Wallace and Australian Federal Police

[2004] AATA 845

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 845

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2002/886

GENERAL ADMINISRATIVE  DIVISION		)
Re		STEPHEN JOHN WALLACE

Applicant

And AUSTRALIAN FEDERAL POLICE

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member 

Date13 August 2004 

PlaceMelbourne

Decision

1.    The decision under review will be varied to provide:

(i) That the documents or parts of documents in relation to which claims are shown in the Decision Schedule forming part of this decision, as having been upheld under s 22(1) of the Freedom of Information Act 1982 (“the Act”), are irrelevant to Mr Wallace’s request.

(ii)         That the documents or parts of documents which are “exempt documents” under the Act are those as to which exemptions are shown as upheld in the Decision Schedule forming part of this decision which summarises the Tribunal’s findings as to the application of ss 33(1)(b), 33A(1)(b), 37(1)(b), 37(2)(a), 37(2)(b), 40(1)(d) and 42(1) of the Act.

(iii)      Mr Wallace is entitled to have access to the documents or parts of documents which are relevant to his request, and as to which no exemption has been upheld.

DECISION SCHEDULE FORMING PART OF DECISION DELIVERED 13 AUGUST 2004

Doc	Page No.	Claimed grounds for refusal	Description of Document provided by AFP	Summary of Findings
2	7–9	s 37(1)(b)	Personality Profile of Mr Wallace	- s 37(1)(b) exemption not upheld NO EXEMPTION UPHELD
3	14, 16-17	s 22(1)(a)(ii)	Diary of Federal Agent	- s 22(1) deletions upheld DELETIONS UPHELD
	15	s 22(1)(a)(ii)	- s 22(1) deletion at top of page not upheld. -s 22(1) deletion for first line following words “Steve Wallace File” not upheld.  - s 22(1) deletion for last 2 ½ lines upheld DELETIONS PARTLY UPHELD
8	25	s 22(1)(a)(ii)	Diary of Federal Agent	- s 22(1) deletions upheld DELETIONS UPHELD
13	35, 38–47	s 22(1)(a)(ii) s 40(1)(d)	Diary of Federal Agent Maddigan	- s 22(1) deletion for 2 ½ lines in top entry on p42 not upheld. - all other s 22(1) deletions upheld. - s 40(1)(d) exemption p47 not upheld. DELETIONS UPHELD EXCEPT SPECIFIED LINES ON P42. EXEMPTION NOT UPHELD
14	48, 52-55, 57–64	s 22(1)(a)(ii), s 37(1)(b) s 40(1)(d)	Daybook of Federal Agent Maddigan	- s 22(1) deletions upheld, except first two lines of 27 June entry on p55. - s 37(1)(b) exemption not upheld for pp53-54. - s 40(1)(d) exemption not upheld for pp53-54. ALL DELETIONS UPHELD EXCEPT FOR TWO LINES ON P55. EXEMPTIONS CLAIMED FOR PP53 & 54 NOT UPHELD
19	452-458	s 37(1)(b)	AFP File 2000/0695 and File Action Sheets	- s 37(1)(b) exemptions not upheld for pp452, 453, 454, 458. - s 37(1)(b) exemptions upheld for name on top of p455, whole of p456, top line of p457. SOME EXEMPTIONS UPHELD – RELEASE DOCUMENT 19, PP452-454, 458 AND PARTS PP455, 457.
20	460	s 22(1)(a)(ii) s 37(1)(b)	E-mail concerning search warrants	- s 22(1) deletions not upheld. - s 37(1)(b) exemption upheld. EXEMPTION UPHELD
21	461	s 37(1)(b)	E-mail concerning conversation with informant	- s 37(1)(b) exemption upheld. EXEMPTION UPHELD
22	462	s 37(2)(a) s 42(1)	E-mail concerning first instance warrant still in existence	- s 37(2)(a) exemption not upheld. - s 42(1) exemption upheld for 3rd and 4th paragraphs and subparagraph (ii) of subparagraphs (i) – (v). EXEMPTION UPHELD FOR 3RD AND 4TH PARAS AND SUBPARA (ii) OF SUBPARAS (i) – (v)
23	463	s 33(1)(b) s 40(1)(d)	E-mail concerning forged passports	- s 33(1)(b) exemption upheld. - s 40(1)(d) exemption upheld. EXEMPTIONS UPHELD
24	464	s 22(1)(a)(ii) s 33(1)(b) s 37(1)(b)	E-mail concerning Operation Menorah	- s 22(1) refusal not upheld. - s 33(1)(b) exemption upheld. - s 37(1)(b) exemption not upheld. EXEMPTION UPHELD
25	465	Duplicate of 461	Duplicate of document 21, p461	See findings document 21
26	466	Duplicate of 464	Duplicate of document 24, p464	See findings document 24
27	467	s 22(1)(a)(ii)	Case Note Entry – information received in relation to suspected narcotic import from Bangkok	- s 22(1) refusal not upheld REFUSAL OF ACCESS NOT UPHELD
28	468	s 22(1)(a)(ii)	E-mail concerning information received from Bangkok	- s 22(1) refusal not upheld REFUSAL OF ACCESS NOT UPHELD
29	469–471	s 37(2)(b)	Facsimile from AFP to Optus	- s 37(2)(b) exemption not upheld for p469-470 - s 37(2)(b) exemption upheld for p471 EXEMPTION UPHELD FOR P471
31	474	s 22(1)(a)(ii)	Property of Holly Amanda Deane-Johns with attached photocopies of property	- s 22(1) refusal of access not upheld. REFUSAL OF ACCESS NOT UPHELD
508–511	s 22(1)(a) s 33(1)(b) s 40(1)(d)	- s 22(1) refusal of access not upheld. - s 33(1)(b) exemption not upheld. - s 40(1)(d) exemption not upheld. REFUSAL OF ACCESS NOT UPHELD NO EXEMPTIONS UPHELD
46	614–617	s 22(1)(a)(ii)	Passport information of Hugh H Cummings	- s 22(1) refusal not upheld. REFUSAL OF ACCESS NOT UPHELD
49	622	s 37(2)(b) s 40(1)(d)	E-mail concerning Austrac enquiry	- s 37(2)(b) exemption upheld. - s 40(1)(d) exemption not upheld. EXEMPTION UPHELD
75	674	s 22(1)(a)(ii)	E-mail concerning BIA Seizure	- s 22(1) refusal not upheld. REFUSAL OF ACCESS NOT UPHELD
78	678–679	s 37(2)(b) s 40(1)(d)	Facsimile for CCR check	- s 37(2)(b) not upheld for p678. - s 37(2)(b) upheld for p679. - s 40(1)(d) not upheld. EXEMPTION UPHELD FOR P679
82	683–695	s 37(2)(b) s 40(1)(d)	Facsimile for CCR check	- s 37(2)(b) not upheld. - s 40(1)(d) not upheld. NO EXEMPTIONS UPHELD
87	713	s 33(1)(b) s 37(2)(b)	AFP case note entry	- s 33(1)(b) exemption upheld. - s 37(2)(b) exemption not upheld. EXEMPTION UPHELD
89	719	s 22(1)(a)(ii)	Case note entry – search warrant	- s 22(1) refusal of access upheld. REFUSAL OF ACCESS UPHELD
90	720	s 33(1)(b) s 37(2)(b)	Case note entry – results further enquiries Bangkok	- s 33(1)(b) exemption upheld. - s 37(2)(b) exemption not upheld. EXEMPTION UPHELD
91	722	s 37(1)(b)	Information Reports	- s 37(1)(b) exemption upheld. EXEMPTION UPHELD
92	723–724	s 37(1)(b) s 40(1)(d)	Overseas Liaison Communication	- s 37(1)(b) exemption upheld. - s 40(1)(d) exemption upheld. EXEMPTIONS UPHELD
93	726–730	s 33A(1)(b) s 37(1)(b)	Intelligence Assessment	- s 33A(1)(b) exemption upheld. - s 37(1)(b) exemption not upheld. EXEMPTION UPHELD
115	822	Duplicate of document 78, p679	Facsimile cover sheet with attached sim card details	See findings document 78.
117	824–827	s 22(1)(a)(ii)	Diary entries	- s 22(1) deletions upheld. DELETIONS UPHELD
118	828–829	s 22(1)(a)(ii) s 33(1)(b) s 40(1)(d)	Letter to UK Drugs Liaison Officer British Embassy Bangkok	- s 22(1) refusal not upheld. - s 33(1)(b) exemption upheld. - s 40(1)(d) exemption upheld. EXEMPTIONS UPHELD
119	830	s 22(1)(a)(ii) s 33(1)(b) s 40(1)(d)	Letter to UK Drugs Liaison Officer British Embassy Bangkok	- s 22(1) refusal not upheld. - s 33(1)(b) exemption not upheld. - s 40(1)(d) exemption not upheld. REFUSAL OF ACCESS NOT UPHELD NO EXEMPTIONS UPHELD
120	831–832	s 22(1)(a)(ii) s 33(1)(b) s 40(1)(d)	Letter to OIC Pattaya	- s 22(1) refusal not upheld. - s 33(1)(b) exemption upheld. - s 40(1)(d) exemption upheld. EXEMPTIONS UPHELD
121	833–836	s 22(1)(a)(ii) s 33(1)(b) s 40(1)(d)	Letter to Police Colonel Utai PNSB Pattaya	- s 22(1) refusal not upheld. - s 33(1)(b) exemption upheld. - s 40(1)(d) exemption upheld. EXEMPTIONS UPHELD
122	837	s 33(1)(b)	Tape of Conversation	- s 33(1)(b) exemption upheld. EXEMPTION UPHELD
123	838	s 33(1)(b)	Letter to F/A Linahan regarding supporting information – Operation Menorah	- s 33(1)(b) exemption not upheld. EXEMPTION NOT UPHELD
124	839	s 33(1)(b) s 40(1)(d)	Letter to UK Drugs Liaison Officer British Embassy Bangkok	- s 33(1)(b) exemption not upheld. - s 40(1)(d) exemption not upheld. NO EXEMPTIONS UPHELD
126	841–842	s 33(1)(b) s 37(1)(b)	Tape of Conversation	- s 33(1)(b) exemption upheld. - s 37(1)(b) exemption not upheld. EXEMPTION UPHELD
127	843	s 37(1)(b)	Information Report	- s 37(1)(b) exemption upheld. EXEMPTION UPHELD

[sgd] Joan Dwyer

Senior Member

FREEDOM OF INFORMATION – request for access to documents relating to police investigations of applicant – refusals of access to documents and deletions of parts of documents claimed to be irrelevant to request under s 22(1)(a)(ii) of the Act – request included documents concerning investigations of people “deemed associated” with crimes for which applicant has been investigated “since or before my arrest” – construction of request

Exemptions claimed under s 33(1)(b) of the Act – information communicated in confidence by or on behalf of an authority of a foreign government – applicant entitled to know the overseas agency which communicated the information in confidence – evidence required as to agreement or understanding that information was communicated in confidence unless that is apparent from context of document

Exemptions claimed under s 33A(1)(b) of the Act – information communicated in confidence by or on behalf of an authority of a State to an authority of the Commonwealth – each page marked “protected” – content of document shows source of information

Exemptions claimed under s 37(1)(b) of the Act – disclosure which would or could reasonably be expected to disclose or enable a person to ascertain the existence or identity of a confidential source of information – meaning of “confidential source of information” – meaning of “would or could reasonably be expected to”

Exemptions claimed under s 37(2)(a) of the Act – disclosure which would or could reasonably be expected to prejudice the fair trial of a person or the impartial adjudication of a case – interests of both parties to a criminal trial – duties of prosecutor

Exemptions claimed under s 37(2)(b) of the Act – disclosure which would or could reasonably be expected to disclose lawful methods for preventing, detecting, investigating or dealing with breaches of the law – requirement that document not only identify but disclose a method and that the disclosure be likely to prejudice the effectiveness of methods or procedures

Exemptions claimed under s 40(1)(d) of the Act – disclosure having a substantial adverse effect on the proper and efficient conduct of operations of agency – meaning of “substantial adverse effect”

Exemptions claimed under s 42(1) of the Act – legal professional privilege – dominant purpose test

Decision under review varied.

