Thomas; Secretary, Department of Defence and (Freedom of information)
[2018] AATA 604
•21 March 2018
Thomas; Secretary, Department of Defence and (Freedom of information) [2018] AATA 604 (21 March 2018)
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. 2017/5020
FREEDOM OF INFORMATION DIVISION ) Re SECRETARY, DEPARTMENT OF DEFENCE Applicant
And
HEDLEY THOMAS
Respondent
DECISION
Tribunal The Honourable Justice J A Logan RFD, Deputy President
Deputy President R I Hanger AM QC
Senior Member A A Nikolic AM CSCDate21 March 2018
PlaceBrisbane
Decision 1. The decision of the Information Commissioner dated 26 July 2017 to give the respondent access to the documents at issue, subject to the deletion of personal information exempt under s 47F of the Freedom of Information Act 1982 (Cth), be set aside.
2. In lieu thereof, the Tribunal decides that access to those documents, even with the deletion of that personal information, be refused, because the giving of access would, on balance, be contrary to the public interest.
...................................................................
The Honourable Justice J A Logan RFD, Deputy President
Presiding Member
CATCHWORDS
FREEDOM OF INFORMATION – Exemptions – deliberative processes – text message exchange between Chief and Vice Chief of the Australian Defence Force – whether, on balance, access would be contrary to the public interest – decision under review set aside on the basis that, on balance, access would be contrary to the public interest such that the documents are exempt.
COURTS AND TRIBUNALS – Whether reasonable apprehension of bias of a tribunal member on the basis of prior professional association – possession of this same prior professional experience relevant to the appointment of the member both to the tribunal and to that member’s assignment to a particular Division of the Tribunal – prior professional association with authors of documents to which access sought ceased years before date of authorship of those documents or other relevant events – authors of documents not called as witnesses and no question as to their credibility – HELD: no reasonable apprehension of bias.
PRACTICE AND PROCEDURE – Administrative Appeals Tribunal – allegation of apprehension of bias by one member of multi-member panel constituted for the purpose of reviewing a decision – consideration as to whether merits of allegation should be ruled on by member concerned or by panel and whether the question needed to be dealt with as a preliminary issue or but one to be determined after hearing of evidence and submissions on the merits of the substantive issue on the review – HELD: practice to adopt dependent on circumstances of a particular case – in circumstances of case to hand issue determined by panel collectively as part of deciding merits of substantive issue on the review.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 7, 17CA, 33, 37, 42,
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Courts Act 1828 (UK) s 24
Bill of Rights 1689 (Eng.)
Defence Force Discipline Act 1982 (Cth)
Defence Force Reorganisation Act 1975 (Cth)
Freedom of Information Act 1982 (Cth) ss 11, 11A, 11B, 47C, 47F, 55K, 57A, 93A
Industrial Relations Act 1988 (Cth) s 10
Judiciary Act 1903 (Cth) s 39B
Remuneration Tribunal Act 1973 (Cth)
CASES
Barton v Walker [1979] 2 NSWLR 740
Carruthers v Connolly [1998] 1 Qd R 339
Conway v Rimmer [1968] AC 901
Dreyfus and Secretary, Attorney-General’s Department [2015] AATA 962
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Kartinyeri v Commonwealth of Australia (1998) 72 ALJR
Livesey v New South Wales Bar Association (1993) 151 CLR 288
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423
Millar v Bornholt (2009) 177 FCR 67
National Capital District Commission v Yama Security Services Ltd [2017] PGSC 7; SC1575
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342
Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78
Rogers v Wentworth [1998] NSWCA 20 (Rogers v Wentworth) and Barton v Walker [1979] 2 NSWLR 740
Rovere and Secretary, Department of Education and Training [2015] AATA 462
Sankey v Whitlam (1978) 142 CLR 1
Stollery v The Greyhound Racing Control Board (1972) 128 CLR 509
The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379
Wood; Secretary, Department of Prime Minister and Cabinet and (Freedom of Information) [2015] AATA 945
REASONS FOR DECISION
21 March 2018 The Honourable Justice J A Logan RFD, Deputy President
Deputy President R I Hanger AM QCSenior Member A A Nikolic AM CSC
“I believe in the healing light of truth.”[1]
Lieutenant General Angus Campbell, Chief of Army
[1]Lieutenant General Angus Campbell AO, DSC, Chief of Army, Australian Defence Force, statement to Mr Chris Masters, rendered in the first person from the third person version quoted in, C Masters, No Front Line – Australia’s Special Forces War in Afghanistan, Allen & Unwin 2017, p xi.
1.Beginning early in the morning of 13 April 2016 and extending over the course of a few hours that morning, Air Chief Marshall (ACM) Mark Binskin AC and Vice Admiral (VADM) Ray Griggs AO, CSC, respectively then, as now, the Chief and Vice Chief of the Australian Defence Force (ADF), exchanged a series of text messages. There were seventeen (17) in all. The subjects of their exchange were the form in which a “letter to the editor” (the Letter), signed by each of them and the Chiefs (or, in the case of the Army, the then Acting Chief) of each arm of the ADF, had been published in The Australian newspaper (the newspaper) that day and how a response ought to be made to the publication of the Letter in that form.
2.Two days later, on 15 April 2016, Mr Hedley Thomas, in his capacity as a journalist employed by the publisher of the newspaper as its National Chief Correspondent, applied under the Freedom of Information Act 1982 (Cth) (FOI Act) for access to a range of ADF documents relating to the Letter and the monitoring of the reaction to it. The text messages fall within the scope of documents covered by Mr Thomas’ application.
3.The capacity in which Mr Thomas applied for access forms part of the context in which this review application falls to be decided but the legally enforceable right of access to documents in accordance with the FOI Act, conferred by s 11 of the FOI Act, is not dependent upon the capacity in which a person seeks access. Further, subject to particular statutory qualifications which are not presently relevant, the right of access is not dependent on the reasons a person gives for seeking access or on an affected agency's or Minister's belief as to what are that person’s reasons for seeking access: s 11(2), FOI Act.
4.It is common ground that, in terms of s 47C of the FOI Act, disclosure of the text messages would disclose “deliberative matters”. They are thus “conditionally exempt”. The text messages also make reference to two individuals. As to these references, it is also common ground that these references constitute personal information for the purposes of s 47F of the FOI Act and that the disclosure of this information would be unreasonable. Neither party contends that there is a public interest in the granting of access to the text messages in a completely unredacted form, i.e. in a form which would entail the disclosure of the personal information, contrary to the decision of the Information Commissioner. [2]
[2]The Australian and Department of Defence (Freedom of Information) [2017] AICmr 71.
5.It is the Secretary to the Department of Defence (the Secretary), not Mr Thomas, who has sought the review of the Information Commissioner’s decision. In relation to the Department of Defence and for the purposes of the FOI Act, it is the Secretary who is the relevant “principal officer” and decision-making authority.[3]
[3] FOI Act, s 23.
The Issue
6.Having regard to what is common ground between the parties, the issue in these review proceedings is whether, in terms of s 11A(5) of the FOI Act, access to the text messages with the personal information redacted would, on balance, be contrary to the public interest such that they are exempt documents.
The context in which the text messages came to be exchanged
7.In the months leading up to April 2016, the newspaper expressed views in its articles and editorials concerning the cultural inclusion and diversity policies (the policies) which had been adopted by the ADF. As confirmed in evidence by Brigadier (BRIG) Christopher Smith, who was the only witness called in the proceeding, those policies were not just those of the ADF but took up policies of the Australian government of the day.
8.BRIG Smith gave evidence not just in a personal capacity but, officially, on behalf of the Department of Defence as a whole. At the time when he made his affidavit, he held, as a Colonel, the appointment of Chief of Staff to the Chief of the ADF. Since then, he has been promoted to the rank of Brigadier and, in that rank, is posted to Washington DC in the United States of America as the Chief of the ADF’s representative to the United States Chairman of the Joint Chiefs of Staff. We give further details of his evidence and make some observations in relation to it later in these reasons.
9.The anterior articles and editorials form part of the evidence before us. One of the anterior editorials was that published in the newspaper on 8 April 2016, titled ‘Military no place for tokenism’ (the Editorial).
10.The Secretary contends that the anterior articles and editorials were disapproving of the policies. That is not a view shared by Mr Thomas. In our view, the anterior articles cautioned against prioritising such policies ahead of more compelling capability requirements. An adherent to those policies might well perceive them as disapproving of them. They are certainly not laudatory of them.
11.The real point for present purposes about the articles and editorials is that they raised for public consideration the existence of the policies, the wisdom of their adoption and implementation and their possible impact on the warfighting efficiency of the ADF. The articles and editorials were, in our respectful opinion, models of responsible journalism in respect of a subject which was undoubtedly apt for a national newspaper.
12.Lest we be misunderstood, we make it explicit that that expression of opinion does not in any way carry with it either disagreement or agreement with the views expressed in the anterior articles and editorials about the policies. It is neither necessary nor appropriate for us to embark upon a consideration of the merits of the policies. We refrain from expressing any view on that subject. Instead, it is presently necessary to recognise that, in a free, democratic society such as we enjoy in Australia, the newspaper and Mr Thomas as its National Chief Correspondent (and for that matter, Mr Greg Sheridan, its Chief Foreign Correspondent, a notable author of anterior articles), as members of what is sometimes termed “the Fourth Estate”, by both reporting news and provoking and promoting thought on issues, have a legitimate and valuable role to play in the functioning of that society. The raising for public consideration of the existence of the policies, the wisdom of their adoption and implementation (all of which we took to be embraced within the interest in “defence culture” voiced by Mr Thomas with respect to access to the text messages) and their possible impact on the warfighting efficiency of the ADF was unquestionably part of that role. The subject was and remains an important, even vital, one.
13.There are well recognised limits on the Fourth Estate, the laws relating to treason, sedition, defamation and contempt of Parliament or the courts offering obvious examples. But no transgression of any of these is even remotely raised by the anterior articles and editorials.
14.The Letter was responsive to the Editorial. Its authors, who were then, collectively, the most senior officers of the ADF (or, in the case of the Chief of Army, acting in his place) decided that a response was necessary. Collectively, they were the professional heads of the Australian profession of arms. A noteworthy feature of BRIG Smith’s evidence on this subject was that this decision was made by these very senior officers alone. This was not challenged by Mr Thomas. BRIG Smith made no reference in his evidence to any ministerial involvement in the decision.
