Saleam and Director-General, National Archives of Australia

[2024] AATA 1390

Saleam and Director-General, National Archives of Australia [2024] AATA 1390 (17 May 2024)

Division:SECURITY DIVISION

File Number(s):      2019/5875; 2020/4806-07; 2020/4833; 2020/8037; 2020/8041; 2021/1974-76; 2021/1978-79; 2021/3487-90; 2022/1814-17; 2022/1819-20; 2022/3258-63

Re:James SALEAM

APPLICANT

Director General, National Archives of AustraliaAnd  

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:17 May 2024

Place:Sydney

The decisions under review are affirmed.

............................[SGD]............................................

Deputy President B W Rayment OAM KC

CATCHWORDS

SECURITY – National Archives of Australia – decision relating to release of an ASIO record – whether records exempt under s 33 Archives Act – whether discretion should be exercised to allow release of part of the records – decisions under review affirmed

LEGISLATION

Archives Act 1983 (Cth)

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

17 May 2024

1. The applicant sought access to Commonwealth records – namely, records of the Australian Security and Intelligence Organisation (ASIO) – under the Archives Act 1983 (Cth)(the Act). Some documents or parts of documents were released to the applicant, and access to other documents or parts of documents was refused by the respondent. The applicant has sought review of the claims for exemption, save with respect to two categories of documents, which are not in issue.

2. The respondent has the onus of satisfying the Tribunal that the decision of the respondent on internal review was justified; section 51(a) of the Act. For that purpose, open and closed evidence was led on the hearing, and submissions were made by the parties in the open session and submissions were made by the respondent in the closed session.

3. Efforts were made by the respondent’s counsel, Mr Davidson, to make clear to the applicant in the open session as much of the respondent’s case as possible. Similarly, a redacted copy of the closed affidavit of the respondent’s primary witness, Mr Dowell, was served on the applicant and filed with the Tribunal so as to give the applicant some notice of the kind of matter contained in the closed affidavit.

4. The applicant was self-represented and made submissions as to a number of matters of fact and law, which I have dealt with below to the extent necessary. The applicant also made a number of submissions going to unproved questions of fact. The applicant gave no evidence before the Tribunal, but cross-examined the two witnesses called by the respondent in the open session. He made submissions going to facts relating to his need for certain documents, and other matters, and I explained to him that I would not treat his statements made by him in the course of submissions as evidence before me, pointing out that if he wished to tender oral evidence, he would have the opportunity to do so after the respondent had closed its case in the open session.  Our interchange is transcribed.  In the result, the only oral evidence which was tendered before me in the open session was that led by the respondent, from Ms Doyle, the Assistant Director-General Access and Public Engagement at the National Archives of Australia and from Mr Dowell (an assumed identity), a senior officer of ASIO. The applicant referred to certain documents including the judgment of the Court of Criminal Appeal in a case concerning an appeal from one of his criminal convictions, and also included a judgment of Hidden J in the Supreme Court. Instead of giving evidence himself, he tendered, without objection, a number of the documents that were released to him by the respondent, documents marked exhibit B in the evidence.

5. There is no dispute in the case that all records in issue are Commonwealth records.

6. I am satisfied by the evidence of Ms Doyle and Mr Dowell that searches were properly conducted by the respondent for documents specified by the applicant in his requests for documents.

7. As Ms Doyle said in cross-examination the reasons why the applicant sought the documents in question was not a focus of the respondent.  I was similarly pressed with submissions by the applicant about his reasons for the document requests which he made. He exhibited to his statement of facts issues and contentions records of earlier proceedings in which he or others were involved, which bear upon that matter. He apparently proposes to conduct further proceedings if he unearths relevant documents for that purpose. The actual issue before the Tribunal is whether the exemptions are properly claimed.

8. Exemptions are claimed under some parts of s.33 of the Act. Relevant provisions are s.33(1)(a), s.33(1)(d), s.33(1)(e )(ii), s.33(1)(e )(iii) and s.33(1)(g). Those parts of s.33 are as follows:

   (a) information or matter the disclosure of which under this Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth;

   …

   …

   (d) information or matter the disclosure of which under this Act would constitute a breach of confidence;

   (e) information or matter the disclosure of which under this Act would, or could reasonably be expected to:

   …

   (ii) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law; or

   (iii) endanger the life or physical safety of any person;

   …

   (g) information or matter the disclosure of which under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person)

9. The various provisions of s.33 take effect according to their terms. Contrary to a submission of the applicant, no implication should be made into the text of the section making an exception to the application into any of them in the light of the provisions of another or other of the section’s provisions.

10. For the purposes of these reasons, I have examined the documents and the redacted parts of documents in the light in particular of the open and closed evidence (all of which I accept)  to satisfy myself that the exemptions are properly claimed.  My acceptance of the evidence of Mr Dowell in the open session is, despite two submissions to the contrary, made by the applicant in his closing submissions. My examination of the documents satisfies me that all the documents and redactions are within at least one of the exemptions claimed, so that none of the documents or redacted portions of documents ought now to be released. 

11. The documents placed before me by the applicant in Exhibit B and the other records put before the Tribunal including those mentioned in [4] above, cast no light on the finding I have made in [10] above.

12. The order of the Tribunal is accordingly that the reviewable decisions be affirmed.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

........................................................................

Associate

Dated: 17 May 2024

Date(s) of hearing:	19 & 20 February 2024
Date final submissions received:	26 March 2024
Applicant:	In person
Counsel for the Respondent:	Mr J Davidson
Solicitors for the Respondent:	Mr J Hyland, AGS