Freedom of Information Act 1982, ss 3, 11, 14, 18(1), 22(1)(a), 33(1)(b), 33A(1)(b), 37(1)(b), 37(2)(a), 37(2)(b), 40(1)(d), 42(1), 59A(3), 61(1), 64(2).

Attorney-General v Cockroft (1986) 64 ALR 97 at 106
Department of Health v Jephcott (1985) 62 ALR 421
Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49
Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 551 at 564
Re Anderson and Australian Federal Police (1986) 11 ALD 355
Re Mickleburg and Australian Federal Police (1984) 6 ALN N176
Re Price and Director of Public Prosecutions (1997) 4 QAR 157

Re Rees and Australian Federal Police (1999) 57 ALD 686
Re Scholes and Australian Federal Police (1996) 44 ALD 299
Re Wallace and Director of Public Prosecutions [2003] AATA 119

INDEX

Paragraphs
FORMAL MATTERS			1-2
BACKGROUND FACTS			3-12
FRAMEWORK OF THE ACT			13-17
PRELIMINARY ISSUE – DOCUMENTS CLAIMED TO HAVE “BEEN INADVERTENTLY RELEASED”			18-19
THE CLAIMS MADE AND EXEMPTIONS RELIED ON BY THE AFP			20
CLAIMS/EXEMPTIONS
A	DELETION OF IRRELEVANT INFORMATION – s 22(1)(a)(ii)	21-47
B	CONFIDENTIAL INFORMATION FROM A FOREIGN GOVERNMENT – s 33(1)(b)	48-81
C	CONFIDENTIAL INFORMATION FROM STATE GOVERNMENTS – s 33A(1)(b)	82-85
D	CONFIDENTIAL SOURCES OF INFORMATION – s 37(1)(b)	86-104
E	PREJUDICE TO FAIR TRIAL – s 37(2)(a)	105-109
F	DISCLOSURE OF METHODS – s 37(2)(b)	110-122
G	DISCLOSURE HAVING SUBSTANTIAL ADVERSE EFFECT – s 40(1)(d)	123-142
H	LEGAL PROFESSIONAL PRIVILEGE – s 42(1)	143-148
CONCLUSION			149

REASONS FOR DECISION

13 August 2004  Mrs Joan Dwyer, Senior Member

FORMAL MATTERS

1.      This is an application under the Freedom of Information Act 1982 (“the Act”) for review of an internal review decision.  When the application was lodged, the relevant decision on internal review was made on 8 June 2002 (T3).  That decision affirmed an initial decision made on 3 April 2002 (T7), which released a number of documents to Mr Wallace and refused access to others.  The internal review decision (T3) released further documents, but refused access to others.  The respondent’s representative at the hearing on 3 April 2003 suggested that a further internal review decision be made prior to the resumed hearing which took place on 27 August 2003.  The further internal review decision was made on 4 June 2003 and by consent became the decision reviewed in this application.

2. Mr Wallace appeared in person. Mr MacPherson, a Legal Officer with the Australian Federal Police (“AFP”) appeared for the AFP at the hearing on 3 April 2003. Dr Collins of Counsel, appeared for the AFP at the resumed hearing on 27 August 2003. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), the exhibits received in evidence, and a folder of the documents claimed to be exempt under the Act. The production of those documents had been requested by the Tribunal pursuant to s 64(2) of the Act. Evidence was given by Mr Wallace, and by Miss Lucas and Federal Agent Maddigan for the AFP. Some of that evidence was given in confidence and the transcript of that evidence was marked “Transcript in Confidence”, in accordance with a confidentiality order made by the Tribunal on 29 August 2003.

BACKGROUND FACTS

3.      In 2000, Mr Wallace was arrested and convicted, on a plea of guilty, of one count of importation of heroin and one count of having in his possession a passport that had been falsified.  He is currently serving a prison sentence and is yet to decide whether to plead guilty to a further indictment relating to two outstanding matters.  Those matters arise out of an importation of heroin in respect of which it is alleged that Mr Wallace conspired with three others.  Those three others were convicted and have served prison sentences.  At the time they were charged Mr Wallace was not in Australia. 

4. By letter of 15 October 2001 (T23), Mr Wallace applied for the release of documents pursuant to the Act. The material parts of his request were as follows:

1. I request documents in to relation to an accusation I was involved in a Conspiracy to Import into Australia narcotic goods namely a Trafficable amount of Heroin contrary to section 233B(1)(cd) of the Customs Act, File reference WA 91/0352. I have three co-accused Vincenzo Micheal Danna, 27/1/1961, Dianne Lorraine Foster, 22/9/1965, and Holly Amanda Deane-Johns,04/5/1971 , whom all pleaded guilty sometime in 1991 with Crown appealing on sentence (Foster and Danna (1992) 59A CRIM R14) before Mr J Seaman [sic], The Court of Appeal, Westem Australia. So I request all recordings of video, original soundtracks, all file notes, diary logs and any working documents to do with this matter as well as the brief of evidence against me and my co-accused in its entirety.

2. I request access to documents in relation to importation prohibited substance section 233B(1)(b) Customs Act 1901, Possess False passport Section 9A(f)(i) Passport Act 1958 [sic]. File reference Proms No 647718. I was arrested at the Tullamarine Airport on Sunday 28 May 2000. I would like the transcript of the plea hearing and sentencing hearing for further reference. I request access to all File notes, Diary logs, all notes recorded at all times before, during or after my arrest and all information supplied within the A.F.P between states or overseas, to the Justice Department or any body or agency at any time during this period.

3.        I request access to documents in relation to any investigation completed or on going to do with anyone deemed associated to any crime I am or have been investigated for before or since my arrest on the 29/5/2000 being in Australia or overseas by the Australian Federal Police, or Consular Officials which I believe is the term used out of Australia.

4.        I request access to documents in relation to any investigation made against me in the past dating anywhere back to the early eighties, and my complete file held by the Australian Federal Police and any affiliated police agency in its entirety. As the Australian Federal Police hold what I believe is my complete file so I also wish that include anything held in Australia, or overseas (i.e. Australian embassy in Bangkok), and any relevant documentation to do with the Royal Thai Police, or any other agency whether state or commonwealth.

5.        I request access to documents in relation to three unofficial visits as the Australian Federal Police put it, and legally speaking uncounselled visits I had twice at Port Philip Prison and once at Fulham Prison by three officers in total. The most senior of these officers present on all occasions being a Mr Ian McClean and one other by [sic] went under the abbreviated name of Kara from a targeted operations squad whom I spoke to on the 03/5/2001 and on the 17/5/2001 at P.P.P and on the or around the 26/7/2001 at Fulham Correctional Facility, to do with as they put it "to see if I was happy as a federal prisoner". I want to know what my legal rights are as a prisoner in custody to do with these visits and request all documentation including any tapes, transcripts, or file notes taken by the Federal Police or the Prisons. I request documents to do with any illegal or legal viewing of either my incoming or outward mail any access to my phone privilege within the prison on the Arunta phone system which records all of my personal phone calls…

6.        I have supplied a list of names all being police officers with the federal police in 1991, I request access to documents to what there [sic] current status is within the federal police, meaning if their [sic] still active as police officers or not, if so their rank and position today compared to 1991 and where they are presently located. Whether any of the officers in question have been investigated for any ethical standard offences or internal investigation to do with any form of misconduct either allegations whether proven or not, any reprimands or disciplinary actions conducted and the outcome.

a. Cameron Ritter
b. Kenneth Pascoe
c. Peter Groves
d. Russell John Northcott
e. Edith Jan Kavanagh
f. Peter Adrian Findlay
g. Keith Joseph Taylor
h. Frances Mary Jolcliffe
i. Glen Behraman

5.      After conducting searches, the AFP identified 823 documents as falling within the ambit of Mr Wallace’s request.  On 4 April 2002, he was advised by the Team Leader, Freedom of Information (AFP) that she had decided (“the primary decision”):

(i)        To release certain documents in full;

(ii)To release some other documents, with deletion of material considered to be exempt from disclosure pursuant to ss 22(1)(a)(ii), 37(2)(b) and 41(1) of the Act; and

(iii)Not to release the remaining documents, because they were considered to be “exempt documents” pursuant to ss 22(1)(a)(ii), 37(2)(b) and 41(1) of the Act.

6.      On 20 April 2002, Mr Wallace requested an Internal Review of the primary decision.  This was completed by Mr Masters, of the Freedom of Information Team of the AFP.  He advised Mr Wallace on 8 June 2002 (T3) that he had affirmed the primary decision (“the internal review decision”).

7.      On 1 August 2002, Mr Wallace applied to the Tribunal for a review of the internal review decision.  The matter came on for hearing on 3 April 2003.  That hearing developed into a preliminary hearing, rather than a substantive hearing.  In discussion, I referred the parties to the decision in Scholes and Australian Federal Police (1996) 44 ALD.  I indicated to Mr MacPherson, in respect of the respondent’s claims for exemption under s 41(1) of the Act, that it did not appear that there had been compliance with s 59A(3) of the Act. I also suggested that it appeared other exemptions might be more appropriate than s 37(2)(b) of the Act, in respect of some documents claimed to be exempt under that provision. Mr Wallace requested a more detailed schedule of documents claimed to be exempt documents. After discussion, Mr MacPherson suggested that he request that a further reviewable decision be made. On 7 April 2003, I made directions setting out the substance of what had been discussed and agreed at that hearing.

8.      On 4 June 2003, a further decision was made by Ms Lucas, the Team Leader, Freedom of Information Team, AFP (“the reviewable decision”).  It comprises a full schedule of the documents held by the respondent which are considered to be covered by Mr Wallace’s FOI request.  The schedule shows Ms Lucas’ decision regarding each document, including the reasons why each document is claimed to be exempt.   The reviewable decision varied the primary decision by deciding:

(i)To release in full one further document, not released under the primary decision;

(ii)To release some documents not released under the primary decision, with deletion of material considered to be exempt from disclosure pursuant to ss 22(1)(a)(ii), 37(1)(b), 37(2)(a), 37(2)(b), 40(1)(d) and 42(1) of the Act; and

(iii)Not to release other documents on the ground that they were considered to be “exempt documents” pursuant to one or more of ss 22(1)(a)(ii), 33(1)(b), 33A(1)(b), 37(1)(b), 37(2)(a), 37(2)(b) and 40(1)(d) of the Act. A significant number of these documents had been released to Mr Wallace pursuant to the primary decision of 4 April 2002. Ms Lucas referred to these documents as having been “inadvertently released”.

(iv)Not to claim any exemptions under s 41(1) of the Act.

9.      The reviewable decision included documents 117 – 127 which had not been previously identified as coming within the ambit of Mr Wallace’s FOI request.  Exemptions were claimed in respect of all of those documents. 

10.     During the hearing of this matter, further documents were released to Mr Wallace.  Documents 44 and 88 were released in full.  After the hearing, in response to a letter from the Tribunal dated 1 July 2004 (copy to Mr Wallace), the solicitor for the AFP advised, by letter dated 19 July 2004, that it no longer relied on exemptions claimed as to the sender or addressee of documents, such as documents 118 – 121 and 122 – 124, where that information had been set out in the schedule forming part of the decision of Miss Lucas (R7).  The respondent also agreed to disclose the identity of the Royal Thai Police in document 23.

11.     In my direction of 7 April 2003, setting out the substance of what had been discussed and agreed upon at the hearing on 3 April 2003, I noted at paragraph 6 that some of the documents, as to which an exemption was claimed, could be released to Mr Wallace with deletions as he did not require personal information as to the names of individuals such as customs officers, staff of Thai Airways or travel consultants who made statements as to matters which arose in the performance of their duties.  Documents 14 (p56), 19 (p451) and 33 – 42 were subsequently released with agreed deletions of personal information, and are not considered further in these reasons.