15.The Letter specified the rationale for the policies and extolled their benefits, each as the authors saw them. In support of these propositions, it also stated that, in relation to diversity, the policy was in very similar terms to that of the newspaper (seemingly on the basis that what was apt for a newspaper was apt for the ADF).
16.A version of the Letter was published in the newspaper on 13 April 2016. A version of it was also published online in the newspaper’s digital space. The print version differed from the form in which the Letter had been sent to the newspaper. There was no indication in the newspaper’s print edition that day that the text of the Letter as published differed from that signed by its authors and sent to the newspaper.
17.The newspaper made reference in its submissions to its adoption in relation to the Letter, of what it asserted were well-known and accepted editorial practices regarding letters to the editor. The material before us also included some Press Council adjudications. It is not our role to review these. We regard them as something of a distraction from the task at hand and therefore make no further reference to them. At most, they underscore that controversy about the form of the editing endured after 13 April 2016.
18.We have, for completeness, included as an annexure to these reasons a copy of the Letter which highlights the editorial changes made to the Letter. We have done this so as to give particularity to the occasion for the exchange of the text messages. As we mentioned at the outset, it was the form in which the Letter came to be published which initiated the exchange of these text messages.
19.We have taken the contents of the Letter both as authored and in the form published into account in reaching our decision. That has not been, as we have already stated, for the purpose of passing judgement on the policies but rather for the purpose of determining whether the affording of access to the text messages would, on balance, be contrary to the public interest.
20.Also published in the newspaper on 13 April 2016, was another editorial which raised for consideration the wisdom of the adoption of the policies by the ADF.
21.Later on 13 April 2016 and as a result of a decision taken by ACM Binskin after consultation with VADM Griggs, the Letter in the form signed by its authors came to be published on the website of the Department of Defence.
22.Having regard to the anterior articles and editorials (including that of 8 April 2016 – the Editorial), to the publication of the Letter on 13 April 2016 in the form published by the newspaper and to the newspaper’s editorial that day, the subject of the adoption and implementation of the policies and the wisdom of each had by the morning of 13 April 2016 as at the time when the exchange of text messages commenced (and very probably by 8 April 2016) become one of public controversy.
23.It is not necessary to refer to the procedural history of Mr Thomas’ FOI application following its lodgement with the Department of Defence. It suffices to record that a number of documents were disclosed to him either in whole or in part but that the granting of access to the text messages remains a subject of enduring controversy as between the Secretary and him.
Jurisdiction
24.The jurisdiction which falls to us to exercise is that conferred on the Tribunal by s 57A(1)(a) of the FOI Act. Materially, this makes the decision under review that of the Information Commissioner, given under s 55K of the FOI Act, not the original or internal review decisions made within the Secretary’s department in respect of the FOI application. Beyond noting that it was the Information Commissioner’s decision which fell for review, neither party submitted that this was otherwise of any special significance in the circumstances of the present case.
25.The task of the Tribunal is the familiar one of reviewing the relevant decision, not the reasons for that decision. We must approach the making of that decision afresh.
26.The decision of the Information Commissioner was to grant Mr Thomas access to the seventeen text messages with the personal information redacted. It is now for us to determine what the correct or preferable decision is, be that by confirming or setting aside that decision and substituting another.
27.The Secretary seeks that the decision under review be set aside and that a decision refusing access be substituted. Mr Thomas seeks the confirmation of the Information Commissioner’s decision. It would, in theory, be possible for us to vary the Information Commissioner’s decision by permitting access to some but not all of the text messages. Neither party sought such variation. Nonetheless we have considered that alternative but find no attraction in it. The test messages represent a continuum of communication and, to be understood, need to be read and considered as such. They do not readily lend themselves to piecemeal disclosure.
Apprehended Bias Claim
28.Following the President’s direction as to the panel of members to constitute the Tribunal for the purposes of the hearing and forthwith after he was able to peruse the s 37 documents, the respective statements of facts, issues and contentions, copies of the text messages in question and the affidavit of BRIG Smith, Senior Member Nikolic drew to the attention of Logan J, as presiding member, particular details of his earlier career. In turn, Logan J directed the Tribunal’s District Registrar to write to the parties communicating those details and affording them an opportunity by a nominated date (22 February 2018) to make such submission, if any, as they may be advised as to Senior Nikolic’s membership of the Tribunal as constituted for the hearing. This was done.
29.The particular details concerning Senior Member Nikolic, conveyed to the parties by the District Registrar in accordance with the direction were as follows:
“Senior Member Nikolic served for approximately five years as a member of the Department of Defence’s Strategic Command Group from (2007 – 2011) under the leadership of then CDF (Sir Angus Houston) and Secretaries (Nick Warner / Ian Watt). In 2007-08 he served as Director-General Public Affairs, with regular and close association with the Defence Department’s senior leadership team, including now CDF Mark Binskin and VCDF Ray Griggs. As First Assistant Secretary of International Policy Division within the Defence Department, he ran the day-to-day aspects of Australia’s international relationships as they related to the Defence Department, again encompassing close association with ACM Binskin and VADM Ray Griggs on a range of strategic plans and projects. His past service has given him a very particular knowledge of the processes of command at the highest level within the Defence Department (including within the Australian Defence Force).
Senior Member Nikolic has had no previous involvement with the FOI application before the Tribunal.”
In the passage quoted, the abbreviation, “CDF” is a reference to the office of Chief of the Defence Force.
30.The Secretary raised no objection to Senior Member Nikolic’s membership of the panel. On Friday, 23 February 2018, Mr Thomas, by his solicitor, raised an objection. The foundation for the objection was Senior Member Nikolic’s prior membership of the Strategic Command Group within the Department of Defence and, more particularly, his once close working relationship, as disclosed, with ACM Binskin and VADM Griggs. It was put that, as these were the persons between whom the text messages were exchanged, an apprehension was created that Senior Member Nikolic might not bring an impartial and unprejudiced mind to the determination of the review. Later, in the course of oral submissions made on behalf of Mr Thomas at the hearing, the basis of the objection was amplified to submit that the prior close working relationship and an asserted prior social relationship might occasion personal embarrassment to Senior Member Nikolic in deciding whether the texts exchanged between these two officers ought to be disclosed, because of that working association. But the prior relationship disclosed was a working one, not a social one. Such social contact as there was by Senior Member Nikolic with ACM Binskin and VADM Griggs was an occasional adjunct to the then working relationship disclosed. They did not then otherwise socialise and do not now.
31.The objection was considered by each of us. We then collectively determined that the District Registrar ought to write to the parties in these terms:
“The Tribunal has considered the submissions made by the parties as to the composition of the Tribunal for the purposes of the hearing.
The Tribunal is very conscious of the proximity of the hearing date, the interest of the parties in a timely decision on the merits of the Secretary’s review application, the particular interest of the respondent in a decision on the merits being as proximate as possible to the dates of the communications in question, the compressed nature of the evidence and the arrangements for its reception from abroad, as well as the respondent’s objection to Senior Member Nikolic’s membership of the panel. Taking all these factors into account, the Tribunal proposes to allow each of the parties to make such further, submissions, if any, as they may be advised on 1 March in relation to the objection but to proceed to hear evidence and related submissions on the merits that day as well. The Tribunal will thereafter, but not necessarily on 1 March, give a decision and related reasons at least on the objection but also, depending on the conclusion reached on the objection, on the merits. The Tribunal wishes to make explicit that it does not consider that the adoption of this course ought in any way to be regarded as a waiver by the respondent of its objection, only as a means, potentially, of securing for the parties the earliest possible decision on the merits. The Tribunal is conscious that other procedural courses may be open but none which would yield a timely decision on the merits. Further, to reconstitute the Tribunal so as to include either Logan J or another Deputy President who is a judge would, given judicial commitments, very likely entail a delay of some months in the [allocation] of a fresh hearing date.”
The District Registrar notified the parties accordingly on Tuesday, 27 February 2018.
32.At the commencement of the hearing, we re-iterated that we did not consider that the participation of Mr Thomas in the hearing constituted a waiver of the objection which had been taken. This was accepted by the Secretary.
33.The Secretary, quite properly, drew our attention to Stollery v The Greyhound Racing Control Board (1972) 128 CLR 509 and to a risk that, were a reasonable apprehension of bias found to exist in respect of Senior Member Nikolic, his participation in the hearing might provide grounds for the disqualification of each member of the panel. In that case, the Greyhound Racing Control Board’s manager, who was also the accuser in the proceedings before the Board, was present in the room when the Board deliberated on its decision but did not participate in those deliberations. Even so, this association behind closed doors was considered sufficient to give rise to a reasonable apprehension of bias on the part of the Board. The Secretary submitted that this might necessitate a prior determination of the apprehended bias objection.
34.This possibility had not escaped our attention. Thus, for our part, we referred to Carruthers v Connolly [1998] 1 Qd R 339 (Carruthers v Connolly), in which, in respect of a Commission of Inquiry constituted by two commissioners, a conclusion that there existed an apprehension of bias in respect of one of them was regarded as carrying the consequence, given a lengthy association between the two in the course of the inquiry, that each was disqualified.
35.Mr Thomas indicated that he was content that the procedure earlier signified by the Tribunal be followed and on the footing that so doing was not to be regarded as constituting a waiver of his objection. Given that indication and, further, that the Secretary had not objected to Senior Member Nikolic’s membership of the panel, we decided to adhere to the procedure earlier notified to the parties. We proceeded to hear evidence and submissions and then reserved our decision both in respect of the objection and the substantive FOI issue.
36.A preliminary question is by whom an application for disqualification on the basis of apprehended bias on the part of one of a multi-member panel constituting the Tribunal ought to be determined? Neither the submissions of the parties nor our own researches have disclosed any prior Tribunal authority on this point.
