnote 13: Re Slater and Cox (Director-General of Australian Archives) [1988] AATA 110
[50] Footnote 14: Re Hocking and Department of Defence [1987] AATA 602
[51] Footnote 15: Re Throssell and Australian Archives [1987] AATA 453
I note that, even though [5.27] is directed to s 33(a)(i), its opening words of [5.27] are not consistent with the words of the provision. Paragraph [5.27] narrows the scope of s 33(a)(i) when it states that “A decision maker must be satisfied that damage to the security of the Commonwealth would be caused by disclosure of the information under consideration. …” (emphasis added). Section 33(a)(i) draws within its scope those documents whose disclosure “could reasonably be expected to” cause damage of the sort it describes as well as those that “would”.
B. Ordinary meanings of “damage” and “security”
The Guidelines do not comment on the meaning of “damage”. When used as a noun, its ordinary meanings include “harm or injury”.[52]Although that suggests a wide compass, 33(a)(i) draws the boundaries for the damage must be to the “security of the Commonwealth”. I have set out the definition of that expression at [31] above but it is clear from its terms that it is not intended to be an exhaustive definition. That takes me to other sources in an endeavour to ascertain its ordinary meanings.
[52] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
The relevant meanings given in various dictionaries include:
“… 1 free from danger; providing safety. 2 protection from the possibility of future financial difficulty. 3 protection from theft □ Our house has good security. 5 the staff providing such protection against attack or theft. 6 freedom from vulnerability to political or military takeover □ national security. ...”[53]
“… 1. freedom from danger, risk, etc.; safety. 2. freedom from care, apprehension, or doubt; confidence. 3. something that secures or makes safe; a protection; a defence. 4. Protection from or measures taken against espionage, theft, infiltration, sabotage, or the like. …”[54]
“… 1 The condition of being protected from or not exposed to danger, safety; spec. the condition of being protected from espionage, attack, or theft. … }b The provision or exercise of measures to ensure such safety. Also (S-), a government department or other organization responsible for ensuring security. …”[55]
[53] Chambers
[54] Macquarie
[55] Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press
These meanings have three aspects. One is that of safety, protection or defence from something that is regarded as a danger. Financial difficulty, attack, theft and political or military takeover are given as examples. A second aspect refers to the means that may be employed either to bring about or to protect against danger of that sort. Examples of those means are espionage, theft, infiltration and sabotage. The organisations or personnel providing safety or protection from the relevant danger are the focus of the third aspect found in the definitions.
C. The legislative context
The assessment that s 33(a)(i) requires must be made at the time the decision is made and in the environment that exists at the time. Evidence has been given and I will return to that below. Also relevant is the legislative environment that exists pertaining to security. Parliament has enacted three pieces of legislation in that environment and created several bodies with various functions related to security. Those bodies represent the use of the word “security” in the third aspect of its ordinary meanings. They include the Australian Security and Intelligence Organisation (ASIO) continued in existence by the Australian Security and Intelligence Organisation Act 1979 (ASIO Act) and previously been continued in existence by the Australian Security Intelligence Organisation Act 1956 and the Australian Security Intelligence Organisation Act 1976.[56] Others include the Australian Secret Intelligence Service (ASIS), that part of the Defence Department known as the Australian Geospatial-Intelligence Organisation (AGO) and that part known as the Australian Signals Directorate (ASD) that are the subject of the Intelligence Services Act 2001 (IS Act) as well as the Office of National Assessments (ONA) established under the Office of National Assessments Act 1977[57] (ONA Act).
[56] ASIO Act; s 6
[57] Under s 8 of the Inspector-General of Security and Intelligence Act 1986, the Inspector-General of Intelligence and Security has oversight of, in summary, the lawfulness and proprietary of actions of the AGO, ASD, ASIS, DIO and ONA.
The functions assigned to each of these bodies shows that they are functions relevant to security. At the same time, they give a glimpse of the manner in which they carry out their functions and the limit of its functions. I will take ASIO as an example. Section 17 of the ASIO Act sets out its functions:
“(1) The functions of the Organisation are:
(a) to obtain, correlate and evaluate intelligence relevant to security;
(b) for purposes relevant to security, to communicate any such intelligence to such persons, and in such manner, as are appropriate to those purposes;
(c) to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities.
(ca) to furnish security assessments to a State or an authority of a State in accordance with paragraph 40(1)(b);
(d) to advise Ministers, authorities of the Commonwealth and such other persons as the Minister, by notice in writing given to the Director-General, determines on matters relating to protective security; and
(e)to obtain within Australia foreign intelligence pursuant to section 27A or 27B of this Act or section 11A, 11B or 11C of the Telecommunications (Interception and Access) Act 1979, and to communicate any such intelligence in accordance with this Act or the Telecommunications (Interception and Access) Act 1979; and
(f) to co-operate with and assist bodies referred to in section 19A in accordance with that section.
(2) It is not a function of the Organisation to carry out or enforce measures for security within an authority of the Commonwealth.”
“Security” is very much at the front and centre of ASIO’s functions. The harm or danger in respect of which security is required is apparent from the definition of the word “security” in s 4 of the ASIO Act. That section provides:
“security means:
(a) the protection of, and of the people of, the Commonwealth and the several States and Territories from:
(i) espionage;
(ii) sabotage;
(iii) politically motivated violence;
(iv) promotion of communal violence;
(v) attacks on Australia’s defence system; or
(vi) acts of foreign interference;
whether directed from, or committed within, Australia or not; and
(aa) the protection of Australia’s territorial and border integrity from serious threats; and
(b)the carrying out of Australia’s responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph (aa).”
The nature of the harm or danger is further identified in other definitions also set out in s 4 and expanding upon expressions used in the definition of “security”. They are:
“attacks on Australia’s defence system means activities that are intended to, and are likely to, obstruct, hinder or interfere with the performance by the Defence Force of its functions or with the carrying out of other activities by or for the Commonwealth for the purposes of the defence or safety of the Commonwealth.”
“acts of foreign interference means activities relating to Australia that are carried on by or on behalf of, are directed or subsidised by or are undertaken in active collaboration with, a foreign power, being activities that:
(a) are clandestine or deceptive and:
(i) are carried on for intelligence purposes;
(ii) are carried on for the purpose of affecting political or governmental processes; or
(iii) are otherwise detrimental to the interests of Australia; or
(b) involve a threat to any person.”
“foreign power means:
(a) a foreign government;
(b) an entity that is directed or controlled by a foreign government or governments; or
(c) a foreign political organisation.”
“politically motivated violence means:
(a) acts or threats of violence or unlawful harm that are intended or likely to achieve a political objective, whether in Australia or elsewhere, including acts or threats carried on for the purpose of influencing the policy or acts of a government, whether in Australia or elsewhere; or
(b) acts that:
(i) involve violence or are intended or are likely to involve or lead to violence (whether by the persons who carry on those acts or by other persons); and
(ii) are directed to overthrowing or destroying, or assisting in the overthrow or destruction of, the government or the constitutional system of government of the Commonwealth or of a State or Territory; or
(ba) acts that are terrorism offences; or
(c) acts that are offences punishable under Division 119 of the Criminal Code, the Crimes (Hostages) Act 1989 or Division 1 of Part 2, or Part 3, of the Crimes (Ships and Fixed Platforms) Act 1992 or under Division 1 or 4 of Part 2 of the Crimes (Aviation) Act 1991; or
(d) acts that:
(i) are offences punishable under the Crimes (Internationally Protected Persons) Act 1976; or
(ii) threaten or endanger any person or class of persons specified by the Minister for the purposes of this subparagraph by notice in writing given to the Director-General.”
“promotion of communal violence means activities that are directed to promoting violence between different groups of persons in the Australian community so as to endanger the peace, order or good government of the Commonwealth.”
“terrorism offence means:
(a) an offence against Subdivision A of Division 72 of the Criminal Code; or
(b) an offence against Part 5.3 of the Criminal Code.
Note: A person can commit a terrorism offence against Part 5.3 of the Criminal Code even if no terrorist act (as defined in that Part) occurs.”
In very general terms, the offences prescribed in Division 72 of the Criminal Code 1995 (Criminal Code) may be described as relating to explosives and lethal devices. Those in Division 119 are concerned with foreign incursions and recruitment and Part 5.3 with offences related to terrorism. Section 100.1, for example, falls within Part 5.3 of the Criminal Code. It provides that a person commits an offence if he or she engages in a “terrorist act”. A “terrorist act” is defined as:
“terrorist act means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within subsection (3); and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.”[58]
[58] Criminal Code; s 100.1(1)
Sections 100.1(2) and (3), to which this definition refers, provide:
“(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person’s death; or
(d) endangers a person’s life, other than the life of the person taking the action; or
(e) creates a serious risk to the health or safety of the public or a section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.