12.     At the hearing, the AFP sought to maintain its decision that the remaining documents are exempt or partially exempt.  In respect of some documents, Dr Collins relied on grounds different from those specified in the decision of Ms Lucas.  Those grounds were italicised in the Amended Schedule of Disputed Documents produced by the respondent at the commencement of the hearing on 27 August 2003.

FRAMEWORK OF THE ACT

13. Before looking at the sections relied on as exempting certain documents from release under the Act, it is appropriate to refer to s 3 of the Act. Section 3(1) expressly states that the object of the Act is to make information available to the public and that discretions are to be exercised in such a way as to facilitate and promote the disclosure of information. Section 3 of the Act provides:

3 (1) The object of the Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by :

(a)making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b)creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and

(c)creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

(2)   It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

14. There are other relevant general sections of the Act. Section 11 provides:

11 (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a)    a document of an agency, other than an exempt document; or

(b)    an official document of a Minister, other than an exempt document.

(2) Subject to this Act, a person's right of access is not affected by:

(a)    any reasons the person gives for seeking access; or

(b)    the agency's or Minister's belief as to what are his or her reasons for seeking access.

15. Section 14 provides for the giving of information to the public by Ministers and agencies, even outside the scope of the Act. It reads:

14       Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.

However, that discretion cannot be exercised by this Tribunal. Section 18 of the Act provides:

18(1) Subject to this Act, where:

(a) a request is made in accordance with the requirements of subsection 15(2) by a person to an agency or Minister for access to a document of the agency or an official document of the Minister; and

(b) any charge that, under the regulations, is required to be paid before access is granted has been paid;

the person shall be given access to the document in accordance with this Act.

(2)       An agency or Minister is not required by this Act to give access to a document at a time when the document is an exempt document.

The Tribunal does not have power to decide that access be given to an exempt document.

16. Section 61(1) of the Act deals with onus of proof. It provides:

61. (1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.

17. The desirability of giving wide access to documents is demonstrated by s 22 of the Act, which provides that where exempt information can be deleted, documents are to be released with deletions. It reads:

22(1)    Where:

(a)an agency or Minister decides:

(i)not to grant a request for access to a document on the ground that it is an exempt document; or

(ii)that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b)it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(i)would not be an exempt document; and

(ii)would not disclose such information; and

(c)it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

PRELIMINARY ISSUE – DOCUMENTS CLAIMED TO HAVE BEEN “INADVERTENTLY RELEASED”

18.     Miss Lucas, in her reviewable decision, claimed exemptions for a number of documents which had been released to Mr Wallace in the initial decision of 3 April 2002 (T7).  Miss Lucas referred to those documents as having been “inadvertently released to applicant on 3.04.02”.  The documents were released as a result of a decision of Ms Bishop, who was at that time the Team Leader, Freedom of Information, AFP, the position which Miss Lucas held at the time she made her decision of 4 June 2003. 

19.     There is no evidence that Ms Bishop released the documents “inadvertently”. It appears from her decision of 4 April 2002 that Federal Agent Bishop decided that those documents were not documents for which the AFP should claim an exemption. Accordingly, she released them. That was a decision made under the Act. Dr Collins, in his opening, conceded that, as those documents were released pursuant to the Act, they were not “inadvertently released”, but were released in accordance with a decision made under the Act. They are not the subject of this application and will not be further considered in these reasons.

THE CLAIMS MADE AND EXEMPTIONS RELIED ON BY THE AFP

20. The exemptions relied on by the AFP are ss 33(1)(b), 33A(1)(b), 37(1)(b), 37(2)(a), 37(2)(b), 40(1)(d) and 42(1) of the Act. In respect of a number of documents referred to in the Decision Schedule (R7), the AFP has also claimed that they are either wholly or partly irrelevant to Mr Wallace’s request. Those claims are considered first in these reasons.

(A) DELETION OF IRRELEVANT INFORMATION: s 22(1)(a)(ii)

21. Section 22(1) of the Act provides:

22.  (1)     Where:

(a) an agency or Minister decides:

(i) not to grant a request for access to a document on the ground that it is an exempt document; or
(ii)that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(i) would not be an exempt document; and
(ii)would not disclose such information; and

(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy

22. Section 22(1)(a)(ii) has been relied on by the respondent for 3 different categories of documents or parts of documents:

(i) For matters relevant to the AFP member who wrote the document and not to any investigation, for example records of time-off or attendance at courses. I will uphold all those claimed s 22(1) deletions and refusals of access.

(ii)       For material which the AFP claims relates to investigations totally unrelated to Mr Wallace or anybody associated with him.  Where I am satisfied that the material is as claimed, those claimed deletions and refusals of access will also be upheld.

(iii)      In relation to documents or entries which relate to people who appear to be in some way associated with Mr Wallace, or with his known associates, where the AFP says the document or entry is not covered by Mr Wallace’s request.  Those claimed refusals of access require careful consideration of the terms of Mr Wallace’s request.

23.     It is necessary to scrutinise each of the documents in category (iii) above, to consider whether it falls within Mr Wallace’s request, the relevant paragraph of which is paragraph 3, which, as set out earlier, provides:

3.        I request access to documents in relation to any investigation completed or on going to do with anyone deemed associated to any crime I am or have been investigated for before or since my arrest on the 29/5/2000 being in Australia or overseas by the Australian Federal Police, or Consular Officials which I believe is the term used out of Australia.

24.     Dr Collins submitted (confidential transcript, p86) that paragraph 3 of Mr Wallace’s request should be narrowly construed.  Dr Collins submitted that the request did not cover documents in relation to investigations to do with people who may have acted together with Mr Wallace in criminal activities, unless he was charged or investigated in relation to those activities.  I accept that submission, but in my opinion the terms of paragraph 3 of the request must be broadly construed.  Investigations into people “deemed associated” with drug importations for which Mr Wallace has been charged or investigated are relevant to his request.  Dr Collins submitted that documents that post-date Mr Wallace’s arrest, and which relate solely to investigations into other people do not fall within paragraph 3 of Mr Wallace’s request, even if the AFP has information that those people were associated with crimes for which Mr Wallace has been investigated.  That submission seems to overlook the fact that Mr Wallace’s request specifically covered investigations “before or subsequent to my arrest”.  I regard the words “deemed associated to any crime I am or have been investigated for” as requiring a wide interpretation. 

25.     Mr Wallace has requested documents relating to investigations to do with people who the AFP considers are “deemed associated” with crimes for which Mr Wallace has been investigated.  That association could be that the AFP has information that the person shared in the planning of the crime, or was intended to share in the profits of the crime, or that the person was investigated for another crime believed to be connected with crimes Mr Wallace committed, such as another importation by the same syndicate. 

26. I do not accept that s 22(1) deletions or refusals of access are appropriate in respect of investigations of people who, on the AFP’s information, are “deemed associated” with crimes for which Mr Wallace is being or has been investigated, even if the investigations post-date Mr Wallace’s arrest and conviction.  Other exemptions may be appropriate in respect of documents referring to investigations into those people, but such documents are not irrelevant to Mr Wallace’s request.

The application of s 22(1)(a)(ii)

27. The following documents have been claimed to be irrelevant under s 22(1)(a)(ii). Some have not been previously been released to Mr Wallace and others have been released with deletions:

Claimed Irrelevant: 3, 8, 13 (pp 35 & 38-47), 14 (pp 48, 52-64), 20, 24, 27, 28, 31 (p 474), 46, 75, 89, 117, 118, 119, 120, 121.

[Other exemptions are also claimed for documents 13, 14 (p 53), 20, 24, 31, 118, 119, 120, 121.]

Document 3

28.     This document consists of pages from the diary of a Federal Agent.  The schedule which forms Miss Lucas’ decision of 4 June 2003 (R7) (“the decision schedule”) describes the documents as coming from the diary of Federal Agent McLean.  Unless there are two Federal Agents with the name McLean (perhaps with the initials D and S, as suggested by the documents), that would seem to be a mistake, in that the second entry on p14 refers to the author attending to duties with Federal Agent S McLean.  Some entries which relate to Mr Wallace have already been released. 

29.     There are some words which have been blacked out on pp 14 – 17 so that the Tribunal cannot read them.  Dr Collins said that enquiries had been made of Federal Agent McLean to seek clean copies (trans, p65).  He believed they had been obtained but had since been mislaid.  The Tribunal did not have them.  I have considered requiring that further enquiries be made to locate clean copies of those pages, particularly as the pages may not come from the diary of Federal Agent McLean.  However, I have decided that is not necessary, as the words surrounding the blacked out words make it clear that the entries in which they appear are irrelevant to Mr Wallace’s request. 

30. The entries, including the blacked out words, for which deletions are claimed on p14 do not relate to Mr Wallace and are not covered by the terms of his request. I uphold the claimed s 22(1) deletions on p14. I do not uphold the claimed deletion at the top of p15, as the words deleted there appear without claimed deletion in the bottom half of that page, immediately before the words “Steve Wallace file”.  That would seem to indicate that they are relevant to Mr Wallace’s request.  Nor do I uphold the claimed deletion for the first line deleted in the bottom half of p15, starting after the words “Steve Wallace file”.   The deletion claimed for the 2 ½ lines in the lower half of p15 is upheld, even though it contains two blacked-out words.  One is in the “date/time” column.  The other would appear to be a name of another person or investigation unrelated to Mr Wallace’s request.   I uphold all the deletions claimed on pp 16 and 17, even though I cannot read the blacked out words.  The words which can be read surrounding those words satisfy me that the entries for which deletions have been claimed are irrelevant to Mr Wallace’s request. 

Document 8

31. Document 8 is two pages from the diary of a Federal Agent. Again, a s 22(1)(a)(ii) deletion is claimed for parts of that document. One entry which relates to Mr Wallace has been released. The entries for which deletions are claimed do not relate to Mr Wallace. There are words blacked out which cannot be read, but, from the content of the other words, I am satisfied that the entries are not relevant to Mr Wallace’s request. The deletions claimed for document 8 are upheld.

Document 13

32. Document 13 is a collection of pages from the diary of Federal Agent Maddigan. All the deletions are quite legible on the copies provided to me. I find, from their content, that all the deletions on p 35 and p38-47 are irrelevant to Mr Wallace’s FOI request, except for 2 ½ lines at the top of p 42. All the other entries are in categories (i) and (ii) of the categories described in paragraph 22 of these reasons. All the s 22(1) deletions are upheld, except for the 2 ½ lines in the top entry on p 42. Those claimed 2 ½ lines are to be released to Mr Wallace. There is also a s 40(1)(d) exemption claimed for the deletion on p47. That is dealt with and not upheld in paragraph 129 of these reasons.

Document 14

33. Document 14 is a collection of pages from the day-book of Federal Agent Maddigan. The s 22(1) deletions claimed on pp 48, 52, 53, 57, 58, 59, 60, 61, 63 and 64 are irrelevant to Mr Wallace’s request. Therefore, those claimed s 22(1) deletions are upheld. Page 54 is a duplicate of p53, and it is to be treated in the same way as p53. On p 55, the deletions claimed for the dates 24, 25 and 26 June 2000 are irrelevant to Mr Wallace’s request. Those claims are upheld. I find that the first two lines of the entry for 27 June 2000 are relevant to Mr Wallace’s request. I find that those lines relate to an investigation to do with a person “deemed associated with” crimes for which Mr Wallace has been investigated. The claimed deletion for the 27 June entry is upheld except in respect of the first two lines of that entry. There are also a ss 37(1)(b) and s 40(1)(d) exemptions claimed in respect of the lower part of p53. They are not upheld, and are discussed at paragraphs 93 and 130 of these reasons.

