Ryan; Secretary, Department of Home Affairs and (Freedom of information)
[2025] ARTA 101
•17 February 2025
Ryan; Secretary, Department of Home Affairs and (Freedom of information) [2025] ARTA 101 (17 February 2025)
Applicant/s: Secretary, Department of Home Affairs
Respondent: Hannah Ryan
Tribunal Number: 2024/2272
Tribunal:Deputy President Britten-Jones
Place:Canberra
Date:17 February 2025
Decision:The decision of the Tribunal is to set aside the decision of the Freedom of Information Commissioner dated 13 March 2024 and to substitute a decision that the Pre-screening Questions are exempt from disclosure under s 33 (a)(i) of the Freedom of Information Act 1982 (Cth).
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Deputy President Britten-Jones
Catchwords
FREEDOM OF INFORMATION – review of decision of the Freedom of Information Commissioner with respect to transcripts of interviews of Vietnamese nationals – applicant contends that material in the documents in issue is exempt from disclosure under s 33(a)(i) of the Freedom of Information Act 1982 (Cth) – whether disclosure of pre-screening questions would, or could reasonably be expected to, cause damage to the Commonwealth - decision under review set aside
Legislation
Freedom of Information Act 1982 (Cth)
Cases
Kline v Official Secretary to the Governor-General [2013] HCA 52; (2013) 249 CLR 645
Secretary, Department of Prime Minister and Cabinet and Summers [2019] AATA 5537
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180Secondary Materials
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982
Statement of Reasons
This application relates to a request for access to documents made pursuant to the Freedom of Information Act 1982 (Cth) (the FOI Act). The parts of the documents that are the subject of this application for review comprise seven very short questions found within each of 15 records of interview conducted with Vietnamese nationals who were intercepted at sea and taken to Christmas Island in 2018. I refer to the questions in issue as the Pre-screening Questions. There is no dispute with respect to the answers to the Pre-screening Questions which have been found to be exempt from disclosure together with other parts of the interviews.
The Freedom of Information Commissioner, who made the decision under review on 13 March 2024, considered that the Pre-screening Questions were ‘general, high-level and routine in nature’[1] and that the Department had not satisfied its onus of demonstrating why access to them should not be given. For the purposes of this hearing, the Applicant has provided affidavits (open and closed) from Rear Admiral Sonter in support of the claim that the Pre-screening Questions should be exempt from disclosure under ss 33(a)(i) and 47E(d) of the FOI Act.
[1] T-Documents, T2 at 22.
I set out below the legislative framework and then I will consider the evidence from the Rear Admiral.
Legislative Framework for Section 33(a)(i) - Documents affecting the security of the Commonwealth
The High Court considered the legislative framework of the FOI Act in Kline v Official Secretary to the Governor-General[2] and said:
.… The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non-disclosure.
[2] [2013] HCA 52; (2013) 249 CLR 645 at [37] per French CJ, Crennan, Kiefel and Bell JJ.
The general objects of the FOI Act are set out in s 3 as follows:
(1)The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2)The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government’s activities.
(3)The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4)The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
In furtherance of the object in s 3(1)(b) of the FOI Act, s 11(1) provides that:
(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
Section 11A(3) provides that where a person makes a request in accordance with s 15(2) to an agency or Minister for access to a document and pays the required charge, the agency or Minister must give the person access to the document in accordance with the Act ‘subject to this section’. Section 11A(4) provides that the agency or Minister is not required to give the person access to the document if the document is an exempt document. Section 11A(5) provides that the agency or Minister must give access to the document if it is conditionally exempt unless access to the document would be contrary to the public interest.
The term “exempt document” is relevantly defined in s 4(1) to include: ‘a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)’. Section 31B provides that:
A document is exempt for the purposes of this Part if:
(a) it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5)
Section 33 in Division 2 of Part IV 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)the defence of the Commonwealth; or
(iii)the international relations of the Commonwealth; or
(b)would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
Note: See also subsection 4(10).