(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person’s death; or
(iii) to endanger the life of a person, other than the person taking the action; or
(iv) to create a serious risk to the health or safety of the public or a section of the public.
The functions of ASIS, AGO and ASD are set out in ss 6, 6B and 7 respectively of the IS Act. As the name of the legislation suggests, each is concerned with intelligence of various forms. The functions of ASIS are directed to obtaining intelligence about the capabilities, intentions or activities or people or organisations outside Australia generally. Those of AGO are directed to its obtaining geospatial and imagery intelligence about those capabilities, intentions or activities and the ASD to its obtaining intelligence about them in the form of electromagnetic energy. The purpose for which that intelligence is obtained is set out in ss 6, 6B and 7. In very broad terms, it is obtained for, but not limited to, the Government’s requirements and to meet the needs of the Defence Force. Within the parameters set out in the IS Act, ASIS, AGO and ASD may co-operate and assist certain other bodies, including ASIO, in the performance of their functions.[59]
[59] IS Act; s 13A
The functions of the ONA are set out in s 5 of the ONA Act. Again in the broadest of terms, the ONA is required to assemble and correlate information relating to international matters that are of political, strategic or economic significance to Australia. It is required to report on those that are of current significance and ensure that international developments of major importance to Australia are assessed on a continuing basis. The ONA coordinates the foreign intelligence activities that Australia engages in and evaluates those activities.
D. Authorities
This summary of the functions of the ONA, ASIS, AGO and ASD, together with those of ASIO, shows the scope of what is regarded as “security” and the inter-relationship of those matters with “intelligence”. It is apparent that Parliament has given the tools to agencies to both collect intelligence and to protect the integrity of its own information. Tools are given to protect Australia in relation to such matters as the integrity of its territory and borders, its political system, essential services and its defence. The need to use tools in relation to the protection of its security will vary from time to time. They will be the subject of various influences both domestically and internationally. Such matters can be very fluid. As Mason J said in Church of Scientology v Woodward[60] (Woodward):
“… security is a concept with a fluctuating content, depending very much on circumstances as they exist from time to time; it is similar to the constitutional concept of defence. …”[61]
[60] [1982] HCA 78; (1982) 154 CLR 25; 43 ALR 587
[61] [1982] HCA 78; (1982) 154 CLR 25; 43 ALR 587 at 60; 602
The applicants in Woodward had sought declarations that they were not security risks and that the then Director-General was acting outside his powers under the ASIO Act in gathering information about them, communicating that information to other persons and in characterising them as such. Within the very narrow confines of the application before it, the High Court was required to consider the relevance of intelligence gathering in the context of assessing whether a person was, or was not, a security risk. Brennan J said of that and of the capacity of a court to evaluate that risk:
“… Unless intelligence is relevant to a risk that such conduct may be engaged in, the assembly and dissemination of that intelligence is not within the legitimate functions of the Organization. But for all the statutory endeavour to give some precision to the Organization’s functions, there is an inherent elasticity in the term ‘relevant’. The requisite degree of relevance must surely depend upon the gravity of the conduct from which the assembly and dissemination of intelligence is intended to provide protection. The gravity of the risk against which protection is needed affects the scope of the inquiries which it is prudent to make, and thus the degree of relevance between the intelligence which the Organization might legitimately assemble and the conduct which is apprehended. But, it may be said, how can the gravity of a security risk be evaluated by a court? It may be necessary to evaluate Australia’s relationships with foreign countries, the stability of international affairs, the passion inspired by a particular cause or the likelihood of adherents to the cause taking violent steps in support of it; it may be necessary to evaluate rumour or suspicion as well as proof. It may be reasonable, even necessary, to determine the gravity of a risk by intuition rather than by deduction. It may be truly said that the skills and procedures of a court do not fit it to find the point on the scale of gravity of every risk which may be thought to pose a threat to the Commonwealth, the States and Territories and the people thereof, and it may be accepted that a court will not necessarily have or be able to obtain all the evidence needed to allow it to quantify a risk precisely. However, it does not follow that judicial review is excluded.”[62]
[62] [1982] HCA 78; (1982) 154 CLR 25; 43 ALR 587 at 74; 613-614
Together with Mason and Murphy JJ, Brennan J decided that the relevance of intelligence to security and whether communication of intelligence is for purposes relevant to security might be determined by the Court. In his judgment, Brennan J noted that:
“ The court is not bound by the Organisation’s opinion as to what constitutes security or what is relevant to it. As Lord Devlin said in Chandler v Director of Public Prosecutions … [[1964] AC 763 at 811]:
‘There is no rule of common law that whenever questions of national security are being considered by any court for any purposes, it is what the Crown thinks to be necessary or expedient that counts, and not what is necessary or expedient in fact.’
…”[63]
It follows that the veil of secrecy in which intelligence organisations carry out some of their functions:
“… is not absolutely impenetrable, for the public interest in litigation to enforce the limitation of function prescribed by s. 17 is never entirely excluded from consideration (Sankey v Whitlam … ). But the veil is not penetrated merely by a plaintiff’s deposition that he is not a security risk. That, after all, may be the very matter which is under investigation. Nor is the veil penetrated by showing that initial investigation has failed to reveal that he is a security risk, for one who turns out to be a security risk will often be found to have some depth of cover.”[64]
[63] [1982] HCA 78; (1982) 154 CLR 25; 43 ALR 587 at 75; 614
[64] [1982] HCA 78; (1982) 154 CLR 25; 43 ALR 587 at 76; 615
Thirty years later in Jaffarie v Director General of Security,[65] the Full Court of the Federal Court framed the principles relating to the way in which the evidence of ASIO will be regarded by a court in a different way. Flick and Perram JJ put it this way:
“… Although not conclusive, a Court will give ‘full respect’ to the reasons advanced in support of a claim to privilege: cf. Sankey v Whitlam (1978) 142 CLR at 1 at 146 per Gibbs ACJ. And in cases involving national security, Wilson and Dawson JJ in Alister v R (1983) 154 CLR 404 at 435 said that:
... Questions of national security naturally raise issues of great importance, issues which will seldom be wholly within the competence of a court to evaluate. It goes without saying in these circumstances that very considerable weight must attach to the view of what national security requires as is expressed by the responsible Minister.
See also: R v Lodhi [2006] NSWSC 596; (2006) 163 A Crim R 508 at 517 per Whealy J.