Document 20

34.     This document is described in the decision schedule (R7) as an E-mail concerning search warrants.  It concerns other matters too.  I do not find that the document is irrelevant to Mr Wallace’s request.  It does relate to an investigation about people at least one of whom is “deemed associated” in some way with crimes for which Mr Wallace has been investigated. The claimed s 22(1) deletion is not upheld for document 20. However, there is also a s 37(1)(b) exemption claimed, which is upheld. It is dealt with in paragraph 96 of these reasons.

Document 24

35.     Document 24 is described in the decision schedule (R7) as “E-mail concerning Operation Menorah”. No claim under s22(1) was made for document 24 in Miss Lucas’ decision, but it is claimed to be irrelevant to Mr Wallace’s request in the amended Schedule of Disputed Documents provided by the respondent at the hearing. The s 22(1) claim that the E-mail is irrelevant to Mr Wallace’s request is not upheld. The document relates to an investigation into people “deemed associated” with the conspiracy to import heroin charges which Mr Wallace faces. There are exemptions claimed for the document under ss 33(1)(b) and 37(1)(b). The s 33(1) exemption is upheld at paragraph 66, and the s 37(1)(b) claim is not upheld at paragraph 98, of these reasons.

Documents 27 and 28

36. The only claimed reason for refusing access to documents 27 and 28 is under s 22(1), on the ground that they are irrelevant to Mr Wallace’s request. They are described in Miss Lucas’ decision schedule as case note entries concerning suspected narcotic import from Bangkok. They are later in date than the pending charges against Mr Wallace, but they do relate to investigations into two people deemed associated (see paragraph 3, doc 28, p468) with crimes for which Mr Wallace has been investigated. His request did not have a time limit. He specifically asked for documents relating to “any investigation … before or since my arrest”. The claims under s 22(1) are not upheld.

Document 31

37. Document 31, p474, is identified in the decision schedule (R7) as an inventory of property of Holly Amanda Deane-Johns, with whom it is alleged Mr Wallace conspired to import heroin, in respect of the charges he faces. Clearly that material falls within paragraph 3 of Mr Wallace’s request. No s 22(1) deletion is upheld for that page. There are no other claimed exemptions for p474. I will decide that it be released in full.

38.     Pages 508 – 511 relate to an investigation into someone, who has not been charged in respect of the crimes for which Mr Wallace was investigated, but who I find is “deemed associated” with those offences. The s 22(1) refusal of access is not upheld for those pages. Nor are the ss 33(1)(b) and 40(1)(d) claimed exemptions upheld (see paragraphs 67 and 132 of these reasons).

Document 46

39.     Document 46 is passport information concerning an investigation into a person who I find, on the basis of confidential evidence (confidential transcript, pp 84-85 and 120), is covered by the terms of Mr Wallace’s request, as a person “deemed associated” with a crime for which Mr Wallace has been investigated. The claimed s 22(1) refusals of access in respect of pages 614-617 of document 46 are therefore not upheld. No exemption is claimed in respect of document 46, even though it contains personal information about a person other than Mr Wallace. As the s 22(1) refusal of access is not upheld, I will decide that document 46 is to be released.

Document 75

40. Document 75 is information as to the sentence imposed on a person deemed associated with crimes for which Mr Wallace has been investigated. It relates to a completed investigation to do with that person. The claimed s 22(1) refusal of access is not upheld. As there are no exemptions claimed in respect of document 75, I will decide that it is to be released.

Document 89

41. Document 89 is described in the decision schedule (R7) as a case note entry regarding a search warrant. A s 22(1) deletion is claimed on the ground that it is irrelevant to Mr Wallace’s request. The document relates to an investigation into people with some association with Mr Wallace, or with people with whom he has been associated. However, there is no evidence that the people are “deemed associated” with a crime for which Mr Wallace has been investigated. It is not covered by the terms of Mr Wallace’s request. The s 22(1) refusal of access is upheld.

Document 117

42. Document 117 is described as diary entries of Federal Agent Madigan. There are deletions on pp 824, 825, 826 and 827. They are either about matters personal to Federal Agent Maddigan or about investigations unrelated to Mr Wallace. They are irrelevant to Mr Wallace’s request. The claimed s 22(1) deletions are upheld.

Documents 118, 119, 120 and 121

43. Documents 118, 119, 120 and 121 are from the files held at the AFP liaison office in Bangkok. Section 22(1) deletions have been claimed for them all. However, each of them is covered by Mr Wallace’s request.

Document 118

44. This is a letter from the AFP Liaison Officer in Bangkok to the UK Drugs Liaison Officer in Bangkok. The first paragraph on p829 indicates that it relates to an investigation into someone associated with one of the crimes of which Mr Wallace has been convicted. It also refers to investigations concerning Mr Wallace. The s22(1) refusal of access is not upheld, but claimed exemptions under ss 33(1)(b) and 40(1)(d) are upheld in paragraphs 71-74 and 137-138 of these reasons.

Document 119

45. This is an earlier letter relating to the same investigation as document 118. It relates to the false passport charges of which Mr Wallace was convicted. It is covered by paragraphs (2), (3) and (4) of Mr Wallace’s request. The claimed s 22(1) refusal of access is not upheld. Exemptions under ss 33(1)(b) and 40(1)(d) are considered, but not upheld, in paragraphs 75 and 139 of these reasons. Therefore, I will decide that it is to be released.

Document 120

46.     Document 120 is a letter from the AFP to the Royal Thai Police (the “RTP”).  It concerns an investigation into a person who is “deemed associated” with crimes for which Mr Wallace was investigated and charged. The s 22(1) refusal of access is not upheld. Exemptions have been claimed under ss 33(1)(b) and 40(1)(d). They are considered and upheld at paragraphs 76 and 140.

Document 121

47.     Document 121 is another letter from the AFP Liaison Officer in Bangkok to the RTP.  It concerns the investigation into the same person as documents 118 and 120.  There is material suggesting that he was “deemed associated” with crimes for which Mr Wallace was investigated. I do not uphold the claimed s 22(1) refusal of access. There are also claimed s 33(1)(b) and s 40(1)(d) exemptions, which are considered and upheld in paragraphs 77 and 141 of these reasons.

(B) CONFIDENTIAL INFORMATION FROM FOREIGN GOVERNMENTS: s33(1)(b)

48. Section 33(1)(b) provides:

33.  (1)    A document is an exempt document if disclosure of the document under this Act:

…

(b)     would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

The application of the exemption claimed under s 33(1)(b)

49. The following documents have not been released to Mr Wallace, and have been claimed to be exempt under s 33(1)(b):

Claimed Exempt: 23, 24, 31 (p 508-511), 87 (partially released), 90, 118, 119, 120, 121, 122, 123, 124, 126.

[note 23, 24, 31, 87, 90, 118, 119, 120, 121, 124, 126 also claim other exemptions]

50.     Dr Collins sought to call the evidence as to this claimed exemption without disclosing to Mr Wallace “the agency named in that document” (trans, p74).  No difficulty was made by the AFP in Re Rees and Australian Federal Police (1999) 57 ALD 686, [1999] AATA 252 about disclosure of the fact that the s 33(1)(b) exemptions claimed in that matter related to information communicated in confidence by the Royal Hong Kong Police.

51.     On 1 July 2004, I arranged for the Acting District Registrar to write to the Australian Government Solicitor, drawing attention to the decision in Rees and explaining my view that Mr Wallace was entitled to know the foreign agency from which it was claimed information had been communicated in confidence.  On 19 July 2004, a reply was received, which stated in part:

The respondent has no objection to the disclosure of the agency from whom the information in document 23 was obtained, namely the Royal Thai Police.  The respondent otherwise maintains its objection to the release of the contents of the document on the grounds outlined at the hearing.

52.     I am of the view that Mr Wallace is entitled to know the agency which is claimed to have communicated information in confidence “by or on behalf of … an authority of a foreign government … to a person receiving the communication on behalf of … an authority of the Commonwealth”. I consider that Mr Wallace is entitled to know, in respect of all documents for which a s 33(1)(b) exemption is claimed, not only document 23, the agency from which the AFP claims information was communicated in confidence. There may be circumstances in which the identity of the relevant agency should not be disclosed, but those considerations do not apply to the ordinary police force of a foreign country, such as the RTP.

53.     In regard to documents the release of which it is claimed would divulge information or matter “communicated in confidence” by the RTP to the AFP, it is necessary to consider the evidence on which the claim of communication in confidence is made.

54.     The AFP, in respect of this claimed exemption, did not rely on any express condition of confidentiality, as might be shown by a “confidential” or “protected” stamp on a document.  Nor did the AFP rely on correspondence expressly setting out the terms on which information was disclosed by the RTP to the AFP. 

55.     In Rees, the AFP had obtained a letter from the then Royal Hong Kong Police (the “RHKP”), for the purpose of that hearing, which confirmed the confidential basis upon which co-operation between the Hong Kong Police and the AFP had been provided (see paragraph 51 of reasons in Rees).  Also, some of the documents at issue in Rees contained an express request for confidentiality from the RHKP.

56.     In this matter, evidence as to the operational understanding of the requirement of confidentiality was given by Federal Agent Maddigan in her affidavit R5, and at the hearing.  Miss Lucas also addressed the issue. 

57.     Federal Agent Maddigan, in her affidavit sworn on 18 July 2003 (R5) said at paragraphs 11 – 16:

11.Many types of modern criminal activity and other activities affecting our national interests are developing an increasingly international character.  Accordingly, the exchange of information between the AFP and other law enforcement and similar agencies in other countries has become essential.

12.To that end, a network of overseas Liaison Officers has been developed.  The Liaison Officers are members of the AFP who have become an invaluable resource for the purpose of achieving the effective exchange of important information and intelligence.

13.The function of these officers is primarily the facilitation of operational co-operation between the law enforcement agencies of overseas countries and Commonwealth, State and Territory law enforcement agencies.  One of the most important aspects of co-operation is the exchange of information and intelligence.

14.In the spirit of co-operation, a network of international law enforcement agencies has also been developed between a large number of countries for the purposes of sharing intelligence on an agency to agency basis.  The exchange of such information is treated in confidence by long standing convention, unless it is expressly declared by the providing agency to be otherwise.

15.For information and intelligence to be useful it needs to be regular and of known reliability.  Disclosure of often sensitive information requires a high level of trust as abuse or careless use of information on a regular basis can cause substantial problems for the country providing the information and for individual informants.  Accordingly, a regular supply of high quality information from one country to another requires, as a fundamental principle, a relationship of trust and an understanding of the circumstances of the countries and agencies providing information.  I am aware that the AFP has spent considerable effort in developing such trust and understanding with the countries and agencies with which it deals.  As a result of this trust, the AFP receives a significant amount of information from other law enforcement agencies.

16.Without having regard to the particular circumstances of this matter, I know from my experience that an actual or perceived breach of confidentiality by the AFP in relation to this information would be taken seriously by the overseas authorities.  I would expect that there would be a reluctance to co-operate closely with the AFP.  This would lead, at best, to a diminishing of the quality and quantity of information received by the AFP.  At worst, there could be a disruption in co-operation between the AFP and overseas law enforcement authorities.

58.     At the hearing, Federal Agent Maddigan explained that the information in the relevant documents had been provided by the RTP for intelligence purposes only and not as the result of a formal “mutual assistance request” from “government to government”.  She said that even when intelligence is provided on an informal basis it is treated “highly sensitively and it is definitely treated in confidence, in that it is not to be released.  It is only to be used by the agency as in the AFP” (trans, p75).

59.     Federal Agent Maddigan said that where information has been provided informally by an agency or authority, such as the Police Force of a foreign government, the AFP would not consider itself at liberty to use that material in court proceedings without the explicit permission of the authority which provided the information (trans, p75).

60.     Miss Lucas also gave evidence as to documents 118 – 127.  She said that “information communicated with an overseas agency or vice versa is normally on the understanding that the information will not be released to a third party without prior consultation with that agency” (trans, p67-70).  Miss Lucas said it was her understanding that there would be an arrangement in respect of the confidentiality of intelligence sharing between the AFP and the RTP.  She said she had seen no documents to that effect but added “I guess [it is] an understanding between law enforcement agencies that is generally accepted”.