In Secretary, Department of Prime Minister and Cabinet and Summers[3] Perry J said with respect to s 33 of the FOI Act:
[33] First, as the Full Court held in Commonwealth v Hittich (1994) 53 FCR 152 at 154, s 33(a)(iii) (then s 33(1)(a)(iii)) “does not provide any basis for a public interest criterion extending beyond the terms of the section. Either a document is within the section, in which case it is an exempt document, or it is not”…Equally, the strong personal interest which an applicant may have in obtaining access to the document in question is irrelevant…
[34] Secondly, the criteria prescribed by s 33(a) and (b) do not turn upon an assessment of the reasonableness of the Department’s claims. Rather, they turn upon cause and effect which can reasonably be anticipated…
[3] [2019] AATA 5537 at [33]-[36] (some citations omitted).
The phrase ‘could reasonably be expected to’ was considered by the Full Court of the Federal Court in Attorney-General’s Department v Cockcroft[4] at 190 where Bowen CJ and Beaumont J said:
In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information” were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like. To construe s 43(1)(c)(ii) as depending in its application upon the occurrence of certain events in terms of any specific degree of likelihood or probability is, in our view, to place an unwarranted gloss upon the relatively plain words of the Act. It is preferable to confine the inquiry to whether the expectation claimed was reasonably based: see Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 per Mason J and per Gibbs CJ.
[4] (1986) 10 FCR 180.
Sheppard J agreed with Bowen CJ and Beaumont J in Cockcroft but gave separate reasons in which he said at 196:
In my opinion he will not be justified in claiming exemption unless, at the time the decision is made, he has real and substantial grounds for thinking that the production of the document could prejudice that supply. But, stringent though that test may be, it does not go so far as to require the decision-maker to be satisfied upon a balance of probabilities that the production of the document will in fact prejudice the future supply of information.
The FOI Guidelines say at paragraph 5.17:
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.
Evidence
Rear Admiral Sonter joined the Royal Australian Navy in 1990. He now holds the position of Commander Joint Agency Taskforce for Operation Sovereign Borders which is a military-led border security operation established to ensure a whole of government effort to combat people smuggling and protect Australia’s borders.
The Rear Admiral deposes to the success of Operation Sovereign Borders and to the ongoing need to remain vigilant in the face of dedicated efforts by people smugglers to breach Australia’s borders which he believes would result in an increase of unauthorised maritime arrivals. He explains in great detail how important the operation is to the security of the Commonwealth and how there is a real potential for harm to the operation and to security if the Pre-screening Questions were released. He believes that their release would undermine the gathering of relevant and accurate information and would provide advantages to organised criminal elements. If the Pre-screening Questions are disclosed then that would encourage false and scripted responses and would embolden the people smugglers who could falsely represent that the pre-screening process is a test that they can teach people to ‘beat’.
Consideration
I accept the evidence from the Rear Admiral and consider that disclosure of the Pre-screening Questions would, or could reasonably be expected to, cause damage to the security of the Commonwealth. Rear Admiral Sonter is a senior and highly experienced member of the Australian Defence Force and his views on the likely impact of disclosure of the Pre-screening Questions should be given appropriate weight. Disclosure of the questions posed to unauthorised arrivals would give a very real advantage to them and the people smugglers for the reasons explained by the Rear Admiral. I accept the evidence from the Rear Admiral that disclosure would likely result in an increase in the number of attempted irregular maritime ventures which would damage Operation Sovereign Borders and have a very real and negative impact on the security of the Commonwealth. Operation Sovereign Borders is important to Australia’s prosperity and security because it maintains the integrity and effectiveness of Australia’s border protection regime.
I am satisfied on the evidence before me that the Pre-screening Questions in issue are exempt from disclosure under s 33(a)(i) because disclosure would, or could reasonably be expected to, cause damage to the security of the Commonwealth.
Whilst it is unnecessary for me to consider the additional claim for exemption under s 47E(d), it is my view that the material in question is conditionally exempt and that access would be contrary to the public interest for the same reasons explained by the Rear Admiral. Disclosure of the Pre-screening Questions would clearly have a very negative impact on the proper and efficient conduct of the operations of Operation Sovereign Borders.
Decision
The decision of the Tribunal is to set aside the decision of the Freedom of Information Commissioner dated 13 March 2024 and to substitute a decision that the Pre-screening Questions are exempt from disclosure under s 33 (a)(i) of the FOI Act.
20. I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
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Associate
Dated: 17 February 2025
Date(s) of hearing: 5 February 2025 Applicant’s Counsel: Mr Nathan Sinnathurai Applicant’s Representative: Ms Melissa Murphy (Australian Government Solicitor)
Respondent’s Representative: No appearance
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