The ‘weight’ to be given to the reasons expressed in support of a claim to privilege will, obviously enough, depend upon the facts and circumstances of each individual case and the persuasiveness of the reasons advanced. Less ‘weight’, it may be expected, will be given to reasons expressed as mere assertions and conclusions than the ‘weight’ to be given to a course of reasoning, soundly based upon such facts as it is possible to disclose, consistent with the maintenance of the privilege. Some claims may be more susceptible to explanation than others. But those making a claim for privilege, including claims for public interest immunity privilege founded upon concerns as to national security, should be forever conscious of the need to explain the basis upon which the claim is made as fully and as openly as possible – always also conscious of the need to not disclose the very information for which the privilege is claimed. In some cases, perhaps, little information can be publicly disclosed and a court may of necessity have to receive affidavit evidence in confidence. But the confidence and reliance that a court can place upon reasons advanced in support of claims for privilege depend to a very great extent upon the care with which those reasons have been advanced.”[66]
[65] [2014] FCAFC 102; (2014) 226 FCR 505; Flick, Perram and White JJ
[66] [2014] FCAFC 102; (2014) 226 FCR 505 at [25]-[26]; 514
There may be occasions on which no evidence is required. Gummow J considered this in Zarro v Australian Securities Commission[67] (Zarro):
“… [C]ases of defence secrets, matters of diplomacy or affairs of government at the highest level are in a special position. It may so readily appear that the balance of public interest is against disclosure that even in the absence before the court of any claim to Crown privilege (perhaps because the Crown is not a party and is unaware of what is afoot) the court of its own motion should enjoin disclosure: see Sankey v Whitlam (at 44, 58-59). …”[68]
[67] [1992] FCA 233; (1992) 36 FCR 40; Lockhart, Ryan and Gummow JJ
[68] [1992] FCA 233; (1992) 36 FCR 40 at 60
Documents must be examined individually but they must also be considered collectively to consider whether, taken together, they convey information which, taken individually, they would not.[69] This was adopted by the Full Court of the Federal Court in Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd[70] in the context of an objection by the Australian Securities and Investments Commission (ASIC) to the production of documents on the ground of public interest immunity. The ground was that they would reveal the identity of informers. In that context, the Court said:
“… If actual disclosure or identification is taken as the standard, we think the bar is set too high. Consistently with the underlying public policy of public interest immunity, the benefit of the doubt should be in favour of non-disclosure. There is always the risk that seemingly innocuous information in a particular document, when combined with information in another document or the reader’s background knowledge, may reveal the identity of an informer, or at least give rise to strong suspicion.”[71]
[69] Zarro (1992) 36 FCR 40 at 60 per Gummow J
[70] [2008] FCAFC 123; (2008) 169 FCR 227; 247 ALR 646 at [40]; 236; 654 per Heerey, Moore and Tracey JJ
[71] [2008] FCAFC 123; (2008) 169 FCR 227; 247 ALR 646 at [41]; 236; 655
In later proceedings between P Dawson Nominees Pty Ltd and ASIC, a differently constituted Full Court of the Federal Court considered the “mosaic effect” brought about by considering documents in the context of other available information. It approved a summary of that effect set out in the judgment of Foster J in Watson v AWB.[72] His Honour had recited the evidence of the then Director-General that:
“‘Mosaic analysis’ is a well-established counter-intelligence tool. Mosaic analysis involves combining pieces of information to enable a ‘picture’ to emerge from which inferences can be drawn by targets, or other persons of interest, about matters not otherwise known to them. Some of the pieces of information may appear to be disparate and/or benign; and specific (but important) items of information may only be known by the target(s) or other persons of interest (making it difficult to precisely assess the risk posed by mosaic analysis in any particular scenario). However, in my opinion there is a very high risk that, disclosure of parts of the subpoenaed documents [referring to the 62 reports], in conjunction with other facts already known to relevant persons, would enable them to draw reliable inferences in relation to sources and methods of intelligence collection of Australia’s intelligence partners.”[73]
[72] [2009] FCA 1047; (2009) 259 ALR 524
[73] [2009] FCA 1047; (2009) 259 ALR 524 at [32]; 529 approved in Australian Securities & Investments Commission v P Dawson Nominees Pty Ltd [2009] FCAFC 183 at [56] and [62] per Sundberg, North and Tracey JJ
In Spencer v Commonwealth of Australia,[74] the Full Court of the Federal Court was careful to say that the “mosaic effect” was simply another way of describing a well-accepted reasoning process. It said:
… And as the Commonwealth noted, the reference to ‘mosaic’ is simply a description of the ordinary process by which inferences might be drawn from multiple sources of information and such a process of reasoning is not excluded from application to an assessment of the harm which might result from the disclosure of documents which will enable such inferences to be drawn about governmental advice and decision-making. Indeed, the reasons in Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227; [2008] FCAFC 123 at [41]- [44] and Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2009] FCAFC 183at [63] expressly contemplate precisely that process of reasoning as relevant to the public interest against disclosure.”[75]
[74] [2012] FCAFC 169; (2012) 206 FCR 309; Keane CJ, Dowsett and Jagot JJ
[75] [2012] FCAFC 169; (2012) 206 FCR 309 at [49]; 324-325
The issue in cases such as the Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd cases and Zarro centred on whether the name of an informer or informers who had informed ASIC of the problems faced by companies in the Multiplex Group in carrying out the design and construction of a new Wembley National Stadium in London and their alleged failure to disclose those problems to ASIC. In Sankey v Whitlam, the issue was whether Cabinet papers should be disclosed as it was in Spencer v Commonwealth. In deciding whether public interest immunity protected such documents from disclosure required the courts to weigh the various public interests. In the process of weighing them, consideration had to be given to the consequences of disclosure and non-disclosure. What would be the harm in disclosure and what would the harm be in non-disclosure at the time the issue was under consideration? There is no basis for defining the nature of that harm for it will depend on the circumstances.
In the context of security matters, harm might be identified in various forms. In R v Lodhi,[76] the Supreme Court of New South Wales considered an application for protection orders under the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) after it had indicated that it would make orders disclosing certain national security information. The presiding Judge, Whealy J, noted that the:
In general terms, the present application requires the Court to conduct a balancing and weighing exercise in relation to a number of strongly competing considerations. These include the protection of national security; the right of the prosecutor to place before the jury evidence in support of its contention that the accused is guilty of the charges brought against him; the principles of open justice and, importantly, the accused’s right to be tried fairly. The Court’s ultimate task is to come to a discretionary decision in relation to the imposition of protective orders and, if so, the extent to which such orders should be made. The considerations I have identified, as might be expected, pull strongly in different directions.”[77]
[76] [2006] NSWSC 596; (1999) 199 FLR 270; Whealy J
[77] [2006] NSWSC 596; (1999) 199 FLR 270 at [6]; 273
Section 33(a)(i) of the FOI Act does not require or permit a balancing of various public interests as is the case when a party in legal proceedings seeks to resist an order for discovery on the basis of public interest immunity. The issue is whether disclosure under that legislation would, or could reasonably be expected to, cause damage to the security of the Commonwealth. While keeping that in mind, I will briefly explore the bases on which security issues are considered when public interest immunity is claimed or an order such as a protection order is sought. The references to the competing public interests are part of the background in which the courts have considered the consequences of disclosure on Australia’s security.
One of the bases on which protection orders were sought in R v Lodhi in relation to ASIO officers was to protect their identity. Justice Whealy looked to the consequences of disclosure and found that:
“ Finally, it cannot be doubted that ASIO personnel have access to a great deal of highly sensitive information, the unauthorised disclosure of which could cause significant damage to the security not only of Australia but of other countries. It is very easy to see that, were the identity of ASIO personnel to be revealed, they could easily become targets for persons and organisations interested in carrying out espionage and politically motivated violence. Such persons are plainly likely to go to great lengths to determine the extent of ASIO’s knowledge about their activities and the nature of intelligence and operational techniques used by ASIO. In addition, s 92 of the ASIO Act makes the unauthorised disclosure of the identity of a present or former ASIO officer employee or agent an offence.”[78]
[78] [2006] NSWSC 596; (1999) 199 FLR 270 at [22]; 277
Considerations relating to the exposure to the security and intelligence organisations and their officers that might come about as a result of disclosure was a matter considered by Spender J in the earlier case of Re Aldred and Department of Foreign Affairs and Trade:[79]
“ Section 4(5) of the FOI Act provides a non-exhaustive definition of ‘security’. Some of the various kinds of damage to security that might follow disclosure of the documents in issue, which will be recognised as justifying a claim for exemption, were set out in Re Slater and Director-General of Australian Archives [1988] AATA 110; (1988) 8 AAR 403 at … [414-15]: Disclosure might result in a reduction in the flow of information to the Commonwealth from overseas governmental agencies, irrespective of whether this reaction is rational; it might enable those engaged in activities that could threaten security (espionage, sabotage, subversion, terrorism etc.) to be better able to prevent an Australian security agency from obtaining information; and an Australian security agency might find it more difficult to recruit or to retain the services of its employees and agents. It is also the case that, even if a matter is the subject of widespread dissemination and speculation, official acknowledgment might cause damage to security.”
[79] [1990] AATA 833
In Plaintiff B60/2012 v Minister for Foreign Affairs,[80] Dowsett J considered proceedings seeking a writ of certiorari quashing a determination that she had failed to satisfy public interest criterion 4003(b) as prescribed under the Migration Regulations 1994 and the consequent refusal to grant her a student visa. When the Court made an order for discovery, the Minister for Foreign Affairs claimed public interest immunity over certain documents. Those documents were described as assessments of Plaintiff B60/2012’s link to the proliferation of weapons of mass destruction, summaries of those assessments and a qualified security assessment undertaken by ASIO.