61.     Miss Lucas saw the danger of revealing such information as revealing the practice that the AFP can make such enquiries.  She saw danger in revealing, “the extent of our contact, the type of information we provide and the support we receive from that overseas agency” (trans, p75).  Miss Lucas said the disclosure could damage the AFP relationship with other overseas law enforcement agencies and could damage AFP investigations.  She suggested that revealing the information that the AFP engaged in intelligence sharing with overseas police forces “could damage our relationship with that country, their government and their police” (trans, p69).  I do not accept that evidence.  I consider that the approach adopted by the AFP in Rees was perfectly sensible.  The material is protected, if communicated in confidence, but the exemption is not upheld simply to prevent disclosure of the fact that there is liaison and co-operation with overseas police forces.

62.     Other relevant evidence is contained in the documents themselves.  Often the content of a document assists in ascertaining whether the information in a document was communicated in confidence.  That was recognised by Foster J in Department of Health v Jephcott (1985) 62 ALR 421.  His Honour said at 425, “in the case of an existing document containing information, it might be simple enough by reading the document to discover that the information was provided under an express or implied pledge of confidentiality”.  The same point was made in Re Price and Director of Public Prosecutions (1997) 4 QAR 157 at paragraphs 17 and 18.

63. Mr Wallace, at trans p141, cross-examined Federal Agent Maddigan about the basis of the claimed s 33(1)(b) exemption. He asked whether all the documents for which the exemption was claimed were marked “confidential”.  He asked whether there was any written agreement stating that communication between the RTP and the AFP was confidential.  He was told that not all documents were marked confidential, and that there was “an understanding”, but no written agreement, as to confidentiality.  He asked who the understanding was between, whether it was between Police Forces.  Federal Agent Maddigan replied “it may well be government to government” (trans, p141).  Mr Wallace asked whether there was any regulatory body that oversees what happens between Police Forces.  Federal Agent Maddigan told him there was none.

64. I regret that there was no evidence from the AFP Liaison Officer in Bangkok. His evidence as to the circumstances in which he obtained information from the RTP, and as to his understanding as to whether the communication of that information was confidential, would have been helpful to the Tribunal. Bearing in mind the onus on the respondent in s 61(1) of the Act, the AFP should always endeavour to put before the Tribunal the most persuasive evidence it can provide.

65.     I did not find Miss Lucas’ evidence very helpful.  It was too general and based on vague understandings and guesses rather than on her knowledge as to operational procedures.  It seemed to conflict with the course adopted by the AFP in Rees, without giving any explanation distinguishing the circumstances in Rees from those in this matter.  I found the evidence of Federal Agent Maddigan more logical and hence more helpful.  I have accepted her evidence and made findings on this issue on the basis of her evidence, although I would have preferred to have had evidence from the RTP or from an AFP Liaison Officer from Bangkok “as to the particular circumstances of this matter”.

Documents 23 and 24

66. Documents 23 and 24 are E-mails from the AFP Liaison Officer in Thailand to other Federal Agents, including Federal Agent Maddigan. They set out information obtained from the RTP and pass it on to the AFP in Australia. On the basis of the evidence of Federal Agent Maddigan, in her affidavit and at confidential transcript, p112-113, I find that the information set out in the documents was communicated in confidence to the AFP Liaison Officer, on behalf of the AFP. I uphold the s 33(1)(b) exemption claimed for documents 23 and 24.

Document 31

67. Document 31, pp 508-511 is from the inventory of property of Holly Deane-Johns, made by the RTP in Bangkok. It was provided as intelligence by Thai authorities to the AFP. Pages 508-511 are copies of the pages of one document. Because of the nature of that document, I do not accept that it was communicated in confidence, or that its disclosure would divulge matters communicated in confidence. The s 33(1)(b) exemption is not upheld for document 31, pp508-511. Nor is the s 40(1)(d) exemption upheld, as discussed at paragraph 132 of these reasons.

Document 87

68.     The status of document 87 was unclear.  After the hearing, I arranged for the Registrar to send a letter, dated 3 August 2004, to the parties, seeking to clarify the issue.  The document is highlighted indicating exemptions are claimed for parts of the document, but that other parts of it have already been released to Mr Wallace.  On 11 August 2004, the respondent’s solicitor confirmed that an exemption is claimed for the highlighted parts of the document, and that other parts have already been released to Mr Wallace.

69. Federal Agent Maddigan said document 87 contained information obtained by her from the AFP Liaison Officer in Bangkok and that it had been provided to the Liaison Officer by an authority of the Thai government (confidential trans, p121). Her evidence was that the information was communicated by the RTP in confidence. I accept that evidence and uphold the claimed exemption, as I find that the release of the part of the document as to which an exemption is claimed would divulge information communicated to the AFP Liaison Officer in confidence, by an authority of a foreign government. There is also a claimed s 37(2)(b) exemption, which is not upheld, at paragraph 121 of these reasons.

Document 90

70. Document 90 is described as a Case Note Entry with results of further enquiries in Bangkok. It contains information communicated to Federal Agent Maddigan by an AFP Liaison Officer in Bangkok. Some of the information in it was obtained by the AFP Liaison Officer when he accompanied RTP members undertaking police activities. I have decided, on looking carefully at the content of the document, that most of the information it contains must have been communicated by the RTP to the AFP. The AFP Liaison Officer would not have observed the detailed information set out in the document. I find, from the content of the document that the information was communicated in confidence to the AFP, by an agency of a foreign government. The claimed s 33(1)(b) exemption is upheld. A claimed s 37(2)(b) exemption is not upheld, at paragraph 122 of these reasons.

Document 118

71.     Document 118 is a letter from an AFP Liaison Officer in Bangkok to the UK Drugs Liaison officer in Bangkok.  It communicates some of the same information as was contained in document 90. 

72.     Dr Collins asked Miss Lucas, at trans p67:

Just having a look at the agency to which that document relates, are you able to say whether there is an arrangement in respect of the confidentiality of intelligence sharing between the AFP and that agency? --- It is my understanding that there would be, yes.

I pointed out that I had not seen any agreement.  Miss Lucas replied:

No.  It is I guess an understanding between law enforcement agencies that is generally accepted.

[But it is more a practice?] --- Yes.

[And this relates to information provided by the AFP to an overseas law enforcement agency?] --- Yes.

[You are saying that understanding relates to the AFPs own information as well as to information that it obtains from an overseas agency?] --- I would believe so, yes.

73.     Federal Agent Maddigan, in her affidavit of 18 July 2003 (R5) said at paragraph 14, already quoted in paragraph 57 above:

14.In the spirit of co-operation, a network of international law enforcement agencies has also been developed between a large number of countries for the purposes of sharing intelligence on an agency to agency basis.  The exchange of such information is treated in confidence by long standing convention, unless it is expressly declared by the providing agency to be otherwise.

74. I have considered the rather limited evidence on this issue. I find that the disclosure of the information to the UK Drugs Liaison Officer does not show that the communication to the AFP was not confidential. Rather, it was a disclosure allowed by the informal arrangements as to the confidential basis on which the information was communicated. It would have been preferable if the issue had been the subject of evidence from the AFP Liaison Officer. However, I am satisfied that the document is exempt under s 33(1)(b) of the Act. A s 40(1)(d) claimed exemption is also upheld at paragraphs 137-138 of these reasons.

Document 119

75. Document 119, which is identical to document 124, is also a letter dated 7 September 2000 from the AFP Liaison Officer in Bangkok to the UK Drugs Liaison Officer in Bangkok. It requests assistance in an investigation resulting from information and material contained in document 31, p474. Because of the nature of that information, I do not find that it was communicated in confidence to the AFP by the RTP. Some of the information has already been released to Mr Wallace as part of document 31, p474. The last five-line paragraph is clearly not information communicated by the RTP to the AFP. It is information known by the AFP from its own investigations. I find that the s 33(1)(b) exemption is not upheld. I also find that a claimed s 40(1)(d) exemption is not upheld, at paragraphs 139 of these reasons.

Document 120

76. Document 120 is a letter dated 28 September 2000 from an AFP Counsellor (Police Attache) to a RTP Officer, being the Officer in Charge PATTAYA. It reports information which the AFP Liaison Officer obtained from another unit of the RTP and requests the Officer in Charge, PATTAYA to consider taking further action in regard to that information. I find that the release of the document would disclose information communicated in confidence by the RTP to the AFP. I therefore uphold the claimed s 33(1)(b) exemption. A s 40(1)(d) exemption is also upheld at paragraph 140 of these reasons.

Document 121

77. Document 121 is another letter from the AFP Liaison Officer, Bangkok, to a RTP Police Officer at Pattaya. It is dated 26 September 2000. It asks for assistance with an investigation and passes information to the RTP. I find that its release would divulge information communicated in confidence to the AFP by the RTP. The claimed s 33(1)(b) exemption is upheld. I also uphold the claimed s 40(1)(d) exemption, at paragraph 141 of these reasons.

Document 122

78.     Document 122 is a transcript of a tape of conversations recorded by a police force.  Miss Lucas, when asked if she could say where it came from, said “It appears to come from an overseas law enforcement agency” (trans, p69).  There is nothing on the face of the document which establishes that fact. However, the content of the document confirms that evidence. The conversations are between people who were not in Australia at the time. I find that the information in this document would have been communicated on the understanding that it was communicated in confidence. The claimed s 33(1)(b) exemption is upheld.

Document 123

79. Document 123 is a communication dated 15 September 2000 from the AFP Liaison Officer in Bangkok to an AFP Officer in Perth. It attached document 31 and copies of other material provided to the AFP by the RTP. I find from the evidence and the content of the document, that the information and material was not provided by the RTP to the AFP on a confidential basis. The document states that some of the material is to be provided to Federal Agent Maddigan to assist her in handling the prosecution of Mr Wallace following his arrest. The s 33(1)(b) exemption is not upheld.

Document 124

80. Document 124 is identical to document 119 except that it does not include an unimportant handwritten note. The claimed s 33(1)(b) exemption is not upheld for the reasons given in respect of document 119. A s 40(1)(d) exemption is also not upheld, as discussed at paragraphs 139 and 142 of these reasons.

Document 126

81. Document 126 is again a transcript of a tape of a conversation. From the content of the document, I find it would have been provided to the AFP by the RTP on the understanding that it was communicated in confidence. For the same reasons set out in respect of document 122, I uphold the claimed s 33(1)(b) exemption. There is also a claimed s 37(1)(b) exemption, which is not upheld at paragraph 103 of these reasons.

(C) CONFIDENTIAL INFORMATION FROM STATE GOVERNMENTS: s 33A(1)(b)

82. Section 33A(1)(b) provides:

33A     (1)       Subject to subsection (5), a document is an exempt document if disclosure of the document under this Act:

…

(b)would divulge information or matter communicated in confidence by or on behalf of the Government of a State or an authority of a State, to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

Document 93

83. A s 33A(1)(b) exemption is claimed for document 93. It is described in the decision schedule (R7) as an Intelligence Assessment. It is marked at the top of every page “PROTECTED”.  Federal Agent Maddigan said at paragraph 47 of her affidavit R6:

I have reviewed folios 726-730.  I had no direct involvement with the compilation of this document.  I know from looking at the document that it is a confidential intelligence assessment which has been compiled, in part, from information provided by a State law enforcement agency.  Intelligence assessments of this kind are internally generated for intelligence purposes.  This assessment has been classified ‘Protected’, which means it should only be viewed by person who have a ‘protected’ security clearance.

84.     It is clearly stated in some parts of the document, i.e. 3^rd and 4^th paragraphs on p726, and top of p727, that the information contained in it was communicated by an authority of a state to the AFP.  From the content of the document, I find that other information was also communicated by State authorities to the AFP.  I find on the evidence of Federal Agent Maddigan, and on the basis of the “PROTECTED” heading to the document, that such information would have been communicated in confidence. I uphold the s 33A(1)(b) exemption claimed for document 93.