37.In relation to the exercise of judicial power by a multi-member bench, the usual position is that, at least in the first instance, the judge in respect of whom objection is taken individually determines that objection. This was the course followed in the High Court when objection was initially taken to Callinan J sitting as a member of the Full Court in a particular case: Kartinyeri v Commonwealth of Australia (1998) 72 ALJR 1334 (Kartinyeri). Also at ultimate appellate level, this same course was adopted by the Supreme Court of Papua New Guinea in National Capital District Commission v Yama Security Services Ltd [2017] PGSC 7; SC1575 (Yama Security Services). The practice adopted at ultimate appellate level reflects a longstanding practice at intermediate appellate level: Rogers v Wentworth [1998] NSWCA 20 (Rogers v Wentworth) and Barton v Walker [1979] 2 NSWLR 740 at 749-750. Regard to these New South Wales cases also discloses that, in turn, this practice accords with the practice adopted by the United States Supreme Court. It was also opined in Rogers v Wentworth that, once the individual judge had ruled on the objection, the other members of the particular Full Court did not have any power to review the decision reached by that particular judge.
38.In Kartinyeri, after the initial disqualification application had been ruled on by Callinan J, there was a further application made, on the basis of further evidence, that his Honour disqualify himself. As the discussion in Yama Security Services of the later course of events in Kartinyeri discloses, this later application was never heard and determined but, notably, it was to be argued before the Full Court and Callinan J disqualified himself from sitting on the Full Court for that purpose. Though no final decision was reached, that would suggest that, at least at ultimate appellate level, the other members of the High Court were at least prepared to allow that circumstances could arise in which the other members of a Full Court might appropriately rule upon whether another member of the court may permissibly sit with them in a given case.
39.The practice and procedure attending applications for the disqualification of a judge exercising judicial power is more fully discussed but to no different effect by Dr M A Perry, Barrister (as her Honour then was) in “Disqualification of Judges – Practice and Procedure”, prepared in 2001 for the Australian Institute of Judicial Administration and, more recently, in a paper, “Disqualification of Judges for Bias”, delivered by Justice Sakar of the New South Wales Supreme Court in January 2018 at Oxford in England. Though we have derived assistance from these discussions, we do not find it necessary to explore in any greater depth than that already related the practice and procedure applicable to an exercise of judicial power when an objection is taken on bias grounds (apprehended or otherwise) to one (or some) members of a multi-member bench. For we are exercising not judicial but administrative or executive power and our remit so to do is wholly statutory.
40.Section 42 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) presently provides:
42. Resolving disagreements
(1)If the Tribunal is constituted for the purposes of a proceeding by 3 members, a disagreement between the members is to be settled according to the opinion of the majority of the members.
(2)If the Tribunal is constituted for the purposes of a proceeding by 2 members, a disagreement between the members is to be settled according to the opinion of the presiding member.
41.We must give primacy to the text of s 42 of the AAT Act. It is s 42(1) of the AAT Act which is presently applicable. Neither this subsection nor s 42(2) is expressed to apply only to the ultimate question for determination on a review application (although it undoubtedly does apply to that question). Rather, the section applies to any case of disagreement once the Tribunal has been constituted for the purposes of the hearing. The objection was taken after the President had determined that the three of us would constitute the Tribunal for the purposes of the hearing.
42.In these circumstances, while we consider that it would have been permissible for Senior Member Nikolic himself initially to determine the objection (by analogy with the practice in relation to an exercise of judicial power and pursuant to a s 33 procedural direction), s 42(1) would, for example, have permitted Logan J and Deputy President Hanger, if collectively of a different opinion, to determine that Senior Member Nikolic was disqualified, contrary to his own opinion. Indeed, given such an ability, it may have been open to a judge of the Federal Court judicially reviewing under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s 39B of the Judiciary Act 1903 (Cth) a decision by Senior Member Nikolic to withhold relief on the basis that the application was premature until the opinion of the majority of the Tribunal was known. Equally, s 42(1) of the AAT Act admits of each of the members constituting the Tribunal for the purposes of a hearing collectively to determine an objection.
43.In many cases, particularly when the lead time to a hearing is not as compressed as it necessarily was in the present case and where lengthy evidence is to be called (with all of the related expense to the parties) the appropriate procedure to adopt if an objection is taken would be to determine that objection in advance and as a separate issue. The procedural powers conferred on the Tribunal by s 33 of the AAT Act are broad and would permit the adoption of that course. Equally, that same breadth does admit of the procedure which we have adopted, especially when the objecting party assents to it. Of course that procedure is fraught with a risk of the disqualification of the whole panel of which Carruthers v Connolly is an example. So we also took into account in adopting the present course Mr Thomas’ prospects of success in respect of the objection.
44.We turn to consider questions of principle in relation to the present objection.
45.The present objection raises a question with respect to disqualification of Senior Member Nikolic on the basis of apprehended, not actual, bias. In Ebner v Official Trustee in Bankruptcy (Ebner)[4] the High Court held that there are two steps to the answering of such a question. The first requires the identification of what it is said might lead the person concerned (judge, juror or tribunal member) to decide a case other than on its legal and factual merits.[5] The second requires that there “must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”[6]
[4] (2000) 205 CLR 337.
[5] (2000) 205 CLR 337 at 345.
[6] Ibid.
46.As to the first step, we have already set out, by reference to the notification as sent by direction to the parties by the District Registrar, details as to the background of Senior Member Nikolic. There are some further matters which are matters of public record[7] in relation to that background knowledge as to the existence of which one might attribute to a fair minded observer.
[7]The more particular career detail is specified in Wikipedia:
47.The final rank in the Army held by Senior Member Nikolic was Brigadier. A Brigadier is sometimes termed a “One Star” officer (referable to the star insignia displayed in a non-operational setting on a vehicle in which a Brigadier is travelling).[8] In a Tri-Service or Joint Command setting, a Brigadier is junior to an ACM (a “Four Star” rank) and a VADM (a “Three Star” rank).[9] Senior Member Nikolic was last subject to formal, military subordination arising from the rank which he held in January 2011, when he ceased membership of the Regular Army. He was appointed as an acting First Assistant Secretary within the Department of Defence (in which appointment he was answerable to a civilian Deputy Secretary, not to the then Chief of the Defence Force or ACM Binskin or VADM Briggs in their respective then roles as a service chief) from 2008-2011, while still a serving military officer. He continued to serve as a First Assistant Secretary in a substantive role after ceasing to be a member of the Regular Army. His military and civilian appointments from 2007 until 2012 entailed membership of the Defence Department’s Strategic Command Group.
[8]We have relied on our collective service knowledge for the detail in the first three sentences and the references to “Star rank” in this paragraph but the same is readily available by internet based, open source research.
[9]Defence Act, s 21 and Schedule 1.
48.Also readily ascertainable from the public record, is that Senior Member Nikolic served as a member of the House of Representatives in the Australian Parliament from 2013 to 2016. Likewise ascertainable is that Senior Member Nikolic was appointed to the Tribunal as a Senior Member on 16 January 2017 and that his term of appointment expires on 16 January 2024.[10] The public record further discloses that he has been assigned to the Tribunal’s General, Freedom of Information, Security and Veterans’ Appeals Divisions.
[10]Administrative Appeals Tribunal, Table of statutory Appointments as at 12 February 2018:
49.The type of apprehended bias alleged in respect of Senior Member Nikolic is what is sometimes termed, “prior association bias”.
50.In Livesey v New South Wales Bar Association (1983) 151 CLR 288 (Livesey), the High Court stated the general principle applicable to cases where actual bias is not alleged thus:[11]
“[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. ... Although statements of the principle commonly speak of ‘suspicion of bias’, we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning.”
[11](1983) 151 CLR 288 at 293-294.
It was this preference for the description “reasonable apprehension” which was taken up and further expounded in Ebner.
51.In Re Polites; Ex parte Hoyts Corporation Pty Ltd (Re Polites),[12] a question arose as to whether a Deputy President of the then Australian Industrial Relations Commission (a predecessor of the industrial conciliation and arbitration commission presently known as the Fair Work Commission), Mr Deputy President Polities, was disqualified by prior professional association from further participation in a hearing before a Full Bench of that commission. Prior to his appointment to the commission, Mr Deputy President Polites had practised as a partner in a major solicitors’ firm, with particular responsibility for industrial relations law within that firm. In that capacity, he had tendered generic advice to Hoyts Corporation but the correctness of that advice was not at issue before the commission nor did that advice extend to the adoption of a course of conduct followed by Hoyts Corporation in relation to the industrial relations dispute before the commission. Mr Deputy President Polites decided that he was disqualified by virtue of prior association from continuing to sit as a member of the Full Bench dealing with the dispute. Hoyts Corporation then sought and obtained from the High Court a writ of mandamus commanding him to continue to sit.
[12] (1991) 173 CLR 78.
52.By s 10(2), the then Industrial Relations Act 1988 (Cth) (since repealed) materially provided:
“The Governor-General may only appoint a person as a Deputy President if:
(a)the person has been a Judge of a court created by the Parliament or a court of a State or Territory, or has been enrolled as a legal practitioner of the High Court, or the Supreme Court of a State of Territory, for at least 5 years;
(b)the person has had experience at a high level in industry or commerce or in the service of:
(i) a peak council or another association representing the interests of employers or employees; or
(ii) a government or an authority of a government; or
(c)the person has, at least 5 years previously, obtained a degree of a university or an educational qualification of a similar standard after studies in the field of law, economics or industrial relations, or some other field of study considered by the Governor-General to have substantial relevance to the duties of a Deputy President;
and, in the opinion of the Governor-General, the person is, because of skills and experience in the field of industrial relations, a suitable person to be appointed as a Deputy President.”
53.Referring to Livesey, Brennan, Gaudron and McHugh JJ observed in their joint judgement:
[The] test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal's powers exercised. Qualification for membership cannot disqualify a member from sitting.[13]
[Emphasis added]
[13] (1991) 173 CLR 78, at 86-87.
54.By way of further explanation of the point made in the sentence which we have emphasised, their Honours added:
Deputy Presidents who are appointed on account of their industrial background are not disqualified merely because persons with that background have a measure of knowledge or are likely to have a particular attitude to the exercise of the Commission's powers. To adopt the words of the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd., their background will not necessarily lead them “to act otherwise than judicially, so far as that word connotes a standard of conduct”, even though the background which carries experience and knowledge acquired extra-judicially “assuredly means that the subject-matter is such as profoundly to distinguish such a tribunal from the courts ...”[14]
[14] 1991) 173 CLR 78, at 87
55.Each of us has held commissioned rank in the Army as a General Service Officer, but only one of us has pursued a full time career in the Australian profession of arms as an officer in the Regular Army.[15] Of the three of us, the statutory basis of eligibility for the appointment of Logan J as a Deputy President was not his former military service but rather his holding the office of a judge of the Federal Court of Australia: s 7(1)(a), AAT Act. Likewise, in the case of Deputy President Hanger, it was not his former military service that formed the statutory basis for his eligibility for appointment but rather his enrolment as a legal practitioner for at least five years: s 7(1)(b).[16] The statutory eligibility basis for the appointment of Senior Member Nikolic is different. It is found in s 7(3)(b) of the AAT Act, which provides that a person must not be appointed as a Senior Member or Member unless the person, “(b) in the opinion of the Governor-General, has special knowledge or skills relevant to the duties of a senior member or member”.