[80] [2013] FCA 1303; (2013) 219 FCR 109; 306 ALR 478
In assessing the claim, Dowsett J reviewed the role of various groups within the Department of Defence responsible for protecting Australia’s national security by obtaining, correlating and evaluating intelligence in connection with existing and emerging threats to defence and national security interests. They provide advice and independent assessments to government and its Ministers.[81] His Honour summarised the evidence given by Mr Meekin, the Deputy Secretary Intelligence and Security in the Department of Defence. The essence of his evidence was that disclosure of the documents posed a threat to the public interest. His evidence was not directed to any particular information in any particular document but rather to the more general interest in protecting the operation of Australia’s security and intelligence organisations. Mr Meekin’s:
“… concern is that the disclosure of such information, and the disclosed documents themselves, might disclose much about each agency’s knowledge or lack of knowledge, capacity, interests, methods and personnel.”[82]
[81] [2013] FCA 1303; (2013) 219 FCR; 306 ALR 478 109 at [24]; 116; 485
[82] [2013] FCA 1303; (2013) 219 FCR 109; 306 ALR 478 at [30]; 117; 486
Dowsett J did not unquestioningly accept this evidence. He:
“… kept in mind the risk that, like any specialized group, the intelligence community may become, or have become preoccupied with itself, its own values and perceived importance, so that his affidavit might not present a reliable basis for the balancing exercise which I must perform. However nothing in Mr Meekin’s affidavit appears to be extreme, irrational or illogical. In particular I accept that expert analysts are able to make much from a collection of relatively small scraps of apparently unconnected information. I take into account too, the very high security classification attributed to documents of this kind. It seems unlikely that the operational intelligence or security service would want to burden itself with an unduly large number of unnecessarily highly classified documents. That WMD assessments are so treated weighs heavily with me in reaching my conclusions concerning Mr Meekin’s evidence.”[83]
[83] [2013] FCA 1303; (2013) 219 FCR 109; 306 ALR 478 at [31]; 117-118; 486
Dowsett J reached a similar conclusion in relation to the evidence given by the then Director-General of Security, Mr Irvine, after reviewing ASIO’s functions. He found that it is in the public interest that ASIO discharge its core function to protect Australia’s security and to provide advice to government in relation to matters relevant to that protection. Dowsett J continued:
“… I accept that it is fundamental to the effective operation of ASIO that specific details of its areas or subjects of interest, its ability to obtain intelligence, its sources, techniques and work methods, its successes and information derived from its successes be kept secret. This goal may require that it neither confirm nor deny activities which may, or may not have occurred. The need to protect the secrecy of ASIO’s operations and its information and intelligence holdings is recognized by statute. I accept Mr Irvine’s view that the disclosure of certain information contained in the various documents would be likely to prejudice national security. …”[84]
[84] [2013] FCA 1303; (2013) 219 FCR 109; 306 ALR 478 at [37]; 119; 487-488
He went on to conclude that, subject to any consideration of the public interest in Plaintiff B60/2012’s having an opportunity to enter Australia and to have judicial review of the decisions precluding her entry, WMD assessments are documents of a class which ought, for that reason alone, be treated as immune from disclosure. In conclusion, Dowsett J decided:
“…In the end the public interest in allowing her to challenge the various adverse decisions is significant, but it is far outweighed by the public interest in the protection of the effective operation of our security and intelligence agencies. The whole notion of society involves the compromise to an acceptable degree, of individual interests in order to serve the common good. The public interest in the upholding of such individual interests may also have to be compromised in seeking to achieve the greater good.”[85]
[85] [2013] FCA 1303; (2013) 219 FCR 109; 306 ALR 478 at [46]; 121; 489-490
In reaching that conclusion, Dowsett J had accepted that:
“… the public interest in in the decision-making process and in effective judicial review would be better served if the applicant were able to challenge the decisions in the usual way (with access to all relevant documents) than if she were unable to do so. The public interest will rarely be served by arbitrary and unexplained decisions. The Australian government’s conduct in offering her the scholarship is a further ground for doubting the appropriateness of the decisions. No doubt it is in the public interest that good students be brought to this country for research purposes. There can be no public interest in excluding a person who has no association with WMD, nor in damaging a young woman’s future career or her capacity to travel.”[86]
[86] [2013] FCA 1303; (2013) 219 FCR 109; 306 ALR 478 at [44]; 120; 489
Of more direct relevance to a claim for exemption under s 33(a)(i) is the statement of public interest in the protection of Australia’s security:
“… Such protection necessarily depends upon intelligence gathering, evaluation and distribution. It also relies upon counter-intelligence measures. Whilst these functions may once have been relatively unsophisticated, that is no longer the case. There is nothing surprising about the proposition that we seek to maintain our own secrets and discover the secrets of others. Our secrets include the extent of our own knowledge of the secrets of others, and the methods we use to collect information and evaluate and distribute it.”[87]
[87] [2013] FCA 1303; (2013) 219 FCR 109; 306 ALR 478 at [45]; 120-121; 489
The approach taken by Dowsett J in Plaintiff B60/2012 v Minister for Foreign Affairs is consistent with the approach taken by Gibbs CJ in Alister v The Queen.[88] Gibbs CJ favoured a careful analytical approach both to the claims made by those seeking to protect documents from discovery on the ground of public interest immunity and to the harm that might follow disclosure. His Honour said:
“ The fact that disclosure of the fact whether the documents sought by the subpoena in the present case exist, and their production if they do exist, would be harmful to the public interest is sought to be established by the affidavit of the Attorney-General. But Sankey v. Whitlam decides that an objection, even if properly taken, is never conclusive, although there will of course be instances (such as documents containing defence secrets in time of war) when, as Stephen J. said in Sankey v. Whitlam …, ‘the Court's acceptance of the claim (to Crown privilege) may often be no more than a matter of form’. When the grounds of objection in the present case are examined it will be seen that the first ground (that stated in par. (a)) is merely preliminary and not in itself sufficient. To say that it is in the public interest to maintain an intelligence organization does not mean that it would necessarily be contrary to the public interest to disclose whether that organization had any records of a particular kind. The second ground (stated in par. (b)) is prima facie convincing, but is expressed, with candour, only in a qualified way. ASIO now functions under the Australian SecurityIntelligence Organization Act 1979 (Cth), as amended, the provisions of which have been discussed by this Court in Church of Scientology v. Woodward …. Its functions include the obtaining of intelligence relevant to security: s. 17(1)(a). The disclosure of information that a particular person had gathered intelligence for ASIO would in many cases not only injure the national securitybut also endanger the person concerned, but that would not always be so. The ground stated in par. (b) calls for an examination of the circumstances of the particular case in order to decide whether any danger to the public interest is likely if the information is disclosed in those circumstances. The third ground (stated in par. (c)) is expressed absolutely. If it is intended to do no more than state the effect of pars. (a) and (b), it cannot be regarded as accurate, because the categorical assertion made in par. (c) does not follow from the qualified claim made in par. (b). If par. (c) is intended to stand alone as an independent ground, it is unconvincing, because it is difficult to accept that effective securitycan be maintained only if ASIO can refuse in all cases to disclose whether any documents sought exist. For example, if it was publicly known that a particular person, acting for ASIO, had gathered certain intelligence, it would not seem, generally speaking, to jeopardize securityto disclose whether any documents prepared by that informant were in existence. Notwithstanding the respect that must be paid to a claim for immunity made by a Minister in relation to a matter of national security, I am not at all convinced that the public interest requires that ASIO should be able in all cases to refuse to disclose whether any document exists, and to refuse to produce it if it does exist.”[89]
[88] [1984] HCA 85; (1984) 154 CLR 404; 50 ALR 41
[89] [1984] HCA 85; (1984) 154 CLR 404; 50 ALR 41 at 412-413 (citations omitted)
These authorities give a flavour of the way in which the courts have understood the word “security” and the way in which they have assessed the damage that might follow from disclosure. As I have said, some of these cases have considered those issues in the context of assessing claims for public interest immunity in legal proceedings. Those claims necessarily require a weighing of competing public interests. The wording of s 33(a)(i) is clear that no such balancing exercise is required. As Deputy President Hall said in Re O’Donovan and Attorney-General’s Department:[90]
“ The words ‘for the reason that’ are synonymous in my view, with the word ‘because’. Far from justifying any balancing of other Interests, those words focus attention specifically on the aspects of the public interest set out in pars (a) and (b) of s. 33 to the exclusion of other relevant interests. Where any of the grounds referred to in those paragraphs are made out, I do not consider it to be open to the Tribunal to find otherwise than that disclosure of the document would be contrary to the public interest within the meaning of s. 33. The absence of any provision comparable to s. 33A(5) enabling consideration to be given to question whether disclosure of the document would, on balance, be in the public interest is of critical importance."[91]
[90] (1986) 8 ALD 528; 4 AAR 151
[91] (1986) 8 ALD 528; 4 AAR 151 at 533; 156 and approved by Spender J in Re Aldred and Department of Foreign Affairs and Trade: [1990] AATA 833.
While there is no scope to balance competing public interests, whether disclosure would cause damage to, or whether it could reasonably be expected to do so are matters of judgement. Whether disclosure of a document could “reasonably” be expected to cause damage to the security of the Commonwealth may well involve difficult questions of fact and degree. Putting aside any countervailing public interests they have taken into account, the authorities to which I have referred give some indication of types of matters that may be relevant.
THE EVIDENCE
Security vetting processes
Ms Elizabeth Milne is the Assistant Secretary Vetting in the Australian Government Security Vetting Agency (AGSVA) located within the Department. In that role, which she has held since 28 July 2014, Ms Milne is responsible for the core vetting and determination of security clearance applications, the governance arrangements for the delivery of high quality security vetting products and services and the financial management of AGSVA’s service delivery. She also holds a delegation to review and decide security clearance applications.
Ms Milne described her previous experience in her Affidavit:
“4. Prior to my current role, I spent approximately 4 years as the Assistant Secretary, Portfolio Reform and subsequently the Acting First Assistant Secretary, ICT Delivery Division in the Chief Information Officer Group (CIOG) in Defence. In these roles with the CIOG, I was responsible for managing cultural reform within Defence and for the delivery of information and communication technologies (ICT). I consider these roles provided me with valuable skills which are useful for AGSVA, including a good understanding of AGSVA’s business and the ability to drive cultural reform.