85. Document 93 is also the subject of a claimed s 37(1)(b) exemption, which is not upheld in paragraphs 101-102 of these reasons.

(D) CONFIDENTIAL SOURCES OF INFORMATION: s 37(1)(b)

86. Section 37(1)(b) provides:

(1)        A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

…

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

…

(3) In this section, law means law of the Commonwealth or of a State or Territory.

87.     The meaning of the words “would or could reasonably be expected to” was explained by the Full Court of the Federal Court in Attorney-General v Cockroft (1986) 64 ALR 97 at 106.  Bowen CJ and Beaumont J said:

In our opinion, in the present context, the words “could reasonably be expected to prejudice the future supply of information” were intended to receive their ordinary meaning. That is to say, they require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the Commonwealth or any agency would decline to do so if the document in question were disclosed under the Act.

88. The Respondent’s Statement of Facts and Contentions, at paragraphs 22 – 26 set out the relevant principles to be borne in mind in considering the application of s37(1)(b). I accept that those paragraphs correctly summarise the law on this exemption. The accepted description of a confidential source is that adopted by Forster J in Jephcott at 425:

I am content to accept the interpretation in Luzaich v United States (1977) 435 F Supp 31 at 35, “a source is confidential if the information was provided under an express or implied pledge of confidentiality”. In the case of an existing document containing information it might be simple enough by reading the document to discover that the information was provided under an express or implied pledge of confidentiality, but in the case of a document which may or may not exist the matter is more difficult. It could be that departmental practice when receiving information of certain types might be of assistance, but this court knows nothing of this. It could also be that the presumed contents of the possibly non-existing document, apprehension as to its contents and the relationship of the supposed informant to the person supposedly informed about might enable an inference to be drawn that the information provided, if any, was so provided under an implied pledge of confidentiality.

The relevant paragraphs from the Respondent’s Statement of Facts and Contentions read:

22The words 'could reasonably be expected to' require 'a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous': Attomey-General's Department v Cockcroft (1986) 64 ALR 97, 106.

23Section 37(1)(b) is unequivocal in its terms. If a source of information is to be regarded as confidential, then that source is entitled to the protection of s 37(1)(b). There is no room for the introduction of any concept of 'public interest' or 'substantial risk that the administration of law will be impaired'. The onus of establishing confidentiality is on the respondent, on the balance of probabilities. See Department of Health v Jephcott, above, 425-426 (Forster J), 426-7 (Davies J).

24A source is to be regarded as confidential 'if the information was provided under an express or implied pledge or confidentiality'. An express or implied pledge of confidentiality can often be discovered simply by reading the document in question. See Department of Health v Jephcott, above.

25It has long been recognised that where information is provided by a police informer, it is in the public interest that that information be kept secret: R v Lewes Justices; ex parte Secretary of State for the Home Department [1973] AC 388, 401 (Lord Reid), 407-8 (Lord Simon of Glaisdale); D v National Society for the Prevention of Cruelty to Children [1978] AC 171, 218 (Lord Diplock). See also Re Scholes v Australian Federal Police (1996) 44 ALD 299, 314-6.

89.     The AFP submitted:

26The documents which the Respondent seeks to exempt from disclosure under s 37(1)(b) either identify police informers by name, or record information provided by police informers in a way which could reasonably lead to them being identified.

90. The documents for which exemption is claimed under s 37(1)(b) are:

Claimed Exempt: 2 (p7-10), 14 (p 53), 19 (p 451-6), 20, 21, 24, 91 (p722), 92 (p723-724), 93, 126, 127.

[note 14, 20, 24, 92, 93, 126 also claim other exemptions]

Document 2

91. Document 2 is an AFP personality profile of Mr Wallace. Pages 7-9 are claimed to be exempt under s 37(1)(b) of the Act. While it may be that some of the information on pp7, 8 and the top of p9 was provided by confidential sources, there is no indication of that on those pages. Nor does the evidence of Federal Agent Maddigan (at transcript in confidence, p93) lead me to find that the disclosure of those pages would or could reasonably be expected to disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law (“a confidential source”).

92. The evidence of Federal Agent Maddigan (at confidential trans, p93) suggested that there may be operational reasons why document 2 pp 7-8, and the part of p9 which has not so far been released to Mr Wallace, should not be released. However, her evidence did not satisfy me that they are exempt documents under s 37(1)(b) of the Act. I find that the s 37(1)(b) exemption is not upheld. As that is the only exemption which has been claimed, I find that the document is not an exempt document.

Document 14

93. Document 14 is extracts from the day book of Federal Agent Maddigan. I have already upheld all the claimed s 22(1) deletions, except for one entry for 27 June 2000 on p55. The s 37(1)(b) exemption is claimed for an entry on p53 as to which no s 22(1) deletion was claimed. There is no indication in the entry that the disclosure of that entry would or could reasonably be expected to reveal the existence of a confidential source. Nor was there any evidence which satisfied me of that. I do not uphold the claimed s 37(1)(b) exemption for part of p53. Nor do I uphold the s 40(1)(d) exemption claimed in respect of that entry (see paragraph 140 of these reasons). I have already explained that p54 is a duplicate of p53, and the same considerations apply to p54 as to p53. No exemptions are upheld for these pages.

Document 19

94. Document 19 is described in the decision schedule (R7) as AFP File 2000/0695 and File Action sheets. A s 37(1)(b) exemption is claimed for some deletions at pp 452 – 458. I find that the release of the names and details claimed to be exempt on pages 452 – 454 would not disclose or enable a person to ascertain the existence or identity of a confidential source of information. While some of the information may have come from confidential sources, there is no identifying information given in the document nor would the nature of the information itself disclose, or enable a person to ascertain, the existence or the identity of a confidential source. The last claimed deletion on page 452 after the released word “connection”, is personal information about one person, but no exemption has been claimed in respect of that information. 

95. The copy of p456 provided to me was not shown by highlighting to be claimed to be totally exempt. Dr Collins, at trans p135, said that the whole page was claimed to be exempt. I find that the release of the name at the top of p455 and the whole of p456 and top line of p457 could reasonably be expected to disclose or enable a person to ascertain the identity of a confidential source of information. I uphold the claimed s 37(1)(b) exemptions for the top of p455 and the whole of p456, because of the nature of the information on the page, and in reliance on the evidence of Federal Agent Maddigan (confidential trans, p107). I was told that p457 had been released with only a few deletions of names in the entry for 15 June 2000 (trans, p135). I do not uphold the claimed s 37(1)(b) exemption for those names. Nor do I uphold the claimed s 37(1)(b) exemptions for a name on the top line of p458, and for other names on the sixth line of that page.

Document 20

96. Document 20 p460 contains reference to two people who are claimed by the AFP to be confidential sources. I find that the disclosure of the document could reasonably be expected to disclose the existence or identity of a confidential source of information in relation to the enforcement or administration of the law. I uphold the claimed s 37(1)(b) exemption.

Document 21

97. Document 21 is an E-mail concerning a conversation with a person who provided information in confidence to an AFP Federal Agent. I uphold the s 37(1)(b) exemption claimed for that document.

Document 24

98. I have already upheld, at paragraph 66, a s 33(1)(b) exemption in respect of this E-mail on the ground that it contains information passed on to the AFP by the RTP in confidence. There was no evidence which showed that the document would be covered by a s 37(1)(b) exemption. I do not find that it contains information making it exempt under s 37(1)(b) of the Act. The claimed s 37(1)(b) exemption is not upheld.

Document 91

99.     Document 91 is described in the decision schedule as “Information Reports”.  From the content of the document, I find it contains information from a confidential source and that its disclosure would or could reasonably be expected to disclose, or enable a person to ascertain, the existence or identity of a confidential source of information. I uphold the claimed s 37(1)(b) exemption.

Document 92

100.   Document 92 is described in the decision schedule (R7) as an Overseas Liaison Communication.  It is a request for information from an AFP Federal Agent in Australia to the AFP Liaison Officer in Bangkok.  It is headed “IN CONFIDENCE”.  Federal Agent Maddigan explained that it contains information which may come from a number of sources. She said the information leads her to believe that it was obtained from confidential sources. I find that the document includes information from informants who are confidential sources and that in respect of that information its disclosure would or could reasonably be expected to disclose, or enable a person to ascertain the identity of, a confidential source. There is also a claimed s 40(1)(d) exemption upheld for this document, in paragraph 136 of these reasons.

Document 93

101.   Document 93 is an intelligence assessment prepared by an AFP Intelligence Analyst.  It is headed “PROTECTED”, but that is not determinative of the claim that the document is exempt under s 37(1)(b) of the Act. That exemption requires consideration of the content of the document, and of the effect of its disclosure in regard to disclosing or enabling a person to ascertain the identity of a confidential source.

102. I cannot find on the evidence given either at the open or at the closed hearing (confidential trans, p90-92), or from document 93 itself, that the claimed s 37(1)(b) exemption should be upheld. I do not find that the disclosure of document 93 would or could reasonably be expected to disclose or enable a person to ascertain the existence or identity of a confidential source of information or the non-existence of a confidential source of information. The s 37(1)(b) exemption claimed for document 93 is not upheld, but I have already held the document to be exempt under s 33A(1)(b) of the Act, at paragraphs 83-84 of these reasons.

Document 126

103.   Document 126 is described in the decision schedule as a “Tape of Conversation”.  It does not contain information knowingly provided to any police or investigating authority.  Thus, I do not accept that it was provided by “a confidential source”.  The information was not provided under “an express or implied pledge of confidentiality”. I do not find the release of document 126 would disclose or enable a person to ascertain the existence or identity or non-existence of a confidential source. The claimed s 37(1)(b) exemption is not upheld. There is also a s 33(1)(b) exemption claimed for document 126, which is upheld at paragraph 81 of these reasons.

Document 127

104.   Document 127 is described in the decision schedule as an “Information Report”.  From the content of the document, I find it contains information from a confidential source and that its disclosure would or could reasonably be expected to disclose, or enable a person to ascertain, the existence or identity of a confidential source of information. I uphold the claimed s 37(1)(b) exemption.

(E) PREJUDICE TO FAIR TRIAL OR IMPARTIAL ADJUDICATION: s 37(2)(a)

105. Section 37(2) provides, so far as relevant:

(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

(a)prejudice the fair trial of a person or the impartial adjudication of a particular case; …

106.   In paragraphs 7 and 8 of her affidavit, Federal Agent Maddigan stated:

7.I am aware that the applicant has an outstanding warrant in Western Australia for conspiracy to import a prohibited import, namely heroin, under s 233(1)(cb) of the Customs Act 1901. I understand that the prosecution in relation to this alleged offence remains outstanding as evidenced by the correspondence attached at Confidential Annexure “PAM1” and the Confidential Annexure “PAM2”.

8.Without having regard to the specifics of this case, in my experience if that information were to be prematurely disclosed it could prejudice the impartial adjudication of the case and the fair trial of the applicant.

107.   The meaning of the words “would or could reasonably be expected to” has already been discussed in relation to s 37(1)(b). The issue in respect of the only document for which a s 37(2)(a) exemption has been claimed is whether the release of that document would or could reasonably be expected to prejudice the fair trial of Mr Wallace in respect of the charges he faces arising out of the alleged 1991 conspiracy to import heroin. A judgment is required as to whether it is “reasonable, as distinct from something that is irrational, absurd or ridiculous” to expect that the release of the document could prejudice the fair trial of Mr Wallace.  As Dr Collins pointed out, there are two parties to a criminal trial and the interests of both need to be considered.  That is correct, although the interests of the two parties are not identical to the interests of parties to civil litigation.  Halsbury’s Laws of Australia, at paragraph 130-13685 sets out the primary duties of a prosecutor as follows:

It is the duty of the prosecutor to assist the court to ensure that justice is done and not to strive for a conviction at all costs, but to present the case fairly.  However the prosecutor has a duty to secure the conviction of the accused by all proper means.