[15]The service of Senior Member Nikolic culminated in his holding the rank of Brigadier in the Regular Army. The service of Logan J and Deputy President Hanger was in the Army Reserve with that of Logan J culminating in his holding the rank of Major in the Australian Intelligence Corps and that of Deputy President Hanger culminating in his holding the rank of Captain in the Royal Australian Infantry Corps. The Active List service of Logan J and Deputy President Hanger ceased decades ago.
[16]His admission as a barrister of the Supreme Court of Queensland in 1968, another matter of public record, fulfils this.
56.The similarity of statutory provision for specialist appointment as between the position considered in Re Polites and the present case is obvious. Eligibility for appointment aside, the Tribunal now comprises a number of Divisions, one of which is the Freedom of Information Division. As Deputy Presidents, Logan J and Deputy President Hanger may sit in any Division. A non-presidential member such as Senior Member Nikolic must be assigned to one or more Divisions.[17] The assignment of Senior Member Nikolic to the Freedom of Information Division was governed by s 17CA of the AAT Act, which provides:
[17] AAT Act, s 17C(1).
17CA Assignment to Freedom of Information Division
The Minister must not assign a member to the Freedom of Information Division unless the Minister is satisfied that the member:
(a)has training, knowledge or experience relating to the Freedom of Information Act 1982 ; or
(bhas other relevant knowledge or experience that will assist the member in considering matters relating to the operation of that Act.
Under the Administrative Arrangements approved by His Excellency the Governor-General from time to time for the administration of Commonwealth Acts by particular Ministers, the AAT Act has at all material times been administered by the Attorney-General.
57.Thus, Senior Member Nikolic’s eligibility to sit in the Tribunal’s Freedom of Information Division can be seen to have depended not only on the Governor-General’s satisfaction that he possessed the required special knowledge or skills, but also upon the satisfaction, separately reached, by the Attorney-General that he met either or each of the criteria specified in s 17CA. Once again, the holding of the very training, knowledge and experience which engenders satisfaction for assignment to the Freedom of Information Division cannot, in itself, form the basis for disqualification.
58.For completeness, reference ought also to be made to an observation made by Sir Anthony Mason in Re J.R.L.; Ex parte C.J.L. in relation to the test for apprehended bias which had come to be adopted in, inter alia, Livesey:
“It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.”[18]
[Emphasis added – footnote reference omitted]
[18] (1986) 161 CLR 342, at 352.
59.Of course, an apprehended bias claim is not to be decided in the abstract but by reference to the circumstances of the particular case.
60.In our opinion, a fair minded observer would, apart from the duality of qualification necessary for Senior Member Nikolic to sit in the Freedom of Information division, note the following:
(a)This year will mark the 7th anniversary of the cessation of Senior Member Nikolic’s membership of the Regular Army and the 10th anniversary of his taking up the First Assistant Secretary role mentioned;
(b)Some six years have passed since Senior Member Nikolic’s membership, as a senior, civilian, departmental officer of the Strategic Command Group within the Department of Defence ceased;
(c)Neither the Minister for Defence, nor the Secretary to the Department of Defence, nor the Chief of the Defence Force nor the Vice Chief of the Defence Force has any responsibility whatsoever for the administration of the Tribunal;
(d)The office of Senior Member is an independent, statutory office, enjoyable during good behaviour (and subject to other disqualifying events) for the term of that Senior Member’s appointment;[19]
(e)Before taking up the duties of the office, a Senior Member must make an oath or affirmation of impartiality in terms similar to the ancient judicial oath;[20]
(f)Senior Member Nikolic’s remuneration, including allowances, is fixed by yet another independent statutory tribunal under the Remuneration Tribunal Act 1973 (Cth);
(g)The close relationship which Senior Member Nikolic had with ACM Binskin and VADM Griggs was a working relationship;
(h)That relationship ceased, even in terms of formal military subordination some seven years ago and, in a practical sense of subordination, about a decade ago, given that, when First Assistant Secretary, Senior Member Nikolic’s direct supervisor was a civilian Deputy Secretary;
(i)Senior Member Nikolic had no involvement either as a serving military officer or as a civilian within the Department of Defence in any aspect of the preparation of the Letter or the exchange of texts;
(j)Senior Member Nikolic had no involvement at any stage in the consideration and determination either within the Department of Defence or by the Information Commissioner of Mr Thomas’ FOI application;
(k)Not only did neither ACM Binskin nor VADM Griggs nor any of the individual Service Chiefs give evidence in the proceedings but the credibility of views attributed to ACM Binskin and VADM Griggs by BRIG Smith was not challenged either by Mr Thomas, the Secretary or, for that matter, any member of the Tribunal.
[19] AAT Act, s 13.
[20] AAT Act, s 10B.
61.When these factors are considered in conjunction with the doubly specialist basis of Senior Member Nikolic’s eligibility to sit in the Freedom of Information Division, our opinion is that there could not be a reasonable apprehension that he would decide this review proceeding other than impartially or without prejudice. As with Mr Deputy President Polities in relation to the field of industrial relations, it is only to be expected, in a relatively modestly sized regular Defence Force such as that maintained by Australia, that close working relationships will develop between particular senior officers and particular senior subordinates. And the same applies in relation to inter-relationships at the civilian-military interface in the senior echelons of the Department of Defence. But, in the case of Senior Member Nikolic, these ceased many years ago. In our opinion, the circumstances of the present case afford a paradigm example of a case where no reasonable apprehension of bias arises in respect of Senior Member Nikolic. Indeed, we see this as a case where, if Senior Member Nikolic had chosen to disqualify himself in the circumstances related (or if, perhaps this had been decided collectively or by majority under s 42 of the AAT Act) and were the Secretary so disposed, the Secretary could have obtained a mandamus requiring Senior Member Nikolic to sit as a member of the panel. The notion that some embarrassment might attend his deciding that the texts ought to be disclosed depends, in the final analysis, on the very type of reasoning deprecated by Sir Anthony Mason in Re J.R.L.; Ex parte C.J.L.. Conspiracy theories which do not stand the scrutiny of a reasonable, fair minded observer of the prevailing circumstances provide no basis for the disqualification of a member of the Tribunal.
62.For these reasons, we over-rule the objection made by Mr Thomas in respect of Senior Member Nikolic. That represents the individual opinion of each of us and, as it transpires, our joint opinion.
The Public Interest Exemption
63.Subsection 11A(5) of the FOI Act provides:
(5)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.
Note 1:Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2:A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)).
Note 3:Section 11B deals with when it is contrary to the public interest to give a person access to the document.
64.Note 3 to s 11A of the FOI Act directs attention to s 11B of that Act in relation to when it is contrary to the public interest to give a person access to a particular document. The note is somewhat misleading in that, by s 11B(2), s 11B expressly provides that it does not limit s 11A(5). Section 11B is best regarded as a non-exhaustive catalogue of relevant and irrelevant considerations when addressing whether access would, on balance, be contrary to the public interest. Section 11B provides:
11B Public interest exemptions--factors
Scope
(1)This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3)Factors favouring access to the document in the public interest include whether access to the document would do any of the following:
(a)promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d)allow a person to access his or her own personal information.
Irrelevant factors
(4)The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest:
(a)access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government;
(b)access to the document could result in any person misinterpreting or misunderstanding the document;
(c)the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made;
(d)access to the document could result in confusion or unnecessary debate.
Guidelines
(5)In working out whether access to the document would, on balance, be contrary to the public interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A.
65.The Information Commissioner has issued guidelines (the Guidelines) under s 93A of the FOI Act for the purposes of s 11B(5). In reviewing the Information Commissioner’s decision, we consider that it is permissible for us to have regard to them. Given the way in which the parties presented their cases, we consider that the section dealing with “Inhibition of Frankness and Candour” is the most pertinent:
Inhibition of frankness and candour
6.79Previously, a common factor considered to weigh against disclosure of internal working documents was that disclosure would inhibit frank and candid advice from public servants in the future. Frankness and candour claims were given weight by decisions such as Re Howard and the Treasurer (discussed above at [6.78]) However, a finding that disclosure of deliberative material would pose a risk to the frankness and candour has been significantly affected by the 2010 reforms to the FOI Act, as demonstrated by a number of post reform AAT and Information Commissioner decisions.
6.80The AAT has said that there is an ‘essential balance that must be struck between making information held by government available to the public so that there can be increased public participation leading to better informed decision-making and increased scrutiny and review of the government’s activities and ensuring that government may function effectively and efficiently’.
6.81In Rovere and Secretary, Department of Education and Training [2015] AATA 462, the AAT said that in relation to pre-decisional communications, a frankness and candour claim cannot be a public interest factor against access. The Information Commissioner reads Rovere as authority that a confidentiality or candour claim carries no weight by itself but must be related to some particular practice, process, policy or program in government.
6.82The Information Commissioner considers that frankness and candour in relation to the s 47C conditional exemption may have some application as one public interest factor against disclosure in combination with other factors, and possibly as the sole factor where the public interest is clearly, heavily weighted against disclosure of a document of a minister, or a document that would affect the effective and efficient functioning of government.
6.83Agencies should start with the assumption that public servants are obliged by their position to provide robust and frank advice at all times and that obligation will not be diminished by transparency of government activities.
6.84Public servants are expected to operate within a framework that encourages open access to information and recognises Government information as a national resource to be managed for public purposes (ss 3(3) and (4)). In particular, the FOI Act recognises that Australia’s democracy is strengthened when the public is empowered to participate in Government processes and scrutinise Government activities (s 3(2)). In this setting, transparency of the work of public servants should be the accepted operating environment and fears about a lessening of frank and candid advice correspondingly diminished.
6.85While frankness and candour claims may still be contemplated when considering deliberative material and weighing the public interest, they should be approached cautiously and in accordance with ss 3 and 11B. Generally, the circumstances will be special and specific.