5.Prior to my roles in CIOG, I had approximately 24 years of experience in intelligence, including in management roles, with the Australian Signals Directorate (ASD) and the Australian Geospatial-Intelligence Organisation (AGO). As a result I have experience in the security clearance process from both sides, as the subject of a security clearance application and as a vetting decision-maker. My role in the intelligence community over a number of years also means that I have a first-hand appreciation for the importance in ensuring sensitive and classified information of the Australian Government does not end up in the wrong hands.”
Ms Milne described AGSVA’s functions in relation to security clearances: assessing applications for security clearances; granting, upgrading, denying or revoking security clearances; managing reports of changes in circumstances; and reviewing existing clearances to assess a clearance subject’s ongoing need and suitability to hold a security clearance. The security vetting process is directed to ensuring that those who have access to information and resources on behalf of the Australian Government can be relied on to respect and protect that information it holds. That information may comprise sensitive personal information held about members of the public and public servants who are security cleared as well as security classified information and intelligence products provided by Australia’s allies. In Ms Milne’s view:
“… the security vetting of Australian Government employees is a significant component in ensuring information is kept securely. While the Australian Government may have a range of other security systems and ICT measures in place, including secure premises, even the best system is vulnerable to human manipulation. For this reason the security vetting process is sometimes described as having been designed to ‘mitigate the threat from the trusted insider’.”[92]
[92] Ms Milne’s Affidavit at [11]
Security of information and securing those who might reveal it are related but separate issues. In relation to the security of information, Ms Milne referred to that part of the Australian Government’s Information Security Management Guidelines (ISM Guidelines) referring to the Australian Government security classification system. An examination of the ISM Guidelines shows that they have been prepared by the Attorney-General’s Department[93] and give guidance in first identifying official information and then in identifying what official information does not require additional protection and that which does. If official information requires a security classification, it is classified as Protected, Confidential, Secret or Top Secret information. Information may require a Dissemination Limitation Marker (DLM). A DLM may be: Sensitive: Cabinet; Sensitive: Personal; Sensitive: Legal; and Sensitive. Official information may also require a caveat such as code words, source code words and markings. If a caveat is used, as it may do in the case of some information having an impact on national security, it will indicate that special requirements apply in addition to those indicated by the protective marking. A caveat cannot be used without a protective marking. The ISM Guidelines also address issues such as those who apply and alter protective markings, the management of over-classifications and the duration of classifications. In her affidavit, Ms Milne said that the level of classification reflects the damage done to the national interest or to organisations and individuals in the event of unauthorised disclosure or compromise of the confidentiality of the information.
[93] type="1">
Unlike the ISM Guidelines, the security clearance process relates to those who may come to hold certain official information and not to the information itself. Ms Milne said that AGSVA has three levels of vetting. In order from lowest to highest they are: Baseline, Negative Vetting Level 1 (NV1), Negative Vetting Level 2 (NV2) and Positive Vetting (PV). Whether a person is vetted or not and, if so, the level of vetting are all relevant in determining the official information he or she is permitted to view. A person may not, for example, view a document classified as Top Secret without a NV2 or a PV security clearance. A person with a PV security clearance (PV clearance) may view information at any and all security classifications as required as part of his or her duties.
Ms Milne outlined the security clearance process. She explained the six steps that are typically taken to carry out the process:
“15.1 A sponsoring agency will submit a request to AGSVA when it identifies a new or changing security clearance-related requirement. A ‘security clearance pack’ will be completed by the individual requiring the necessary clearance (‘the clearance subject’) and submitted to AGSVA.
15.2 A structured examination of the clearance subject (based on the information they provide) will be conducted. This includes a range of checks and inquiries to determine the identity, eligibility and suitability for an individual to hold or maintain a security clearance. Depending on the clearance level, information from external agencies, referee reports and personal interviews may also be required.
15.3A Psychological Assessment of the clearance subject is mandatory for PV clearances and evaluations, and discretionary for clearances up to and including NV2. This includes psychometric tests and a psychological interview with the clearance subject, conducted by a qualified psychologist.
15.4Assessing officers within AGSVA undertake an analysis of a clearance subject’s background, character and suitability to access classified resources and information, based on a ‘whole person’ assessment. This refers to the fact that a complete assessment is undertaken by an assessing officer to evaluate all available and reliable information, both favourable and unfavourable about the clearance subject to assess if, on balance, they are suitable to hold the relevant clearance.
15.5After a recommendation is made, the security clearance application is allocated to a delegate to review and to make a decision. A delegate may also refer a matter back to an assessing officer for re-work or onto Complex Vetting when consideration is being given to denying a clearance subject a clearance at the level requested. The outcome of this process is to ensure that the principles of procedural fairness are followed and an appropriate vetting decision is made. The PSPF stipulates that all vetting decisions are to be based on an assessment of the whole person and, at all stages, are to be made in accordance with the principles of natural justice and procedural fairness.
15.6If a clearance is granted, agencies and individuals are responsible for advising of any significant changes in personal circumstances that may impact on an individual’s continued suitability to hold a security clearance.”
Mr Prinn challenged the process set out in [15.5] saying that:
“… this process is clearly not in accordance with the principles and guidelines for personal security processes published by the Attorney-General on his website. These guidelines state that procedural fairness is to be provided for at all stages of the security clearance process. Other information including process maps show procedural fairness being undertaken before the recommendation is made by the AO. (See attached AG’s information). I also question why this would be shown in the statement as examination of the file will clearly show how I was given no procedural fairness at any time as pointed out on many occasions in my responses through this and other correspondence with Defence and the Information Commissioner.”[94]
[94] Mr Prinn’s Statement of Facts Issues and Contentions at [27]
Ms Milne went on to refer to a document prepared by the Attorney-General’s Department and known as the “Personnel security guidelines Vetting Practices”[95] (PSVP Guidelines). They are intended for use by agencies undertaking security clearance vetting and by all personnel involved in the conduct of vetting.[96] The Introduction to the PSVP Guidelines makes the following statements:
“1. The Australian Government personnel security guidelines – vetting practices have been developed to support the protection of the Australian Government’s people, information and assets, through sound personnel security practices. The guidelines provide advice to agencies to assist in their application of the controls identified in the Australian Government personnel security protocol.
2.…
3.Personnel security is one element of good protective security management. The Australian Government’s personnel security measures determine the suitability of personnel to access Australian Government resources. A suitable person possesses integrity and reliability and is not vulnerable to improper influence.
4.Effective personnel security provides assurance and confidence across government when collaborating or sharing Australian Government resources. This approach mitigates the threat from the trusted insider.”
[95] Annexure EM-2 to Ms Milne’s Affidavit and available at PSVP Guidelines at [6]
Part 5 of the PSVP Guidelines is headed “Personnel security adjudicative guidelines”. It is said that they:
“… have been developed to assist assessing officers and delegates assess the clearance subject against common factor areas that may impact on the clearance subject’s suitability to hold a security clearance. They apply to considerations for initial or continued suitability for access to security classified material.”[97]
[97] PSVP Guidelines at [234]
The PSVP advises assessing officers to assess each clearance subject on his or her own merits. If there is any doubt, however, concerning a clearance subject’s suitability, that doubt must be resolved in favour of the national interest.[98] The assessment is undertaken in the context of: external loyalties, influences and associations; personal relationships and conduct; financial considerations; alcohol and drug usage; criminal history and conduct; security attitudes and violations; and mental health disorders. Those factors are developed in Part 5 which states that they may have a bearing on one more of a clearance subject’s character traits.[99] Those character traits are honesty, trustworthiness, maturity, tolerance, resilience and loyalty.[100]
[98] PSVP Guidelines at [236]
[99] PSVP Guidelines at [241]
[100] PSVP Guidelines at [237]
Ms Milne said in her affidavit that disclosure of information going beyond the PSVP and other material that is already in the public domain could impair the integrity of AGSVA’s processes. She expressed the view that:
“18. It is not possible for AGSVA to entirely eliminate the risk that sensitive information or resources of the Australian Government might end up in the wrong hands. However, if the material over which exemption is claimed in these proceedings were to be released, then in my view the security vetting process would become less effective, thereby significantly increasing the risk.
19.I consider the effectiveness of the current security vetting system is in large part due to the fact that clearance subjects do not know precisely how far AGSVA can reach in undertaking checks. The system depends on the integrity and honesty of the clearance subjects and their referees. If information regarding the checks AGSVA undertakes or the information AGSVA considers significant or of concern were to become publicly known, there is a risk that individuals could paint a more favourable picture of a clearance subject or actively circumvent AGSVA’s processes.