The application of the exemption claimed under s 37(2)(a)

Document 22

108. Document 22, the only document claimed to be exempt under s 37(2)(a) of the Act, is an E-mail from one Federal Agent to another, concerning the first instance warrant in respect of the prosecution against Mr Wallace for the 1991 alleged offence of conspiracy. I have read document 22 and the two confidential annexures to the affidavit R5. They are letters which came into existence subsequent to the date of the request in this matter. Evidence and discussion about the document is at confidential transcript pp109-112.

109. For the reasons discussed at the hearing, I have decided that the claimed s 37(2)(a) exemption should not be upheld. There was no evidence given as to how the release of document 22 could reasonably be expected to prejudice the fair trial of Mr Wallace in respect of the alleged 1991 offence. Federal Agent Maddigan qualified her affidavit evidence by giving it “without having regard to the specifics of this case” (R5, p3).  It is evidence with regard to the specifics of the case which would be persuasive. There is also a s 42(1) exemption claimed in respect of that document. It is partly upheld at paragraph 148 of these reasons.

(F) DISCLOSURE OF METHODS FOR DEALING WITH BREACHES OF LAW: s 37(2)(b)

110. Section 37(2)(b) and (3) provide:

(2) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

…

(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures; or

(c)prejudice the maintenance or enforcement of lawful methods for the protection of public safety.

(3) In this section, law means law of the Commonwealth or of a State or Territory.

The application of the exemption claimed under s 37(2)(b)

111.   Dr Collins relied on Re Mickleburg and Australian Federal Police (1984) 6 ALN N176 where the Tribunal said as to the operation of s 37(2)(b):

It is of course difficult to discuss adequately the application of this provision to the documents now under review.  Perhaps the most useful comments are to say firstly, that in the public interest it is essential that law enforcement agencies have speedy, accurate and secure systems of communication, both within an agency and between agencies especially where agencies have different fields of responsibility.  Secondly, it is one thing for observers to deduce, with varying success from everyday experience media reports and other informal sources, what appear to be the methods and procedures employed by such agencies to achieve their objects, but it is quite another thing to have spelt out publicly from the agencies, [sic] own documents or in the proceedings of a Tribunal such as this what those methods and procedures are.  The risk that they may be less effective would seem to be increased if a person endeavouring to combat or evade them has authoritative knowledge of them.

112.   Dr Collins also referred to Re Anderson and Australian Federal Police (1986) 11 ALD 355 where the Tribunal said, at 364:

A document may disclose methods or procedures either by specifically referring to or describing them or by providing information from the nature of which the methods or procedures employed may be capable of being inferred.  Thus, the disclosure of a document containing information that, on the face of it, is purely factual, may nevertheless be information known only to a chosen few members of a particular group.  To reveal that information, may disclose the existence or identify a confidential source of information in relation to the enforcement or administration of the law.  It may equally serve to confirm what may otherwise only be suspected, namely the methods or procedures for preventing or detecting possible breaches or evasions of the law employed by the police in order to meet a perceived threat.

113.   The respondent’s Amended Statement of Facts and Contentions, at paragraph 31, contended:

The documents which the Respondent seeks to exempt from disclosure under s 37(2)(b) disclose procedures and methods employed by the Respondent in investigating suspected criminal activity.  While members of the community may have a general understanding of some of the methods or procedures disclosed in the documents, it is submitted that the documents over which an exemption is claimed illuminate those methods or procedures to an extent which would not be known by the community.

114.   Dr Collins in his closing address said that it was no secret that some of the documents claimed to be exempt came from telecommunications companies.  He said (trans, pp149-150):

We place reliance on paragraph 37(2)(b) in relation to various classes of documents.  Some of them, it is no secret, are documents that came from telecommunications companies.  Others, the identity was disclosed in the confidential session.  What we say about all of these documents is that while members of the community might have a general understanding that the Federal Police uses these types of investigative methods or procedures to assist in their investigations, these documents go quite a bit further than merely confirming suspicions.  They in fact spell out the way in which information is obtained, how quickly it is obtained, the relative informality or formality of the nature of the request, and other matters.

The authorities recognise a distinction between the suspicions on the part of members of the community and having information spelt out in an agency’s own documents. …

We say the documents over which we claim an exemption under paragraph 37(2)(b) fall squarely within that description.  They are documents which, if disclosed, would spell out what might only otherwise be deduced by the ordinary observer.

115. What must be borne in mind in considering exemptions claimed under s 37(2)(b) is that the exemption applies not where a document identifies a method or procedure, but where it discloses one and where the disclosure would be reasonably likely to prejudice the effectiveness of the methods or procedures.  As the Tribunal said in Re Scholes, at 331:

If the methods are methods which every reader of detective stories and every watcher of “Blue Heelers”, “Janus”, “The Bill” and other police shows on TV knows all about, then the identification of the methods will disclose nothing and, further, will have no effect on the effectiveness of those methods or procedures.

116. The documents claimed to be exempt under s 37(2)(b) of the Act are:

Claimed Exempt: 29, 49, 78, 82, 87, 90.

[49, 78, 82, 87 & 90 also claimed exempt under other provisions]

Document 29

117.   Document 29 contains three pages which are described in the decision schedule (R7) as “Fascimile from AFP to Optus”.  They also contain information provided by Optus.  I find that the disclosure of pp469 and 470 would not “disclose” a lawful method of investigation, as that method is well known. For the same reason, its disclosure would not prejudice the effectiveness of the method. There is information of a different character in p471. The disclosure of that page could reasonably be expected to disclose lawful methods of investigating breaches of the law and would be reasonably likely to prejudice the effectiveness of those methods. The claimed s 37(2)(b) exemption is not upheld for pp469 and 470, but is upheld for p471.

Document 49

118. Document 49 is described in the decision schedule as an E-mail concerning Austrac enquiry. That description has already disclosed the nature of the method of investigation. Dr Collins submitted that the detail as to the method was not widely known and that to disclose the details on p622 would be reasonably likely to prejudice the effectiveness of that method. I accept that submission and uphold the claimed s37(2)(b) exemption. A s 40(1)(d) exemption is also claimed, but not upheld at paragraph 133 of these reasons.

Document 78

119.   Document 78 is described in the decision schedule as a “facsimile for CCR check”. That describes p678. The following page, p679, contains further information of a different character. It was clarified by Mr Wallace that the stamps on these documents indicating that it had been released had been placed on the documents in error. I do not uphold the claimed exemption for p678. I do uphold the exemption for p679, because I find that its release could reasonably be expected to disclose lawful methods of investigating breaches of the law and would be reasonably likely to prejudice the effectiveness of those methods. I do not uphold the claimed s 40(1)(d) exemption for p679 of that document, at paragraph 134 of these reasons.

Document 82

120.   Document 82, pp683-695, is also described as “Facsimile for CCR check”. It also includes the response to the AFP enquiry. I do not uphold the claimed exemption because the disclosure of the document would disclose no more about the use of CCR as a method of investigation than is commonly known and was disclosed in the decision schedule description of the document. Once again the evidence was that the FOI release stamp was an error and the documents had not been released. A s 40(1)(d) claimed exemption is also not upheld, at paragraph 135 of these reasons.

Document 87

121.   As explained in paragraph 68 of these reasons, an exemption is claimed for the highlighted parts of the document.  Document 87 is described in the decision schedule as an AFP case note entry.  It is shown in the decision schedule as having been partially released to Mr Wallace in the primary decision of 3 April 2002.  The highlighting on the copy produced to me indicates that the entry title “Travel Movements from Bangkok” was released to Mr Wallace, together with four entries regarding his travel movements and travel movements of other named passport holders, being passports he used. That partial release discloses all the information as to methods which would be disclosed by release of the remainder of the document. The s 37(2)(b) exemption is not upheld. I have upheld the claimed s 33(1)(b) partial exemption at paragraph 69 of these reasons.

Document 90

122. Document 90, p720 is a case note entry as to the result of further enquiries in Bangkok. I see nothing in that document to attract a s 37(2)(b) exemption. The claimed s 37(2)(b) exemption is not upheld. A s 33(1)(b) exemption has been upheld, at paragraph 70 of these reasons.

(G) DISCLOSURE HAVING SUBSTANTIAL ADVERSE EFFECT ON OPERATIONS OF AGENCY: s 40(1)(d)

123.   Subsections 40(1)(d) and (2) provide:

(1)       Subject to subsection (2), a document is an exempt document if its disclosure under this Act would, or could reasonably be expected to: …

(d) have a substantial adverse effect on the proper and efficient conduct of the operations of an agency;  …

(2) This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

124. In support of the claimed s 40(1)(d) exemptions, Dr Collins, in the respondent’s Amended Statement of Facts and Contentions, contended:

32.By s 40(1)(d), a document is exempt if its disclosure under the Act would, or could reasonably be expected to, have a substantial adverse effect on the operations of an agency. A document is not exempt, however, if disclosure of the document would, on balance, be in the public interest: s 40(2).

33.The word substantial is perhaps best understood as meaning ‘serious’ or ‘significant’: Re James and Australian National University (1984) 6 ALD 678.

34.A document would be exempt from disclosure under s 40(1)(d) if its disclosure would ‘substantially diminish the flow of useful information’ to the agency: Re Boehm and Commonwealth Ombudsman (1985) 8 ALN N29.

35.The documents which the Respondent seeks to exempt from disclosure in reliance on s 40(1)(d) would, if disclosed, be likely to lead to a diminution in the flow of useful information to the Respondent of a kind which is essential to the investigation of suspected criminal activity.

125.   The meaning of the term “substantial adverse effect” was discussed by Beaumont J in Harris v Australian Broadcasting Corporation and Others (1983) 50 ALR 551 at 564:

Under s40(b), exemption is given only if “a substantial adverse effect” of the kind there described can be established.  In my opinion, no such inference should be drawn here.  It is possible to imagine that disclosure of the reports at this stage could possibly embarrass those charged with supervising or reviewing the operations of the Legal Department of the Corporation.  However, I am not persuaded that any such effect, even if adverse, could fairly be described as “substantial” in its impact (see Tillmanns Butcheries Pty Ltd v Australasian Meat Industries Employees’ Union (1979) 27 ALR 367 at 374, 382). In my view, the insertion of a requirement that the adverse effect be “substantial” is an indication of the degree of gravity that must exist before this exemption can be made out. There is no such threat established on the material here. Indeed, the Corporation called no evidence on this or any other issue. Although evidence as to the apprehended position may not always be essential, it is difficult to draw an inference of the type urged by the applicant in these circumstances.”

126. Section 40(1)(d) is a difficult exemption to establish, because of the requirement that disclosure of the relevant document would or could reasonably be expected to have a “substantial adverse effect” on the proper and efficient conduct of the operations of an agency.  There was no evidence as to how the disclosure of the documents for which the exemption is claimed would satisfy paragraph 40(1)(d).

127.   It is necessary to look at the documents for which the exemption is claimed to see whether it is apparent from their content, that their disclosure would or could reasonably be expected to have a substantial adverse effect on the AFP.

The application of the exemption claimed under s 40(1)(d)

128. The following documents have been claimed to be exempt documents under s 40(1)(d):

Claimed Exempt: 13 (p 47), 14 (p 53), 23, 31 (508-11), 49, 78, 82, 92, 118, 119, 120, 121, 124

[all documents are also claimed exempt under other provisions]

Document 13

129. Document 13, p47 is claimed to be partially exempt. The deletion claimed and upheld under s 22(1)(a) covers the entry for which a s 40(1)(d) exemption is claimed. There was no evidence explaining the s 40(1)(d) exemption claimed for part of this page. It is apparent from the contents of the page that it relates to an investigation of two people mentioned by name who, so far as the evidence reveals, have no association at all with Mr Wallace, or any of his activities. I do not find that its release would have the specified effect. The s 40(1)(d) exemption is not upheld, but the information will not be released because the material is irrelevant to Mr Wallace’s request.