[Footnote references omitted]
66.The FOI Act must be construed and applied by reference to its present text, not by the nostalgic recollection of that Act’s earlier form or of decisions given in respect of that Act in an earlier form. The present text of the FOI Act materially incorporates in s 11A(5), in those cases to which it applies, provision for an evaluative balancing as to whether the affording of access would be contrary to the public interest.
67.As to the expression, “public interest” when used in a statute, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed in The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 at [42]:
It is well established that, when used in a statute, the expression “public interest” imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is “neither arbitrary nor completely unlimited” but is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”.
[Footnote references omitted]
As used in s 11A(5) of the FOI Act, wide though the expression “public interest” is, it is confined by more than just the subject matter, scope and purpose of the FOI Act. So much is made explicit by the catalogue in s 11B of factors favouring access and of irrelevant factors. In listing, in s 11B(3), factors favouring access, the Parliament has made explicit factors which might in any event have permissibly been regarded as relevant to take into account in a public interest evaluation, such is the width of that expression. What s 11B(3) has done is to convert the permissible into the mandatory in relation to considerations to take into account. Equally and again having regard to what is generally the width of the expression “public interest”, s 11B(4) has made factors which might otherwise have been regarded as permissible to take into account irrelevant considerations.
68.When one recalls that, in relation to public interest immunity claims at common law, factors such as the prevention of “ill-informed or captious public or political criticism … [of] … the inner workings of the government machine” (Conway v Rimmer [1968] AC 901 at 952 per Lord Reid) and the high level of the official communication (Sankey v Whitlam (1978) 142 CLR 1 at 57-58 per Stephen J, Aickin J agreeing) have been regarded as relevant in the determination of such claims, the significance of the exclusion as irrelevant of the factors listed in s 11B(4) of the FOI Act becomes apparent. It is not permissible, under the guise of considering whether access to the documents in question would, on balance, be contrary to the public interest, to approach that subject as if one were determining a public interest immunity claim. We have not approached this review as if it were.
69.The significance of the qualification “at a particular time” in s 11A(5) must also be appreciated. As used in s 11A(5), that qualification speaks to the present. The focus for whether access would, on balance, be contrary to the public interest is the present time, not the morning of 13 April 2016 or some intermediate time between then and now. In his submissions, the Secretary accepted that this was the effect of the qualification.
70.It is noteworthy that the catalogue of irrelevant considerations found in s 11B(4) of the FOI Act does not include inhibition of frankness and candour. Neither does s 3 of the FOI Act expressly state that the Parliament considers that the promotion of frankness and candour in intra-governmental communications is antithetical to the objects of the Act stated in that section. Given this and the otherwise breadth of the expression “public interest”, we respectfully agree with the opinion voiced by the Information Commissioner in the Guidelines (para 6.81) in relation to the Tribunal’s decision in Rovere and Secretary, Department of Education and Training [2015] AATA 462 (Rovere), that it should be regarded as standing for the proposition that a claim of inhibition of frankness and candour “carries no weight by itself but must be related to some particular practice, process, policy or program in government”. To treat such a claim otherwise would be an impermissible diminution of the remaining width of the expression “public interest”.
71.In public interest immunity claims at common law, inhibition of candour and frankness in intra-governmental communications as a factor telling against disclosure has had a mixed reception, witness, for example, the differing views on the subject in Sankey v Whitlam (1978) 142 CLR 1 as between Gibbs ACJ (at 40) and Stephen J (at 63). As we have already observed, s 11A(5) is not to be assimilated with the determination of a common law public interest immunity claim. To approach the significance of frankness and candour in the way promoted by the Information Commissioner in the Guidelines is to recognise that, in the abstract, it is a factor of little, if any, weight. The weight to afford it as a factor is not just inherently context specific but also specific to the documents in question and to the time when the access decision falls to be made. This approach is consistent with a more general observation, with which we respectfully agree, of Deputy President Forgie in Wood; Secretary, Department of Prime Minister and Cabinet and (Freedom of Information) [2015] AATA 945 at [69] in noting the absence in s 11B of the FOI Act of a list of factors telling against the affording of access (in contrast with the listing of factors favouring access) in particular: “Those factors are very dependent on the particular circumstances attending the way in which a document came into being and attending it subsequently.”
72.Further and at a more general level than just frankness and candour, the Guidelines confirm what an understanding of the width of the expression “public interest” would otherwise suggest, which is that prejudice to the management functions of an agency is a factor which may be taken into account in the determination of whether, on balance, the giving of access would be contrary to the public interest.[21]
[21] Guidelines, para 6.22(n).
73.We have considered the reference to Rovere by Bennett J when constituting the Tribunal in Dreyfus and Secretary, Attorney-General’s Department [2015] AATA 962 at [100]. In our view, her Honour in that reference did no more than to note the reasoning in that earlier decision of the Tribunal but did not express any view as to its correctness. That reference was in the context of a consideration of the reasoning of the Information Commissioner the correctness of which her Honour at [101] did not revisit.
74.In McKinnon v Secretary, Department of Treasury,[22] in their joint dissenting judgement, Gleeson CJ and Kirby J observed of the former s 36 and 58(5) of the FOI Act:
We have avoided reference to “balancing”. This is a concept that assumes prominence in a different context, in which courts are required to deal with claims of public interest immunity advanced in opposition to the production of documents, for example under subpoena, in civil or criminal litigation. There, it is the public interest in the administration of justice, and considerations of fairness to litigants, that may need to be weighed against aspects of the public interest put at risk by disclosure of documents. The image of the scales of justice is pervasive in legal thinking, and it is natural to talk of taking account of competing considerations in those terms. Under the FOI Act, however, the matter of disclosure or non-disclosure is not approached on the basis that there are empty scales in equilibrium, waiting for arguments to be put on one side or the other. There is a “general right of access to information ... limited only by exceptions and exemptions necessary for the protection of essential public interests [and other matters not presently material]” (s 3(1)(b)). That is the context in which a Minister makes a decision under s 36(3), and in which such a decision is reviewed under s 58(5). References to “balancing” create a danger of losing sight of that context.
[Footnote references omitted]
The present s 11A(5) of the FOI Act expressly adopts a balancing test. But it does not do so on the basis that there is a starting point of “empty scales in equilibrium”. By s 11B(3), certain factors telling in favour of the granting of access are already placed in the scales. In the present case, the effect of s 61 of the FOI Act is that it is for the Secretary to place in the scales other factors which, on balance, satisfy us that the granting of access would be contrary to the public interest. In contrast with many other review jurisdictions exercised by the Tribunal, there is in this case a formal onus. It is for the Secretary to satisfy us that the decision to afford access to the text messages is not justified, because, on balance, it is contrary to the public interest.
[22] (2006) 228 CLR 423, at [19].
The Command of the Australian Defence Force
75.In the present context, a helpful, if not essential, starting point in relation to whether the granting of access is, on balance, contrary to the public interest is the constitutional provision in relation to the ADF and what is entailed in its command.
76.Section 68 of The Constitution vests the command in chief of the naval and military forces of the Commonwealth in the Governor-General as the Queen’s representative. In accordance with Constitutional convention, that command in chief is exercised by the Governor General on the advice of the Federal Executive Council.[23] The command is a titular one but not without significance in that it constitutionally entrenches and thereby emphasises the subordination of each and every member of the ADF, no matter how senior their rank, to the civil power.[24] Section 68 anticipates that the Commonwealth will have naval and military forces but it does not itself establish them. Rather, s 51(vi) of the Constitution grants to the Commonwealth Parliament legislative power in respect of “the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth”. It was pursuant to this grant of legislative power that the naval and military forces of the Commonwealth were originally established.[25] The present provision for the existence of the ADF remains statutory.
[23] Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) p.713.
[24]The Rt Hon Sir Ninian Stephen, The Governor-General as Commander-in-Chief, Address on the Occasion of the Graduation of Course 27/83, Joint Services staff College, Canberra, 21 June 1983: Website of the Governor-General: Accessed 7 March 2018.
[25]Strictly, s 69 of the Constitution provided for the transfer to the Commonwealth, on a date fixed by proclamation after Federation, of the State departments responsible for naval and military defence but thereafter the authority for the several arms of what is now the ADF was statutory – Defence Act 1903 (Cth)(Army), Naval Defence Act 1911 (Cth) (Navy) and Air Force Act 1921 (Cth) (Air Force).
77.The ADF consists of three arms, each established by statute:
(a)the Royal Australian Navy;
(b)the Australian Army; and
(c)the Royal Australian Air Force.[26]
[26]Defence Act, s 17.
78.Each arm of the ADF has a “service chief”,[27] who is the senior officer within that arm.
[27]Defence Act, s 4, where the term “service chief” is defined to mean:
79.The Defence Act vests the “general control and administration” of the ADF in the “Minister”.[28] The Minister responsible (subject to presently immaterial exceptions) for the administration of the Defence Act is the Minister for Defence.[29]
[28]Defence Act, s 8(1).
[29]Department of Defence website: Accessed, 8 March 2018. The Minister for Defence is currently Senator the Honourable Marise Payne. Save for presently immaterial exceptions, the administration of the Defence Act is consigned to the Minister’s administration by the Administrative Arrangements Order made by the Governor-General on 1 September 2016: Department of Prime Minister and cabinet website, “Resource Centre”: Accessed, 8 March 2018. Other Ministers are appointed to the Department of Defence but it is the Minister for Defence who is responsible for the control of the ADF.
80.The Defence Act distinguishes between the command of the Defence Force and its administration.
81.The command of the Defence Force is consigned to the Chief of the Defence Force.[30] In that command, the Chief of the Defence Force is assisted by the Vice Chief of the Defence Force,[31] who is obliged to comply with any directions of the Chief of the Defence Force.[32] The Chief of the Defence is also tasked with advising the Minister “on matters relating to the command of the Defence Force”.[33]
[30]Defence Act, s 9(1).
[31]Defence Act, s 9(3).
[32]Defence Act, s 9(4).
[33]Defence Act, s 9(2).
82.The administration of the ADF is consigned to a diarchy comprising the Secretary and the Chief of the Defence Force.[34] The Defence Act contemplates that the Vice Chief of the Defence Force will assist with the administration of the Defence Force, as directed by the Chief of the Defence Force.[35]
[34]Defence Act, s 10(1).
[35]Defence Act, s 10(3).