20.Alternatively, if the material over which exemption is claimed were released, I consider it may be necessary for the Australian Government to consider changing one or more of the current security vetting processes. This would be very disruptive to the system and potentially also costly to the Australian taxpayer.”
Paragraph [236] states that clearance subjects must be assessed on their own merits but any doubt about a clearance subject’s suitability must be resolved in favour of the national interest. The PSVP Guidelines go on to explore various factors that might be relevant to consider in making a clearance assessment. They include factors that might raise concerns or mitigate concerns.[101]
[101] See generally Part 5 of the PSVP Guidelines
Later in her Affidavit, Ms Milne addressed the effect that she believed that disclosure of AGSVA’s processes would have on Australia’s relations with other countries. She believes that:
“… the disclosure of information which has the potential to undermine Australia’s ability to effectively undertake security vetting of its personnel would have serious ramifications for the Australian Government’s ongoing relationship with our international partners, particularly our information sharing arrangements with our allies. The Australian Government relies heavily on the trust and confidences of foreign governments in receiving information regarding a wide range of matters which are critical to national security. If the international community considered the Australian Government was unable to provide reliable assurances or adequately protect sensitive information that was disclosed to it, our international partners may lose confidence in Australia and impose additional requirements or restrictions on us to protect their information or they may no longer share information with Australia at all. This not a hypothetical concern. In my time in the intelligence community I have seen instances of such concerns being raised.”[102]
[102] Ms Milne’s Affidavit at [33]
The documents in issue before the Tribunal
Ms Milne said that she had inspected the documents in issue in this case. While she does not know Mr Prinn, she understands that he has previously worked within AGSVA. As a condition of his employment, she said, he would not have been permitted to disclose information he had obtained in the course of his duties. She referred to the offence created under s 70 of the Crimes Act 1914 to the effect that, unless authorised to do so, it is an offence for an officer, or former officer, of the Commonwealth to publish or communicate any information obtained in the course of their duties. It was her understanding of AGSVA’s previous practices that a clearance subject would not be shown the documents as part of the normal security vetting process. That, Ms Milne said, is certainly the current position.
It is Ms Milne’s understanding that the documents in issue are dated from May 2009 to June 2011. They are held on Mr Prinn’s vetting file and are parts of the processes involving his applications for security clearances during that period. He was involved, Ms Milne said, in both a negative vetting (NV) and a positive vetting (PV) security clearance during that period. Ms Milne added that the documents also relate, in part, to a review for cause of Mr Prinn’s security clearance. That review was instigated in January 2010 when there was a concern about whether Mr Prinn should continue to hold a security clearance at his existing level. That review was discontinued when he was transferred into another role within the Department which only required a NV clearance. As a result, Ms Milne said, Mr Prinn’s security clearance was downgraded to NV. It was not, she continued, downgraded as a consequence of the review but as a consequence of the level required to perform the duties of the new position. It is standard practice that a person hold a security clearance only at the level required for the performance of their normal duties.
Mr Prinn challenged Ms Milne’s evidence in this regard saying that he had not been involved in any NV process at all in this period. As late as April 2012, he was still being considered for a TSPV clearance. It was only after he had escalated his enquiries to the Department’s Secretary in 2012 that the PV process was discontinued and a NV process was commenced. During the period from May 2009 to June 2011, the documents related only to a TSPV clearance process.
In her affidavit, Ms Milne acknowledged that some of the information contained in the documents may appear innocuous in isolation. When viewed together, she continued, it gives a detailed picture about the processes and methods used in AGSVA in assessing an individual’s suitability for a PV clearance. The currency of that information has not been diminished by the age of the documents in which it appears. If they were to be released under the FOI Act, Ms Milne considered that the security vetting process would be undermined and AGSVA would need to give careful consideration to making significant changes to its processes to ensure it continues to be able effectively to undertake security vetting. The changes would be driven by a need to minimise the damage caused by disclosure rather than from a systems improvement perspective.
In her affidavit, Ms Milne went on to explain why she believed that it was crucial to the integrity and efficacy of AGSVA’s processes for determining when a person is suitable for a PV clearance. She said:
“… Any damage to the capacity of AGSVA to correctly determine access privileges for highly sensitive government information is likely to have profound consequences for national security because it provides an opportunity for parties with hostile interests to infiltrate sensitive government information and use it in ways which may be contrary to Australia’s national interest. The Australian Government has prepared a publication dealing with this issue, entitled ‘Managing the Insider Threat to your Business: A personnel security handbook.’ … In particular, the ‘insider threat’ can apply to current or former employees or contractors who have legitimate access to information techniques, technology, assets or premises. The security clearance process is designed to minimise this threat within the Australian Government, by identifying people who might misuse their access to sensitive information for some personal gain, or to cause harm, loss or damage. …”[103]
[103] Ms Milne’s Affidavit at [32]
Mr Prinn challenged Ms Milne’s statement in this paragraph in so far as it relates to his personal situation. He repeated that he had been denied anything close to a fair and unbiased process and stated that he had been denied procedural fairness. Mr Prinn alleges that, as the vetting process has applied to him, he has been the subject of conflicts of interest and unethical practices, including bullying and intimidation, which have been ignored by a range of senior AGSVA staff. His attempts to have them addressed have, he stated, been thwarted by the Department.
A. Documents 51 and 106: Vetting Analysis Reports
Ms Milne described Vetting Analysis Reports (VARs) as being based on a template. They are used by AGSVA officers with responsibility for the evaluation and assessment of individuals seeking a Commonwealth security clearance. Officers use the VARs to ensure that they follow the correct procedures and consider all relevant factors. They record their commentary and conclusions regarding a range of factors and indicators against which a clearance subject has been assessed. Disclosure, therefore, would reveal not only testing methods used by AGSVA but also the factors that it considers favourably and those that it does not. Furthermore, the relative weight attributed to various factors would be revealed as would the tolerances or thresholds permitted on a range of considerations to be considered in making an assessment.
If the VARs were released, it is Ms Milne’s opinion that individuals applying for a security clearance would potentially be able to modify their behaviours and responses with a view to modifying their behaviour. They would be able to minimise any areas that might be revealed as part of the AGSVA processing and be perceived as security concerns. There may be speculation about the process and what AGSVA is looking at when conducting security clearance vetting but speculation is very different from knowledge. The system of vetting is neither foolproof nor perfect but disclosure of the VARs makes the process substantially less effective than it currently is. Ms Milne sees the real threat to the effectiveness of those processes as a national security threat.
Although the particular VARs in issue in this case relate only to Mr Prinn, Ms Milne said that they would reveal the factors and reasoning process that is applied generally in a security vetting process. “Disclosure of the VARs would invite readers into the mind of vetting officers in a way that is simply not available from public sources”, Ms Milne said.[104] Vetting officers are not permitted to reveal this sort of information outside operational requirements, she added.
[104] Ms Milne’s Affidavit at [41]
Of the particular VARs in issue, Ms Milne said that Document 106 relates to Mr Prinn’s original PV clearance application. Mr Prinn disagreed with her characterisation as relating to his PV clearance saying that it related to a full review of his TSPV clearance that he had held for many years. He saw her statement as an example of a lack of attention to detail. Ms Milne said that Document 51 was created as a result of a “review for cause” process begun in January 2011 to review Mr Prinn’s security clearance. All security clearances must be revalidated at regular intervals but a review for cause process can be commenced at any time by AGSVA or by a sponsoring agency. It leads to an assessment of a clearance subject’s suitability to continue to hold a security clearance.
B.Documents 53, 107, 131 and 132: Psychological Assessment Reports and Psychological Assessment Interview Notes and Analysis
Ms Milne addressed her concerns regarding the Psychological Assessment Reports (PAR) and the Psychological Assessment Interview Notes and Analysis (PAINA). She noted that psychological assessment is a mandatory part of the assessment process because PV clearances are re-evaluations. It comprises both psychometric testing and psychological interviews with a clearance subject. These are used by a qualified psychologist to create a Psychological Assessment Report on a clearance subject. The PAR is reviewed by the AGSVA assessing officer and is a critical document in determining a clearance subject’s suitability to hold or maintain a security clearance. Ms Milne said that a PAR will assist AGSVA in identifying areas of possible risk, including personality factors, personal relationships and conduct or security attitudes which might increase the risk in granting or continuing a security clearance.
Ms Milne said that the level of the security clearance applied for has a direct impact on the nature and complexity of the information which must be collected about a clearance subject by AGSVA. A PV assessment, for example, requires a range of psychological testing that is not typically required at a lower level. The rationale for that heightened requirement is associated with the greater risk posed to the national security when a person is exposed to highly sensitive material. The Australian Government, Ms Milne said, needs to be satisfied that individuals exposed to that material are equipped psychologically to manage the knowledge in a manner that is consistent with the significant importance of maintaining its confidentiality.