Document 14

130. Document 14, p53 (and p54 which is a duplicate) is also claimed to be partially exempt under s 40(1)(d). Again, there was no evidence explaining the exemption claimed for part of this page. It is not apparent from the page that its release would have the specified effect. The s 40(1)(d) exemption is not upheld. A claimed s 37(1)(b) exemption for the same entry was not upheld, at paragraph 93 of these reasons.

Document 23

131.   The information in document 23, p463 has apparently been provided by the RTP and the document has already been held to be exempt for that reason.  I have found on the evidence of Federal Agent Maddigan that the information was provided on the understanding that it would be kept confidential.  I also had evidence as to the necessity for close co-operation in drug importation cases between the AFP and the police forces of other countries.  I find that the disclosure of the information provided in confidence could have a “substantial adverse effect”, by interfering with the close co-operation between the RTP and the AFP. I find on that evidence that the s 40(1)(d) exemption claimed for document 23 is upheld. A claimed s 33(1)(b) exemption has also been upheld, at paragraph 66 of these reasons.

Document 31

132.   Document 31, p508-511 is part of the Inventory of Property of Holly Amanda Deane-Johns.  It contains information received from the RTP, but I do not find that the information was communicated in confidence to the AFP.  The nature of document 31 and the source of information, and document 123, indicate that the information was not communicated in confidence.  Nor do I find that its disclosure would or could reasonably be expected to have a “substantial adverse effect” in terms of damaging the co-operation between the AFP and the RTP. The claimed s 40(1)(d) exemption is not upheld. A claimed s 22(1) deletion, and a claimed s 33(1)(b) exemption have been dealt with, and not upheld, at paragraphs 38 and 67 these reasons.

Document 49

133.    I have held that document 49, the “E-mail concerning Austrac Enquiry”, is exempt under s 37(2)(b) as its disclosure would be reasonably likely to prejudice the effectiveness of the methods of investigation it discloses (See paragraph 118 of these reasons). While I am satisfied of that requirement, I am not satisfied that the evidence establishes that the disclosure of that document could reasonably be expected to have a “substantial adverse effect” as required by s 40(1)(d). To make that finding, I would require evidence as to the nature of the reasonably expected “substantial adverse effect”. There is no evidence that meets that high test in regard to document 49. The claimed s 40(1)(d) exemption is not upheld.

Document 78

134.   This document is a “Facsimile for CCR check”.   The evidence satisfied me that the disclosure of p679 of the document could reasonably be expected to prejudice the effectiveness of the method of investigation disclosed.  The evidence did not satisfy me that such a disclosure could reasonably be expected to have a “substantial adverse effect” on the proper and efficient conduct of operation of the AFP. The evidence did not quantify the nature or seriousness of the expected prejudice at all. The claimed s 40(1)(d) exemption is not upheld. A s 37(2)(b) exemption has been upheld for p679, but not for p678, at paragraph 119.

Document 82

135.   Document 82 is again a request for a “CCR check”. It also contains a request for information and a response. I did not uphold the s 37(2)(b) claimed exemption (see paragraph 82). The evidence falls short of satisfying me that the claimed s 40(1)(d) exemption should be upheld. The claimed s 40(1)(d) exemption is not upheld. Therefore document 82 is to be released.

Document 92

136.   This document is described as an “Overseas Liaison Communication” in the decision schedule (R7).  It is a request from a Perth Federal Agent to the Bangkok AFP Liaison Officer.  It sets out information held by the AFP as to the identity and activities of persons of interest to the AFP and requests assistance with further investigations.  I accept from the content of the document, and from the fact that it is headed “IN CONFIDENCE”, that the release of the document could prejudice further investigations and could disclose material obtained in confidence. Such disclosure could reasonably be expected to have a substantial adverse effect on the operations of the AFP. I uphold the claimed s 40(1)(d) exemption for document 92.

Document 118

137.   This is a letter to the UK Drugs Liaison Officer in Bangkok, from the AFP Liaison Officer in Bangkok.  Miss Lucas was asked what the damage would be if it were released.  She replied (trans, p68):

Well, it could damage our relationship with overseas law enforcement agencies.  It could damage any AFP investigations.

[How?] By revealing the fact that we could make these inquiries overseas, it could reveal our practices that we can undertake to make such inquiries.

138. That answer does not establish that the disclosure of the document would or could reasonably be expected to have a substantial adverse effect on the operations of the AFP. However, on looking at the content of the document, I find that the effect of releasing information contained in the document which was provided in confidence by the RTP, could reasonably be expected to have a substantial adverse effect, as required to attract the s40(1)(d) exemption. There is considerable information in the document, as to alleged criminal activities of the people mentioned in the document, and as to their methods of operation. The claimed s 40(1)(d) exemption is upheld.

Document 119

139. Document 119 is a letter from the AFP Liaison Officer in Bangkok to the UK Drugs Liaison Officer in Bangkok. Miss Lucas said she relied on the same reasoning as in respect of document 118 for claiming a s40(1)(d) exemption. That evidence does not satisfy the requirements of s40(1)(d). The nature of the information in this document does not have the same quality of requiring confidentiality as that in document 118. I do not find that the release of the information contained in the letter from the AFP to the UK Drug Liaison Officer would or could reasonably be expected to damage relations between the AFP and the RTP. The claimed s 40(1)(d) exemption is not upheld.

Document 120

140. Document 120 is in part very similar in content to document 118. It appears to pass on to the RTP information that must have come from the RTP in the first place. Because of the content of that document, I find that it contains sensitive information both about the working relationship between the AFP and the RTP, and about people other than Mr Wallace who are suspected of having been engaged in criminal activities. Miss Lucas said that if it were disclosed it could damage the AFP’s relationship with Thailand, with the Thai government and with the RTP. That may be overstating the substantial adverse effect, but I accept that it could damage the AFP’s important relationship with the RTP. I find that document 120 is exempt under s 40(1)(d) of the Act.

Document 121

141. The same considerations apply to document 121 as to document 120. I uphold the claimed s 40(1)(d) exemption in respect of document 121.

Document 124

142. Document 124 is a duplicate of document 119. For the same reasons as given in respect of that document, the claimed s 40(1)(d) exemption is not upheld.

(H) LEGAL PROFESSIONAL PRIVILEGE: s 42(1)

143. Section 42(1) provides:

42.(1)     A document is an exempt document if it is of such a nature that it would be

privileged from production in legal proceedings on the ground of legal

professional privilege.

144.   The AFP’s Amended Statement of Facts and Contentions states as to this claimed exemption:

32.By s 42(1), documents are exempt from disclosure under the Act if they would be privileged from production in legal proceedings on the ground of legal professional privilege.

33.Legal professional privilege protects against the disclosure of oral or written confidential communications between a client and his or her lawyer, made or brought into existence for the dominant purpose of seeking or giving advice, or for the dominant purpose of use in existing or anticipated litigation: Baker v Campbell (1983) 153 CLR 52; Esso Australia Resources Limited v Commissioner of Taxatio (1999) 201 CLR 49.

145.   In Re Wallace and Director of Public Prosecutions [2003] AATA 119, I discussed the operation of legal professional privilege at paragraphs 75-76.  So far as relevant to this  matter, I said:

75.      The rule as to when legal professional privilege exists is shortly stated in Cross on Evidence (6^th Australian edition 2000) para 25210 as follows:

In civil and criminal cases, confidential communications passing between a client and a legal adviser need not be given in evidence or otherwise disclosed by the client and, without the client’s consent, may not be given in evidence or otherwise disclosed by the legal adviser if made either (1) to enable the client to obtain, or the adviser to give, legal advice, or (2) with reference to litigation that is actually taking place or was in the contemplation of the client.

…

76.      The rule as to the existence of legal professional privilege was concisely explained by the High Court in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 where Gleeson CJ, Gaudron, Gummow and Hayne JJ, said in the majority judgment at paragraphs 9 and 10:

It is now settled that legal professional privilege is a rule of substantive law [Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 490 per Deane J.] which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings. It may here be noted that the "dominant purpose" test for legal professional privilege was recently adopted by this Court in Esso Australia Resources Ltd v Federal Commissioner of Taxation [(1999) 201 CLR 49 at 73] in place of the "sole purpose" test which had been applied following the decision in Grant v Downs[(1976) 135 CLR 674].

Being a rule of substantive law and not merely a rule of evidence, legal professional privilege is not confined to the processes of discovery and inspection [See, with respect to discovery and inspection, Mann v Carnell (1999) 201 CLR 1.] and the giving of evidence in judicial proceedings [See Baker v Campbell (1983) 153 CLR 52 at 115-116 per Deane J; Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 55 [4] per Gleeson CJ, Gaudron and Gummow JJ; Mann v Carnell (1999) 201 CLR 1 at 10-11 [19] per Gleeson CJ, Gaudron, Gummow and Callinan JJ.]. Rather and in the absence of provision to the contrary, legal professional privilege may be availed of to resist the giving of information or the production of documents in accordance with investigatory procedures of the kind for which s 155 of the Act [Trade Practices Act 1974] provides. Thus, for example, it was held in Baker v Campbell, that documents to which legal professional privilege attaches could not be seized pursuant to a search warrant issued under s 10 of the Crimes Act 1914 (Cth) [(1983) 153 CLR 52. See also Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.]

146.   The dominant purpose test was explained in Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 168 ALR 123,  (1999) 201 CLR 49 at 54, paragraph 2:

The test … is whether the communication was made or the document was prepared for the dominant purpose of the lawyer providing legal advice or legal services. 

It is recognised that the privilege applies to “a confidential communication, oral or in writing” prepared for that dominant purpose.

147. The only document for which an exemption has been claimed under s 42(1) is document 22. It is an E-mail from one Federal Agent to another. In part it refers to DPP advice about the alleged 1991 conspiracy to import heroin, in respect of which Mr Wallace has been charged but not yet tried. I find, from the document, that the DPP was acting as legal adviser to the AFP in providing that advice.

Document 22

148. Document 22 was not prepared for the dominant purpose of conveying legal advice. It is a minute asking for various steps of an operational nature to be taken. The legal advice is only referred to in the context of explaining why the steps need to be taken. There is no evidence as to how or when that legal advice was obtained. However, I find, from the document, that the legal advice set out in the document was communicated by the DPP to the AFP for the dominant purpose of the DPP providing legal advice to the AFP about the contemplated trial of Mr Wallace. I find that the content of that communication would be privileged from production in legal proceedings, on the ground of legal professional privilege. I find that legal professional privilege would apply to the parts of the document which convey or communicate the legal advice. However, it would be possible to release the document with deletions under s 22 of the Act, so that, disclosure of the legal advice is protected by s 42(1) of the Act, but other parts are released. I find that the parts that are covered by the s 42(1) exemption are the third and fourth paragraphs of the message and subparagraph (ii) in the list of subparagraphs (i) to (v). I will uphold the s 42(1) exemption for those parts of the document.

CONCLUSION

149.   The decision under review will be varied to provide:

(i)That the documents or parts of documents as to which I have upheld a claim under s22(1) of the Act are irrelevant to Mr Wallace’s request.

(ii)That the documents or parts of documents which are “exempt documents” under the Act are those as to which exemptions are shown as upheld in the Decision Schedule forming part of the decision in this matter, which summarises the Tribunal’s findings as to the application of ss 33(1)(b), 33A(1)(b), 37(1)(b), 37(2)(a), 37(2)(b), 40(1)(d) and 42(1) of the Act.

(iii)Mr Wallace is entitled to have access to the documents or parts of documents relevant to his request, as to which no exemption has been upheld.

I certify that the 149 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

Signed: Josephine McKay
  Associate

Date/s of Hearing  3 April 2003 & 27 August 2003
Date of Decision  13 August 2004
Applicant’s Representative      Self          
Respondent’s Representative   Mr MacPherson (3 April 2003)
Counsel for the Respondent     Dr Collins (27 August 2003)
Solicitor for the Respondent     Australian Government Solicitor