83.The Defence Act does not define what falls within the command of the ADF. It does provide that the “administration of the Defence Force” does not include any matter:
(a) falling within the command of the Defence Force; or
(b) specified by the Minister.[36]
In ordinary English usage, “command” as used as a verb entails authority and control.[37] As used in the Defence Act, there is nothing to suggest it lacks these elements. Further, in the context of command of the ADF as a whole, the power of command necessarily entails command at all its levels – tactical, operational and, especially, strategic.
[36] Defence Act, s 10(2).
[37] Shorter Oxford Dictionary, p 461.
84.In respect of the command of the ADF, the Chief of the Defence Force is and, in respect of the administration of the ADF, that officer and the Secretary must comply with any directions of the Minister.[38]
[38] Defence Act, s 8(2).
85.The Australian provision for the subordination of all officers of the ADF to a representative of the Queen who acts in the command in chief of the ADF on the advice of the Federal Executive Council, the members of which are Ministers responsible to Parliament[39] and that the very existence of the ADF is dependent upon the authorisation of Parliament by legislation is not coincidental. These basal features in relation to a standing military force and its command and control reflect our British heritage.
[39] The Constitution, s 64.
86.In the United Kingdom, these features were the result of both revolution and evolution, of the experience, in the 17th and early 18th centuries, of, successively, Royalist absolutism, a dreadful civil war as between Royalists and those adherent to parliamentary supremacy, military dictatorship, and an eventual rapprochement. That rapprochement yielded the checks and balances and separation of legislative, executive and judicial powers in a constitutional monarchical system of government, known as “the Westminster system”, that has proved enduringly successful in the delivery of peace, order and good government in that country, in Australia and elsewhere. The subjection of the military to the civil power is another of the key features of that system.
87.In our view, an understanding of our derivative constitutional history from the United Kingdom is essential to the determination in this case of whether the affording of access to the text messages is, on balance, contrary to the public interest. So, too, in turn, is the inter-relationship between this history, its manifestations in our Constitution and the Defence Act and the evolution of provision for the command and control of the ADF.
88.Relevant aspects of this derivative history were detailed by reference to pertinent authority by Logan J in the Federal Court in Millar v Bornholt.[40] In that case, his Honour cited with approval[41] a passage from the authoritative work, “The Military Forces of the Crown” (1869), authored by Mr C M Clode, Barrister-at-law and legal advisor at the War Office which is also pertinent in the present case. The circumstances to which Mr Clode refers at the commencement of this passage were the flight of King James II from his kingdom and the offering of the Crown to his elder daughter, Princess Mary and her husband, Prince William of Orange in 1688 in the course of what has passed into history under the name, “The Glorious Revolution”. He gives details of what we have termed the eventual rapprochement and how and why it came about:
[40] (2009) 177 FCR 67.
[41] (2009) 177 FCR 67, at [17].
4.It was under these circumstances that the Statesman of that period had to consider the course they should adopt in regard to a Standing Army. To disband it altogether was impossible, for the late King was seeking aid from France to recover his lost throne, and war of some kind was inevitable. The people had experienced the evil of two systems, - of an Army of Plebeians exclusively under the Parliament, and of an Army of Cavaliers exclusively under the Crown; and therefore the problem which presented itself was, - how, without risking a divided allegiance, the Army could be placed equably between the Crown and Parliament, that the interest of the one should not so prevail as to disturb the influence of the other.
5.Now this object was to be attained – not by destroying, but by strengthening the existing departments or powers of the Crown, and, at the same time, by adding to the legitimate functions of Parliament. These ends were brought about, so far as need be referred to here, by three separate measures:-
1.By laying down certain fundamental principles in relation to the Army by the Bill of Rights and Act of Settlement.
2.By placing the pay of the Army under the control of Parliament, or more especially of the House of Commons; and
3.By granting to the Crown statutory powers for the Government and discipline of the Army.
6.Other statutory guarantees against the encroachments of the power of the Crown and of the Standing Army were added… but the greatest security was and still is to be found in the Constitutional doctrine developed at the Revolution, which made every Minister of the Crown personally responsible to Parliament for his own conduct, and for the acts of the Crown taken upon his advice. This agency of governing the kingdom by responsible ministers applies to the Army as well as to the civil Government, although for many years some few Politicians and many Soldiers were ready to contend that the Crown, without the intervention of any responsible minister, might use the Army for any purpose, and govern and command it in any matter that the will of the sovereign, for the time being, should direct. There is no good function, as will be seen, for any such theory. The Army, as part, or rather as the instrument of the State, must be under the ordinary rule of law, whether as applied to the prerogatives of the Crown or obedience to the civil magistrate.
89.The “Army of Plebeians” to which Mr Clode refers in this passage is the New Model Army, which, under Oliver Cromwell, had come to defeat the “Army of Cavaliers” under King Charles I, leading thereafter to the trial and execution of the King. This and the later experience of Great Britain was summarised thus by Logan J in Millar v Bornholt:
Regicide in respect of King Charles I and the republican ideal had, in the mid-seventeenth century, culminated not in parliamentary democracy but in the military dictatorship of Lord Protector Cromwell backed by the New Model Army. The memory of this and of the no lesser evils of the “Divine Right of Kings” was fresh in the minds of those who drew both the Bill of Rights 1689 (Eng) and the first Mutiny Act.[42]
[42] (2009) 177 FCR 67, at [17].
90.The Bill of Rights 1689 (Eng.), referred to in this passage “formed part of the Law of England the application of which in colonial Australia, subject to local legislative modification, was confirmed by s 24 of the Australian Courts Act 1828 (UK)”.[43] Probably the best known feature of the Bill of Rights is its provision for freedom of speech in Parliament.[44] For present purposes, it is another provision, Article 6, which is pertinent. That stated:
6.That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.
[43] Millar v Bornholt (2009) 177 FCR 67, at [19].
[44] Bill of Rights 1689 (Eng), Art. 9.
91.That there is, via the Defence Act, statutory provision for a “standing army”, the ADF, is an Australian manifestation of this derivative, historical, constitutional stipulation for the “consent of parliament”. In turn, our statutory provision, via the Defence Force Discipline Act 1982 (Cth), for the discipline of the ADF is a modern analogue of the provision for the discipline of the “standing army” via the first Mutiny Act.
92.BRIG Smith confirmed in evidence the continued ethos within the ADF of subordination to the civil power.
93.Provision for the appointment of an officer to command the whole of the ADF on a day to day basis is a relatively recent phenomenon. It may be traced to amendments[45] made to the Defence Act by the Defence Force Reorganisation Act 1975 (Cth), which created an office known as the Chief of Defence Force Staff (CDFS) the holder of which had the function of commanding the ADF and also of advising the Minister for Defence, in such manner as that Minister directed in relation to that command. Later, the name of the office of CDFS was changed to Chief of the Defence Force with the command and advisory functions being retained.
[45] Defence Force Reorganisation Act, s 7.
94.Hitherto, officers had been appointed during wartime to exercise particular higher command functions in respect of arms or elements of arms of the ADF but there had neither been an overall, tri-service commander nor express statutory provision for that overall command by an officer in peace or war.[46] Boards comprising a Minister responsible for a single service, a service chief of staff for that service and other senior officers and a departmental secretary had administered each arm of what is now the ADF. There had also come to be an over-arching Ministry of Defence responsible for overall defence policy and a military chairman of a Chiefs of Staff Committee to advise the Minister of Defence in conjunction with the Secretary to that department. But this military chairman had not had responsibility for the command of the ADF as a whole.
119.On the other hand, the newspaper, in the discharge of a vital public function, called the wisdom of the policies into question. Obviously enough, the ADF has the function of defending our country’s representative democracy. But so, too, in another way, when its function is understood, do the responsible activities of a free press, which includes the newspaper and Mr Thomas. Permitting access would advance the objects of the FOI Act, particularly “increasing scrutiny, discussion, comment and review of the Government's activities”.[53] It would also assist in informing debate on a matter of public importance.[54]
[53] FOI Act, s 3(2)(c).
[54] FOI Act, s 11B(3)(c).
120.In our view, this case also raises another matter of public importance. The evidence is that the Letter was not signed by the Minister for Defence. More particularly, the texts evidence that the exchange which occurred as a sequel to the way in which the Letter was published by the newspaper occurred on the initiative of ACM Binskin, who determined it was a command matter worthy of his direct involvement in collaboration with VADM Griggs and the service chiefs, rather than the Minister.
121.There was nothing unlawful about either the authorship of the Letter or the exchange of texts. Each can be regarded as falling within the function of command of the ADF. But when the historical foundations for the present subordination of the ADF to the civil power are understood, the desirability of Ministerial, rather than uniformed, involvement in matters of political or other public controversy becomes manifest. There is a correlative of these historical foundations, which is the undesirability of political officers arrogating the involvement of the ADF or any particular member of the ADF in matters of political or other public controversy or, by absence, yielding the field to such officers. Under our system of government, the ADF must be, and be seen to be, apolitical.
122.BRIG Smith confirmed in evidence the absence of any bright line in the higher command of the ADF as between matters for the Minister and matters for the Chief of the Defence Force and made reference to the role of the Chief of Staff in the interface between the Minister’s office and that of the Chief of the Defence Force. Hindsight can give clarity to the wisdom or otherwise of particular action or inaction that is not as readily discernible in prospect. We heard neither from the Minister nor the Chief of the Defence Force in evidence in this case. So, while the absence of Ministerial involvement on 13 April 2016 raises, for the reasons given above, a particular interrogative note in our minds, it would be quite unfair to each of them (and unnecessary) for us to make any adversely critical findings about that absence. That is not to say that the absence does not raise large questions which we regard as relevant in our public interest deliberation.
123.Some further recourse to history and to analogy is desirable to illustrate just how large a question is raised by the absence of Ministerial involvement noted.
124.Of the professions, only in respect of two in Australia,[55] the profession of arms and the Law, as represented by the judicial branch of the latter profession, is appointment to the highest echelons the result of a Vice Regal decision made on the advice of political officers.
[55]In England, a third profession, the clergy, must be included, because of the involvement of the Monarch, as Head of the Church of England, in the appointment on advice of the Archbishops and Bishops.
125.One effect of this is that the public expression of views which do not accord with those of the government of the day by those who aspire to these highest echelons can be fraught.