Document 107 dated 18 May 2009 and relates to Mr Prinn’s original security clearance application. Documents 53 and 132 appear to her to be copies of the same PAR completed on 29 June 2011. They were created as a result of a review for cause process which was initiated in January 2011. Mr Prinn challenged Ms Milne’s evidence saying that:
“32. … Serial 107 did not apply to my original PV security clearance it was in fact an assessment completed by a consultant psychologist that I attended in Sydney for the full review of my original PV clearance in 2009. This pattern of facts being stated by AGSVA senior staff based on inaccurate assumptions is worrying given the consequences of these processes and in my case actual prejudicial impacts on my health and life.”
Ms Milne went on to describe the type of information in the PARs saying that they reveal the types of psychological tests administered as well as very detailed notes regarding Mr Prinn’s psychological state. Those notes were prepared by a practising psychologist following a face to face meeting with Mr Prinn. In so far as they contain information given by Mr Prinn to the psychologist, that information has been given to him. To the extent that they contain commentary on, or an analysis of, Mr Prinn’s responses, demeanour and personal or psychological characteristics, Ms Milne considered that their disclosure would cause harm to AGSVA’s ability to undertake security vetting. She elaborated on the reasons for her view:
“51. If the psychological analysis or names of the psychological tests undertaken for a PV clearance were released under FOI, individuals might be able to access the tests and ‘practice’ their responses to the tests undertaken. This would skew the results of the psychological testing being conducted by AGSVA, making it invalid. I consider this risk of harm applies regardless of whether the psychological results and analysis in Mr Prinn’s case was positive or negative.
52.In a similar way, seeing what the psychologist made of their interactions with the clearance subject allows a future clearance subject to rehearse the interview process. The effectiveness of the psychological interview depends in part upon the psychologist’s ability to make an assessment of a person’s spontaneous reactions to the situation and the various questions that the psychologist might ask. While a person may not be able to change their psychology upon reading these documents, they could certainly identify techniques used by psychologists, what psychologists are looking for, what psychologists consider significant and what psychologists identify as potential risk factors, and alter their presentation at the psychologist interview in a way that is calculated to manipulate the outcome of the interview process in their favour. The information contained in these documents would be of significant assistance to a person seeking to alter the result of psychological testing to allow them to appear more suitable than they may have appeared if the process had not been interfered with.
53.In my view, the psychological testing is a key component of the security vetting process and any prejudice to its effectiveness would be likely to cause extreme harm to the effectiveness of the overall vetting process for high level security clearances. If AGSVA is unable to conduct its psychological testing effectively, there is a real risk that it will be less able to identify unacceptable psychological risks in clearance subjects, with the result that individuals who are not, for one or more reasons, appropriate to hold a security clearance gaining access to highly sensitive Australian Government information. AGSVA places a very high reliance on the expertise of psychologists in conducting and reporting on psychological issues, including the likelihood of being able to mitigate potential risk factors.[105]
[105] Ms Milne’s Affidavit
Of these three documents, Ms Milne said:
“The PARs at documents 53, 107 and 132 reveal the types of psychological tests administered, but also contain very detailed notes regarding the psychological state of the clearance subject, prepared by a practicing psychologist following a face to face meeting. To the extent documents 53, 107 and 132 reveal information provided by Mr Prinn to the assessing psychologist, they have been released. However, to the extent these documents contain commentary or analysis of Mr Prinn’s responses, demeanour and personal or psychological characteristics (or discuss the way in which these things are potentially relevant to his suitability for a security clearance), I consider that disclosure of these documents would cause harm to AGSVA’s ability to undertake security vetting.”[106]
[106] Ms Milne’s Affidavit at [50]
It is Mr Prinn’s understanding that psychological records have routinely been released to them on request. He gave examples. In so far as they relate to vetting for a TSPV, Mr Prinn said that he was aware that “… records for the TSPV psych processes have been in the past released to psychologists engaged by clearance subjects to undertake reviews and for associated professional discussions with DSA’ own psychs again on request from clearance subjects.”[107] It is Mr Prinn’s view that psychological tests should be routinely released to applicants on request. They are medical-related reports and their release would accord with community standards and with considerations of procedural fairness. Regarding the Department’s submission that identification of the psychological tests used would undermine the effectiveness of the vetting process, Mr Prinn said:
“… It is also not much of a stretch to think that those with intent to undermine and circumvent the system would quite easily run up a short list of what tests may be used as they are part of a readily available block of psych tests worldwide. The tests used are not proprietary Defence or Australian Intelligence Community (AIC) tests they are simply tests utilised around the world for a variety of reasons. I have in my possession the psych test related document that was actually released to me by the AGSVA psychologist at one of my assessments so the identity of that particular test is already known to me. They are not a classified document or similar and again any opinions that the assessing psychologist comes up with from the tests themselves, or together with an interview with the subject, should be subject to examination and possible alternate or mitigating opinion by another professional as is the process in all other similar employment processes or areas and of course in court proceedings. I also find it significant that psychological testing is not relied upon by our major ally the USA in their security vetting processes. One wonders why they have doubts over the value of psychological testing or assessment to their clearance processes. In fact psych testing is a relatively recent addition to the TSPV clearance processes and was introduced from recommendations made in a review report that followed two prominent treason cases involving officers of the DIA in approx 2000 (Simon Lappas and Jean Pierre Wispelaire).”[108]
[107] Mr Prinn’s statement and submission at [33]
[108] Mr Prinn’s statement and submission at [34]
Mr Prinn went on to identify the test and to give a critique of it. His conclusion was that any clearance subject who underwent the test should be entitled to seek an alternate view or analysis by another medical professional of his or her own choice. The test, he said, is capable of leading to different scoring by the same subject on different days and is subject to the views and biases of the rating psychologist. A process that allows for his concerns regarding procedural fairness can only strengthen the process, Mr Prinn said, while meeting any legislative and employment related policies and guidelines. An open and ethical vetting system would lead to a greater level of confidence in the process. As the process stands, Mr Prinn said, the potential for matters taken out of context or opinions of referees not tested for accuracy, reliability or corroboration is too high. The underlying principles of Australia’s legal systems provide for testimony of this sort to be challenged by the person whose interests would, or could, be prejudiced by any decision relying on that testimony, Mr Prinn said.
Document 131 is a PAINA prepared by the assessing psychologist on a form used by AGSVA to record the psychologist’s analysis of findings of the psychometric testing undertaken together with a discussion regarding the interview conducted with the clearance subject. Ms Milne went on to describe the document at [54]:
“Document 131 also contains the psychologist’s commentary on particular responses given by Mr Prinn during his psychological interview and whether they are significant or give rise to some concerns in the context of his suitability for a PV clearance. While some of the content of this document are the notes made by the Assessing Psychologist of things Mr Prinn might have said, the information which the assessing psychologist considered significant enough to record might, in and of itself, reveal something of the issues of potential interest and concern in the vetting process. That is, if people knew what matters are important to AGSVA they might respond differently in both the testing and interview process. While some of the information recorded in document 131 might be about, or given by, Mr Prinn, the psychologist’s analysis and deliberation is so interwoven with this information that I do not consider it is possible to separate the two without causing the harm I have described immediately above.”
C. Document 55: Referee Reports
128. Document 55 contains a bundle of six records of interview conducted by an assessing officer with referees nominated by Mr Prinn. He nominated them as part of AGSVA’s usual procedures. An assessing officer contacts each and puts a series of questions to him or her before evaluating their responses, Ms Milne said. The records of interview are recorded on an AGSVA document entitled “Referee Interview Guide”. All of the questions to be asked of a referee are included in that document. A Referee Interview Guide is typically used in all PV clearance processes regardless of whether that process is undertaken as part of a regular review or as a review for cause process.
