Roberts-Smith and Inspector General Australian Defence Force (Freedom of information)
[2023] AATA 335
•6 March 2023
Roberts-Smith and Inspector General Australian Defence Force (Freedom of information) [2023] AATA 335 (6 March 2023)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2022/6920
Re:Roberts-Smith VC MG
APPLICANT
Inspector General Australian Defence ForceAnd
RESPONDENT
Decision
Tribunal:Justice T Thawley, Deputy President
Date:6 March 2023
Place:Sydney
The Tribunal makes the following orders:
1.Pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth), until further order, disclosure to any person other than the respondent, the respondent’s representatives, the Tribunal and Tribunal staff of the redacted parts of T5, T14, T17 and T18 lodged on 28 October 2022 be prohibited.
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Justice T Thawley, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – request for confidentiality order over information in Tribunal documents – confidentiality order granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 35(4), 35(5), 37(1)(b)
Freedom of Information Act 1982 (Cth) – ss 4(1), 37(1)(b), 46(b), 47F, 63(1)
CASES
News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88
REASONS FOR DECISION
Justice Thawley, Deputy President
INTRODUCTION
On 26 August 2022, Mr Roberts-Smith applied to the Administrative Appeals Tribunal for review of a decision of the Freedom of Information Commissioner insofar as it upheld a decision of the respondent, the Inspector General of the Australian Defence Force (IGADF), that four documents – three diary entries and a calendar entry – were exempt from production under the Freedom of Information Act 1982 (Cth) (FOI Act).
On 28 October 2022, the IGADF lodged with the Tribunal documents relevant to the review as required by s 37(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Four of the Tribunal documents contained redactions: T5, T14, T17 and T18 (Confidential T Documents).
At a directions hearing on 21 November 2022:
·the IGADF’s representative requested that the Tribunal make an order under s 35(4) of the AAT Act prohibiting or restricting publication or disclosure of the redacted parts of the Confidential T Documents; and
·Mr Roberts-Smith’s representative opposed the making of such an order on a final basis and instead sought that appropriate directions only be imposed on an interim basis to enable the exchange of submissions and evidence on the question of whether such an order should be made.
Directions were made on 21 November 2022 for the parties to provide written submissions and evidence in relation to the order sought by the IGADF. Directions were made in the following terms:
3. A confidentiality order be made pursuant to s 35(4) of the AAT Act in respect of the redacted parts of T5, T14, T17 and T18 of the documents lodged under s 37(1AF) of the AAT Act prohibiting disclosure of those parts to any person other than the respondent, the respondent’s representatives, the Tribunal and Tribunal staff until the Tribunal determines the respondent’s application for an order pursuant to s 35(4) of the AAT Act (the confidentiality application).
4. Access to so much of the respondent’s evidence or submissions which refer to the information the subject of order 3 be restricted to the respondent, the respondent’s representatives, the Tribunal and Tribunal staff, until the Tribunal determines the confidentiality application.
On 9 December 2022, the IGADF’s representative filed written submissions in support of the proposed s 35(4) order and a confidential affidavit of Deputy IGADF Commodore Fiona Sneath sworn on 9 December 2022 (Sneath Affidavit). The Sneath Affidavit has not been seen by Mr Roberts-Smith or his representatives.
On 16 December 2022, Mr Roberts-Smith’s representative filed written submissions. Whilst Mr Roberts-Smith still opposed the making of the confidentiality order on a final basis, he did not oppose directions being made until the Tribunal determined its review of the decision of the Commissioner, subject to the Tribunal being satisfied that the redacted information, if disclosed, would reveal the contents of information the subject of the FOI request.
The parties were content for the Tribunal to determine the application for an order under s 35(4) on the papers without the need for an oral hearing.
STATUTORY FRAMEWORK
Section 35 of the AAT Act includes:
(4)The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i)information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.
(5)In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a)that hearings of proceedings before the Tribunal should be held in public; and
(b)that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c)that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
Section 63(1) of the FOI Act sets out certain matters which the Tribunal must have regard to when considering whether to make directions under section 35(4) of the AAT Act:
(1)In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975, the Tribunal must:
(a) have regard to:
(i)the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate; …
The phrase “exempt matter” is defined in s 4(1) of the FOI Act as “matter the inclusion of which in a document causes the document to be an exempt document”. The phrase “exempt document” is defined in s 4(1) of the FOI Act and includes a document exempt under Part IV of the FOI Act, which includes documents falling within the terms of sections 37(1)(b), 46(b) and 47F of the FOI Act. As to these:
·section 37(1)(b) is concerned with information that could reasonably be expected to disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law;
·section 46(b) is concerned with documents the disclosure of which would be contrary to a relevant direction; and
·section 47F relates to documents which would involve the unreasonable disclosure of personal information about a person where disclosure would, on balance, be contrary to the public interest.
CONSIDERATION
Mr Roberts-Smith submits, and I accept, that a determination of whether the redacted material in the Confidential T Documents contains exempt matter, having regard to ss 37(1)(b), 46(b) or 47F of the FOI Act, may pre-judge on an interlocutory basis similar or identical questions that will be the focus of the Tribunal’s review of the Commissioner’s decision. That should not occur.
By his decision, the Commissioner affirmed the decision of the IGADF “that the diary entries … were exempt under s 46(b) of the FOI [Act] are exempt under that provision”. That decision is a principal focus of this review. I am satisfied that there is a sufficient connection between the information redacted in the Confidential T Documents and the contents of the diary entries that disclosure of the former would disclose at least part of the contents of the latter.
I am satisfied that, in these circumstances, it is appropriate to make a direction under s 35(4) – see, for example: News Corporation Limited v National Companies and Securities Commission (1984) 5 FCR 88. I have taken into account the matters in s 35(5).
Mr Roberts-Smith contended that an order under s 35(4) should not be made on a final basis. Mr Roberts-Smith contended for an order which would only continue until any determination by the Tribunal of the review or further order, whichever is the earlier. The difficulty with this form of order is that the s 35(4) direction would terminate on conclusion of the review, even if that review were unsuccessful. The preferable course is to make the order subject to further order. If Mr Roberts-Smith is successful in his application for review, the issue can be revisited.
The respondent sought its costs for this application. Mr Roberts-Smith submitted that the question of costs should follow the result of the review. Neither party referred to s 66 of the FOI Act. The question of costs should be addressed at the conclusion of the application for review.
DECISION
For the reasons set out above, the following order should be made:
1.Pursuant to section 35(4) of the Administrative Appeals Tribunal Act 1975 (Cth), until further order, disclosure to any person other than the respondent, the respondent’s representatives, the Tribunal and Tribunal staff of the redacted parts of T5, T14, T17 and T18 lodged on 28 October 2022 be prohibited.
1. I certify that the preceding 16 paragraphs are a true copy of the reasons for the decision herein of Justice T Thawley, Deputy President
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Associate
Dated: 6 March 2023
Date final submissions received: 16 December 2022 Counsel for the Applicant: A Moses SC & P Sharp Solicitors for the Applicant: Mark O'Brien Legal Counsel for the Respondent: C Ernst Solicitors for the Respondent: Australian Government Solicitor
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