126.In relation to the profession of arms, the best Australian example of this, in our view, is offered by the experience of the then-Colonel John Lavarack CMG, DSO after his authorship of a scholarly article, published in 1933.[56] In that article, with relentless logic, carefully and politely expressed, Lavarack sought to expose the strategic flaw in the “Singapore strategy”, given the reduced strength of the Royal Navy in both an absolute and relative sense, in the event of the involvement of the United Kingdom in a major European war at the same time as there occurred aggression or war in the Far East. Under the “Singapore strategy”, principal fleet units of the Royal Navy would deploy to a major base at Singapore so as either to deter aggression or to prevent the invasion of the then British Dominions and colonies in the Far East, which included Australia. Lavarack argued that this deployment would be difficult if not impossible, in the event of a simultaneous European war and that this carried with it a need for greater expenditure in respect of the field army in Australia. Australian governments in the 1930’s favoured the “Singapore strategy”. One reason for the attraction to the strategy was that it justified, especially at a time of financial stringency imposed by the Great Depression and its aftermath, minimal expenditure on the field army. The soundness of Lavarack’s thesis would be emphatically but tragically vindicated in February 1942 by the Fall of Singapore, the surrender of Malaya Command (including the 8th Division of the 2nd AIF) to the Japanese and a related “invasion scare” in Australia. By then, Lavarack had also demonstrated his sound abilities in higher formation command in the Middle Eastern theatre of operations, especially in the campaign in Syria and the Lebanon in June/July 1941.[57] Though he was restored to the rank of Lieutenant General in the latter campaign, Lavarack never again commanded troops in the field. In respect of both his pre-war and Second World War career, it is now accepted that his advancement in the profession of arms was stultified as a result of the article which he wrote in 1933.[58]
[56]COL J D Lavarack CMG, DSO, Australian Staff Corps, The Defence of the British Empire, with Special Reference to the Far East and Australia, Army Quarterly, January 1933, p 207. Lavarack was responding to an article by Admiral Sir Herbert Richmond KCB, RN, An Outline of Imperial Defence, Army Quarterly, July 1932, p 260.
[57]R James, Australia's War with France - The Campaign in Syria and Lebanon, 1941, Big Sky Publishing, 2017.
[58]David Horner, 'Lavarack, Sir John Dudley (1885–1957)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, published first in hardcopy 2000, accessed online 11 March 2018.
127.Lavarack’s views were published not in the form of a letter to the editor of a newspaper but in the form of a scholarly article in the then leading international journal of the day for those serving in his profession in the then British Empire. We thought that BRIG Smith gave an understandably guarded answer as to what might be the subsequent career fate of an officer of the rank of Colonel who published in the Australian Defence Force Journal an article which critiqued the wisdom in the terms of the efficiency of the ADF of the policy of inclusion. The public record includes a recent example of an officer in the Army Reserve who offered such criticism via his Facebook and Twitter accounts, was instructed not to continue doing this, nonetheless did so and was dismissed from the Army on the basis that his retention was not in the interests of the ADF.[59] It is inferentially unlikely that if, for example, a Major General, even one of demonstrated operational command ability, were to question, in public, the policies, that he (or she) would progress to Chief of Army or beyond while a Government which had formulated such policies was in power. Of course, for constitutional historical reasons such serving senior officer participation in matters of public controversy would in any event be fraught but, even internally, further progression might plausibly have a chilling effect on senior officer contradictors if the support of the policies by the highest commanders is known. This rather underscores the importance of the role played by the newspaper in sounding an interrogative note about the policies and, in that regard, supports the giving of access to the text exchange.
[59]Chief of the Defence Force v Gaynor (2017) 246 FCR 298; special leave refused - Gaynor v Chief of the Defence Force [2017] HCATrans 162.
128.An understanding of history also instructs as to the grave national risks which can attend the selection for the highest command by the government of the day only of those officers who voice support for its policies. During the 1930’s, the government of France initially purged its Air Force of those senior officers who were not supporters of the-then government policy of favouring the development of a strategic bombing capability. Upon a change of Air Minister to one who favoured close support to the Army over strategic bombing, another purge was conducted, this time of those who had supported the strategic bombing policy. The result was a crisis in morale of the officer corps, deep suspicion in dealings between the higher command of the Air Force and the government and a neglect in the full development of a balanced force which included capabilities for the ground observation; of command, control, and communications systems; and of airfield facilities. In 1940, the French Air Force proved ineffective in the defence of that country and this was a factor in its utter defeat and loss of national independence in June 1940.[60] We doubt that this tendency to favour for appointment to higher command supporters of government policy over those who offer contrary views is unique either to that era or to France. Promotion on merit and promotion of government policy may pull in different directions. Once again, this rather emphasises the role of the Fourth Estate and the related interest in giving access which we have already mentioned.
[60]Lieutenant Colonel Faris R. Kirkland (USAF, Rtd), The French Air Force In 1940: Was It Defeated by the Luftwaffe or by Politics? Air University Review, October 1985, Online version available and accessed, 11 March 2018:
129.Advancement in the Law offers an example of a similar controversy in relation to the pursuit by governments of policies of inclusion and diversity in appointment to judicial office. In relation to this practice, the Rt Hon Sir Harry Gibbs GCMG, AC, KBE, after his retirement from the office of Chief Justice of Australia, once observed:
Although everyone would pay lip service to the notion that judges should be independent, it is not unnatural for some members of government, like most people, to prefer to hear what they want to hear rather than what they ought to hear. The independence of the judiciary depends as much on the sort of persons who are appointed to the bench, as on the safeguards which protect the holder of the office once it is attained. Similarly, nowadays everybody would pay lip service to the notion that appointments to the bench should be made on merit, which of course includes character and temperament as well as ability and experience. In practice, inappropriate motives do sometimes influence judicial selection in many if not most countries. … A more recent heresy is that the bench should be representative and that the sex of the aspirant or perhaps his or her ethnic origin should be a more important consideration than merit. The bench can never be representative, for there are many sections of society which it would be impossible to represent; what is more important, the bench should never be representative, for the duty of a judge is not to represent the views or values of any section of society but to do justice to all. I do not of course suggest by this litany that bad appointments make up a large proportion of the bench.[61]
[61]H T Gibbs, Oration Delivered at the Opening of the Supreme Court Library's Rare Books Room at the Supreme Court of Queensland on 11 February 2000.
Differing views have been expressed on this subject.[62] Once again, it is not for us to express any opinion about the relative merits of these views. The point for present purposes is that grave public controversy in relation to the potential impact of a policy of inclusion and diversity is not confined to the profession of arms. Recalling that underscores why large questions attend the issue in this case and is a factor favouring the giving of access.
[62]See, for example, S J Kenney, Gender and Justice: Why Women in the Judiciary Really Matter, Routledge, 2013.
130.That the subject is one of public controversy might be thought, having regard to constitutional historical considerations, to favour the position that the public expression of support for and defence of the policies is and was in April 2016 one for the Minister, not the most senior uniformed officers of the ADF. After all, this was not just a policy of the ADF conceived in isolation. It was and apparently remains the policy of the government of the day. Yet it is also possible to understand how, if there is no such Ministerial involvement, and the evidence shows there was none on 13 April 2016 either in the text exchange or the related decision to publish the Letter in full on the Defence Department website later that day, the Chief and Vice Chief of the Defence Force might nonetheless see it as necessary to act in the exercise of the function of command.
131.Other considerations intrude in relation to the active public engagement in a matter of public controversy by such senior officers. When any individual, Air Chief Marshall or Aircraftman/Aircraftwoman or any rank in between (or equivalent in another arm of the ADF) dons the uniform of an arm of the ADF, he or she is clothed not just with the authority of a force which can employ the most powerful weapons possessed by our society but also with such goodwill (which we take to be considerable) in respect of the ADF in wider Australian society as has been garnered since Federation by the countless actions in peace and war of all who have served beforehand. Once again and also related to the historical foundations mentioned, under our system of government, that goodwill is the property of all Australians, not any partisan, political group.
132.The FOI Act expressly makes the “high seniority” of an author of a document an irrelevant consideration in relation to the public interest balancing exercise we are required to undertake.[63] We take this to mean that the mere fact that an author is of high seniority affords no public interest reason to refuse access. It would though be an unlikely construction of this same provision, and one which we decline to adopt, that the functions being discharged by that author, given that author’s high seniority, are thereby rendered irrelevant. The functional context of the communication and present circumstances relating to the discharge of like functions remain highly relevant.
[63] FOI Act, s 11B(4)(c).
133.We have dwelt at some length on historical constitutional considerations, other lessons from history and analogy because of our view that very large questions are raised by this text exchange when it is viewed in context. But the ability of Mr Thomas and of the newspaper or others to explore these questions (and we include in this what he termed “defence culture”) would not, in our view, be much advanced by the affording of access to the text messages. Those questions are raised in any event by the existing evidence of the antecedent public controversy, the terms of the Letter and its authorship, the alterations which were made to it editorially and by the fact that the text exchange occurred without the Minister’s involvement.
134.We have already made particular observations about the text messages and findings about the inferences which we draw from them about their authors. Given the need to focus on the present, it is telling that both ACM Binskin and VADM Griggs remain in their appointments as Chief and Vice Chief of the ADF. The need for these two officers to communicate freely, candidly and spontaneously in circumstances of urgency as each would see it and the utility of their using text messages for this purpose is manifest and undiminished. It is difficult to identify a more important such need in the command of the ADF (save, of course, for a need for the Minister to give them such directions as thought necessary). There is a high and singular public interest in this high command related need.
135.Even, as must eventually occur, after these officers cease holding their appointments it would not necessarily follow that the granting of access would be a ready given. It is a matter of public record that many of the most highly classified, wartime intercommunications between high level commanders (and between them and their political masters) lose the need for restriction of access with the passage of time. The evidence disclosed that Lavarack’s 1933 authorship of the article about the Singapore strategy and its impact were not within BRIG Smith’s military professional knowledge. Knowledge that, within two years and while a public controversy was still current, access had been afforded to details of a high command text exchange as to a reaction to publicity about an aspect of that controversy is likely, we consider, to have a more enduring quality in memory in the ADF than just the terms of office of the current incumbents of the positions of Chief and Vice Chief of the Australian Defence Force. It might be expected at least to be firmly implanted in the minds of the immediate successors to the current incumbents.