Over the years, there have been some minor changes to the Referee Interview Guide, Ms Milne said, but the substance of the documents and its questions substantially unchanged. She went on to observe that:
“… Disclosure of these questions would pre-warn all future PV security clearance subjects and their referees of the specific questions they would be asked in a referee interview and enable them to prepare their responses in advance. This is the case regardless of whether a referee interview is being conducted in the context of an original security clearance application, or where consideration is being given to the continuation of a security clearance (in a review for cause process). The referee checking system used by AGSVA relies entirely on receiving the honest and instinctive responses of a security clearance subject’s referees. If the detailed questions to be asked of referees (in the context of a PV security clearance) were released by AGSVA, I would expect that the risk of ‘coaching’ would considerably increase and AGSVA would be less likely to receive the referees’ natural and spontaneous responses to the questions asked of them.”[109]
[109] Ms Milne’s Affidavit at [61]
A little later in her Affidavit, Ms Milne expanded upon her concerns in this area:
“… In a similar fashion to psychological assessment, the success of the referee report process depends in part upon the spontaneity of the referee’s responses to questions. While a referee (and a clearance subject) may be able to predict beforehand the broad themes of questions, the precise framing of those questions, the ordering of those questions and other specifics of the process will be unknown to the referee until they begin the discussion. Removing the spontaneous element and allowing referees to practice their responses introduces another area of risk, and another opportunity for individuals to manipulate the process to achieve a favourable outcome for the clearance subject. This may not be with any malicious intent on the part of the referee, who may see themselves as simply trying to help. However the best evidence for a vetting officer will be the honest and spontaneous evidence that a referee provides without having prepared a script for the interview.”[110]
[110] Ms Milne’s Affidavit at [65]
She went on to contrast the process with that undertaken in recruitment processes. In the latter process, a referee may know that an applicant may be given a copy of any referee comments. In a security vetting process, referees are told that what they say about a clearance subject will not be disclosed to that subject under any circumstances. At a PV clearance referee interview, the referee is informed that information is collected for security purposes and is protected under law. Any AGSVA referee report sent to a referee for completion contains a statement to that effect. He or she is also told that a referee report may be used as a basis for further enquiries and that may lead to further contact with him or her.
Ms Milne said that AGSVA is required to afford a clearance subject procedural fairness and an opportunity to respond to any potentially adverse elements of the security vetting process. If a referee raises an issue of concern, an AGSVA assessing officer will always look to corroborate the information by looking for other available information. If the issue remains one of concern, then the assessing officer will approach the clearance subject to give him or her an opportunity to respond. Any adverse issues of concern will be raised in a way that does not identify that they were raised in the context of a referee report.
Mr Prinn challenged the accuracy of Ms Milne’s statement in the previous paragraph. He said that he has been given nothing and has been denied a balanced assessment of all relevant information. In his view, there has been no attempt to test the authenticity of information or to corroborate it through additional channels or sources. His conclusion is that:
“… With such a process the only reasonable decision is to release the records to me so that the full picture can be examined and determined with any further action to be explored and decided after that.”[111]
[111] Mr Prinn’s statement and submission at [41]
Ms Milne went on to address her concern that referees would feel constrained about what they say were it to be known that their comments would be disclosed to clearance subjects. The vetting process, she said, looks at the “whole person” and his or her suitability to have access to the most sensitive information including that which has significant national security implications. AGSVA relies on referees being honest and forthright in making their comments. Consequently, referees need to feel safe when making disclosures to vetting officers. She explained:
“… If they are concerned that the clearance subject may have access to their answers there is a reasonable likelihood in my view that the referee will be less open. In many cases the referee will be someone who has an ongoing relationship with the clearance subject, such as a colleague. If they believe or fear that the clearance subject will find out what they have said, it would be natural for them to want to protect the relationship with the clearance subject by not fully disclosing information that might be harmful to the clearance subject’s application. They may be concerned about embarrassing the clearance subject (such as by disclosing past indiscretions) or may not want the clearance subject to know that they are aware of certain information about the clearance subject (such as personal or workplace incidents which the referee is aware of from sources other than the clearance sheet). It is for this reason that AGSVA undertakes to maintain the confidentiality of referee reports.”[112]
[112] Ms Milne’s Affidavit at [67]
Mr Prinn responded saying:
“… a referee feeling safe in disclosing information to the vetting officer is one part of the story but integrity of the system and Australia’s whole legal system is predicated on that information being subject to examination and challenge given the potential consequences to the subject concerned. If the referee is speaking honestly why would they be concerned by disclosure and the argument that they would be less open ignores the legal principles underpinning our systems of administrative and criminal laws. Allowing decisions to be supported by unchallenged and in my situation blatant lies with no provision for procedural fairness and detailed analysis or examination as suggested by Ms Milne is simply unacceptable to me and I believe the Australian community.”[113]
[113] Mr Prinn’s statement and submission at [42]
Ms Milne set out the steps that the Department had taken in advising each of the referees consulted during AGSVA’s assessment of Mr Prinn’s security clearance of his request under the FOI Act. With Mr Prinn’s consent, the Department disclosed that Mr Prinn was the person who had made the request and provided them with a copy of the record of their interview. Each was asked whether the document should be released in full or in part to Mr Prinn. One of his referees had no objection to the release but the other did citing assurances of confidentiality that had been given, the risk that disclosure would enable individuals to prepare their responses in the future and the risk that referees would be less forthcoming in providing information to AGSVA in future. The Department had put the following questions to the referees:
“68.1 Would you be prepared to participate frankly and honestly as a referee for a security clearance applicant in the future if some or all of the document containing your responses to the questions asked in the interview were released, particularly to the person you are providing comments about?
68.2Would any adverse consequences flow from the disclosure of some or all of the document? (i.e. potential harm to your ongoing relationship with Mr Prinn).
68.3Is there anything about the nature of any of the information you have provided which makes it particularly sensitive or private?
68.4When you provided your responses to the interview questions asked by the AGSVA assessing officer, did you expect they would be kept confidential? If so, what was the basis on which you formed that expectation?.”[114]
[114] Ms Milne’s Affidavit at [68]
Mr Prinn said that he had no issue with the last three questions that were posed to the referees but he took issue with the first and raised concerns about the fourth:
“… Asking questions related to the circumstances and their recollections of the interviews they were part of are fair but 68.1 asks about possible future events and is not relevant to the facts for this matter. The fact that this and the other affidavits cite emails that went to referees that simply were not ever sent is a significant matter for me when considering any responses to 68.4. I believe that no such guarantees of confidentiality were made and again as senior experienced AGSVA officers they would have been aware of procedural fairness requirements and other admin law factors relevant. I also believe that if they have ever been cautioned as I have been in other processes that the attempts to influence the decision through lies and other misleading but still damaging testimony may not have occurred. The potential impacts of these processes as occurred in my situation demand that all relevant legal requirements are met and that the vetting process be a valid one with integrity and the confidence of all involved. The current process is far from that and the arguments put forward drawing such a long bow in reality show the current AGSVA to be years behind government guidelines, legislative intents and guidance, administrative and employment law intentions and community expectations. The referees are more likely to have felt safe that DSA would deny their release and that therefore their testimony would not be subject to examination or challenge. In such circumstances the potential for dishonest and misleading testimony not subjected to scrutiny or analysis for its relevance, reliability and base truthfulness is real and the system is in turn compromised. The national and community interest lies in AGSVA undertaking reliable and legally trustworthy processes where clearance subjects are provided with an ethical and unbiased assessment.”[115]
[115] Mr Prinn’s statement and submission at [43]
I certify that the one hundred and thirty seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,Signed: ………..........[sgd]....................................
Associate
Dates of Directions Hearing 20 February 2015, 20 July 2015 and 23 March 2016
Date of Decision 29 June 2016
For the Applicant Self-represented
Solicitor for the Respondent Mr J Davidson,
Australian Government Solicitor
SCHEDULE OF DOCUMENTS REMAINING IN ISSUE
Item
Serial
Date
File reference
Author
Addressee
Document description
Decision
Pages
1
51
15/07/2010
13533
Mr Jack Nicholson
Vetting Analysis Report
Release with deletions in accordance with section 22 on grounds that deleted material is exempt under subsections 33(a)(i) and 47E(a) of the FOI Act.
10
1
53
19/06/2011
13533
Ms Louise Riethmuller
Psychological Assessment Report
Release with deletions in accordance with section 22 on grounds that deleted material is exempt under subsections 33(a)(i) and 47E(a) of the FOI Act.
15
1
55
Referee reports
Deny in accordance with subsections 33(a)(i) and 47E of the FOI Act.
150
1
106
16/06/2009
PV13533
Mr Jack Nicholson
Vetting Analysis Report
Release with deletions in accordance with section 22 on grounds that deleted material is exempt under subsections 33(a)(i) and 47E(a) of the FOI Act.
5
1
107
18/05/2009
13533
Mr John Raue
Psychological Security Assessment
Release with deletions in accordance with section 22 on grounds that deleted material is exempt under subsections 33(a)(i) and 47E(a) of the FOI Act.
3
Item
Serial
Date
File reference
Author
Addressee
Document description
Decision
Pages
1
131
05/06/2011
13533
Ms Louise Riethmuller
Psychological Assessment Interview Notes and Analysis
Release with deletions in accordance with section 22 on grounds that deleted material is exempt under subsections 33(a)(i) and 47E(a) of the FOI Act.
23
1
132
30/05/2011
13533
Psychological Assessment Report
Release with deletions in accordance with section 22 on grounds that deleted material is exempt under subsections 33(a)(i) and 47E(a) of the FOI Act.
15
5
31
15