136.That these text exchanges occurred in the course of the exercise of the high command of the ADF is also relevant in another way.
137.The exercise of the command of any military force, large, small or overall is, at its heart, very different to the management of civilian organisations. It is a mistake to assimilate the two. In civilian life, a subordinate employee who fails to comply with a management directive may see his or her employment contract terminated. In the ADF, there is no civil contract of employment.[64] Subject to the express provisions in and regulations made under the Defence Act, each officer serves pursuant to his or her commission issued by the Governor-General and each other member of the ADF serves in accordance with the terms of his or her enlistment. At common law, that service was determinable at will and for any reason or even no reason.[65] There remain echoes of this common law position in the regulatory provision for early termination of a member’s service in that it may be terminated on the basis of nothing more than satisfaction that “retention of the member's service is not in the interests of the Defence Force”.[66] Though amenable to judicial review, the element of professional value judgement in a decision on this basis would make it extremely difficult to challenge.[67] In the ADF, a subordinate who fails to obey the lawful command of a superior may become liable to termination[68] but also commits a service offence, the maximum punishment for which is imprisonment for two years.[69] If that order relates to preparation for or carrying out operations against the enemy, the maximum punishment for disobedience is imprisonment for 15 years.[70]
[64] Defence Act, s 27.
[65]Marks v. The Commonwealth (1964) 111 CLR 549, at 586 per Windeyer J; The Commonwealth v. Quince (1944) 68 CLR 227, at 234, 241-242
[66] Defence Regulation 2016 (Cth), reg 24(1)(c).
[67]Buck v Bavone (1976) 135 CLR 110 at 118-119 per Gibbs J; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [137] per Gummow J.
[68]Administratively, on the basis that his or her retention is not in the interests of the Defence Force: Defence Regulation 2016, s 24(1)(c) or by service disciplinary procedure by virtue of a sentence of dismissal from the Defence Force pursuant to the Defence Force Discipline Act.
[69] Defence Force Discipline Act, s 27(1).
[70] Defence Force Discipline Act, s 15F(1).
138.Looking at the text of the Letter, one could, with respect, be forgiven for thinking that this distinction between military command and civilian management was not understood by its authors. To refer to the environment in which members of the ADF may be called upon to discharge their duties as a “workplace” is odd when one recalls that such duties may be undertaken on the battlefield or in rigorous field exercises deliberately designed to mimic as closely as possible the demands of operational service. Euphemism ought not to disguise that war fighting is the core function of the ADF and that, in so doing, members of the ADF may be killed or wounded in action, not suffer workplace deaths or injuries. It is the efficient undertaking of that core function that military training is and must ever be principally directed. We understand, though that the Letter was written to a public audience at large and to defend policies which were said to be good practice in workplaces generally.
139.The point of our mentioning the different nature of military command is that it is these very same two officers who now as then must exercise that command, subject to general Ministerial control. Knowledge of history also instructs that, at the very highest level, the exercise of command can be a lonely, grave and difficult task.[71] In the exercise of that high command, it is impossible to over-emphasise the importance of encouraging a high commander to seek the advice of well-experienced and qualified senior subordinates and in those senior subordinates being encouraged to offer that advice frankly. That encouragement must extend over the whole range of subjects for the exercise of high command, controversial and delicate though those subjects may be. And one of those subjects was, and remains, media relations and the provision of public information about the role, reputation and values of the ADF, ACM Binskin was then, and remains, the commander with the highest command responsibilities and VADM Griggs is duty bound to assist him in the exercise of that command. It is axiomatic from the nature of the office of Vice Chief of the Defence Force that one of the functions of that office is to act as a sounding board for the Chief of the Defence Force.
[71]One only needs to reflect on the fact that the decision, after a postponement had already occurred, to order the launch of Operation OVERLORD, the landings in France on 6 June 1944, ultimately rested on one man General Dwight D Eisenhower, to understand this.
140.Of course it does not follow that access to each and every text communication between ACM Binskin and VADM Griggs must be refused. As with the present, each case must be considered on the merits, having regard to the documents in question, their context and to the presently prevailing circumstances. It is just that, in this case, and with these text messages, there is, in our view an overwhelming public interest in the refusal of access. The exercise of command by these two officers as it relates to media relations is not advanced by the affording of access. It is inhibited, perhaps terminally. And that, in turn, may have a chilling effect on their deliberations by text message or use of that medium over a range of other subjects where it may be moot as to whether or not access in the near future to them would be regarded as contrary to the public interest. It is not hard to see how abundance of caution might come to favour desisting from using such a medium in cases of doubt with all of the disadvantages which would attend that.
141.Whether the support for the policies voiced in the Letter by these senior officers is sagacity or sycophancy is something that only the verdict of history will expose; hopefully, if the latter, with less tragic consequences than was the verdict of history as to the sagacity of LTGEN Lavarack’s views when a Colonel. As we have stated, the affording of access would not, in our view, advance much the discharge of a vital public role performed by Mr Thomas and the newspaper (or others) in provoking and promoting informed public debate about the wisdom of the policies or in relation to other issues raised by this case (including what was termed “defence culture”). We are convinced though that it would have a detrimental, chilling effect on the exercise of high command of the ADF by the very persons who must exercise that high command. There is a very real distinction between of interest to the public (and the contents of the text messages may well have this quality) and the public interest. That is why, on balance, we consider that the affording of access would be contrary to the public interest.
142.For these reasons, the decision under review will be set aside. In lieu thereof, it will be ordered that access to the text messages be refused, because, on balance, access to them would be contrary to the public interest.
I certify that the 142 preceding paragraphs are a true copy of the reasons for the decision herein of The Honourable Justice J Logan, RFD, Deputy President, Deputy President R I Hanger AM, QC and Senior Member A A Nikolic AM CSC
Signed: ....................................................................
AssociateDate/s of Hearing 1 March 2018
Date of Decision 21 March 2018
Counsel for the Applicant Ms K Stern SC
Solicitor for the Applicant Australian Government Solicitor
Counsel for the Respondent Mr Cashen
Solicitor for the Respondent Macpherson Kelley
ANNEXURE
Response to reporting in The Australian on Defence capability and organisational culture
13 April 2016 | On the Record
** NOTE: The text in bold was omitted from the letter when it was published in The Australian on 13 April, 2016. The text highlighted in bold ITALICS was added by The Australian. **
Your editorial ‘Military no place for tokenism’ (The Australian, 8 April 2016) in our opinion demands a response.
In the Australian Defence Force we strive[s] to create an environment where all of our people can feel valued, included and empowered to bring innovative ideas to the table. Our goal is to foster a workplace that encourages great ideas, attracts the best talent and creates a sense of pride in all that we do.
You may find that last [sentence] paragraph familiar; that is because it is almost a direct copy of your own company’s statement on diversity. It’s a good statement and easily adaptable to many organisations including the Australian Defence Force.
Diversity is not about identity politics it is about improving the quality of the workplace, it’s the antidote to group think – gaining a wider range of perspectives to make better decisions and, in the military context, enhancing our capability, that often intangible concept that is manifest in the conduct of military operations be that in combat or non combat situations.
So it is somewhat disappointing that The Australian through a series of reports and editorials over the [past] last few months finds it necessary to undermine the efforts of the Australian Defence Force to bring about what has been universally agreed, is much needed cultural change. More disappointing is that your editorial appears to contradict The Australian newspaper’s own diversity statement.
Over the [past] last few years the Australian Defence Force has made significant change across a very wide range of cultural issues. The gut wrenching stories of former and serving members of the Australian Defence Force through the work of the Defence Abuse Response Task Force were born out of one simple thing – a culture of exclusion.
The only way to ensure that these types of events cannot systemically take hold again is to ensure that we have a culture of inclusion. A culture that ensures the needs of various groups within our workforce can be accommodated so they can perform at their best.
As Commanders it matters little to us whether [it’s] that is due to gender, race, religion or sexual orientation. What matters is that we have a cohesive team that is committed to the task at hand – delivering options to the Government of the day, every day.
Today our people are delivering on that across the globe, in combat and training missions in Iraq and Afghanistan, across the Middle East oceans and seas intercepting tonnes of illegal drugs and thousands of weapons, in United Nations and multi-national operations in Israel, the Sinai and South Sudan, in keeping our borders safe and working with our partners across Asia and helping to rebuild the lives of our Fijian neighbours.
[Apart from our missions around the world,] we are overhauling our equipment acquisition processes through some of the most fundamental reforms in the organisation’s history, and through the efforts of hundreds of Defence people and industry partners over the last five years we have more submarines at sea today than we have in over a decade.
These activities are not the signs of an organisation ‘redirecting resources to impotent causes’ these are signs of an organisation that is changing to ensure we are representative of the community we defend and focused on our mission to safeguard the security of this nation and its interests.
Yours sincerely,
MD Binskin, AC RJ Griggs, AO, CSC
Air Chief Marshal Vice Admiral, Royal Australian Navy
Chief of the Defence Force Vice Chief of the Defence Force
TW Barrett, AO, CSC RM Burr, DSC, AM, MVO
Vice Admiral, Royal Australian Navy Major General
Chief of Navy Acting Chief of Army
GN Davies, AO, CSC
Air Marshal
Chief of Air Force 11 April 2016
Issued by Ministerial and Executive Coordination and Communication, Department of Defence,
Canberra, ACT
Phone: 02 6127 1999 Fax: 02 6265 6946
This document was published at the following address, but the link is no longer valid: and-organisational-culture/
(a) the Chief of Navy; or
(b) the Chief of Army; or
(c) the Chief of Air Force.
See also, respectively, ss 18, 19 and 20 of the Defence Act. A service chief is appointed to that office by the Governor-General pursuant to s 7(1) of the Defence Regulation 2016 (Cth).
“For matters relating to operations, CDF and VCDF are supported by military staff working to Director General Military Strategic Affairs (DG MSA). This Military Strategic Affairs (MSA) Branch forms the operations element of Australian Defence Headquarters (ADHQ) and works closely with the Coordination and Public Affairs Division and the policy staff from International Policy Division.” [Emphasis added] The organisation of the Department of Defence currently includes a Ministerial and Executive Coordination and Communication Division, (which includes a Communications Branch) which has a role similar to the Division described in the passage quoted: Australian Government Directory: Defence: Ministerial and Executive Coordination and Communication Division and not confined to operational deployments: Accessed, 11 March 2018.
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