Washington and Department of Immigration and Multicultural and Indigenous Affairs

[2004] AATA 531

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 531

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2003/1748

GENERAL ADMINISTRATIVE DIVISION		)
Re		STUART WASHINGTON

Applicant

And DEPARTMENT OF IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Bell, Member

Date26 May 2004

PlaceSydney

Decision

The Tribunal sets aside the decision under review and in substitution therefor decides that:

1. The letter from the Managing Director of Australasian Correctional Management to Department of Immigration, Multicultural and Indigenous Affairs held at OPF2001/9035 Folio 32-34 is not an exempt document under s43(1)(c)(i) of the Act.

2. The Report from Australasian Correctional Management to Department of Immigration Multicultural and Indigenous Affairs held at OPF2001/9035 Folio 79-92 is an exempt document under s40(1)(d) of the Act.

The matter is remitted to the Respondent with the direction that access be given to the document held at OPF2001/9035 Folio 32-34

[Sgd] Ms N Bell, Member

Administrative

Appeals

Tribunal

 

DIRECTION [2004] AATA 531

ADMINISTRATIVE APPEALS TRIBUNAL      )           

)          N2003/1748

GENERAL ADMINISTRATIVE DIVISION		)
Re		STUART WASHINGTON

Applicant

And DEPARTMENT OF IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DIRECTION

Tribunal  Ms N Bell, Member

Date 31 May 2004

Place Sydney

WHEREAS:

1.    The Tribunal released a written decision in this matter, which was dated 26 May 2004.

2.    It has come to the Tribunal’s attention that there was an error in the decision.

3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.

NOW THE TRIBUNAL THEREFORE ORDERS that:

1.On the cover page, at paragraph 1, the words “The letter from the Managing Director of Australasian Correctional Management to Department of Immigration, Multicultural and Indigenous Affairs” should read “The letter to the Managing Director of Australasian Correctional Management from Department of Immigration, Multicultural and Indigenous Affairs.”

2.At paragraph 37, the paragraph numbered 1 the words “The letter to the Managing Director of Australasian Correctional Management to Department of Immigration” should read “The letter to the Managing Director of Australasian Correctional Management from Department of Immigration, Multicultural and Indigenous Affairs”.

[Sgd]Ms N Bell Member     

CATCHWORDS

FREEDOM OF INFORMATION – exempt documents – whether disclosure of a report will have a substantial adverse effect on the proper conduct of the operations of the Department of Immigration, Multicultural and Indigenous Affairs – whether disclosure of a report would be on balance in the public interest – whether disclosure of a default notice would reasonably be expected to unreasonably affect ACM in respect of its lawful business – decision set aside

Freedom of Information Act 1982 s11, s24A, s 43, s40, s61

Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 at 120

Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163

Re Waterford v Department of Treasury (1983) 5 ALD 193

REASONS FOR DECISION

26 May 2004 Ms N Bell, Member

1.      This is an application to review a decision made by the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) on 5 September 2003 under the Freedom of Information Act 1982 (“the Act”). On 16 May 2002, the Applicant made a request, under section 11 of the Act, for access to, inter alia, “documents concerning default notices issued by the contract administrator, any cure plans, remedy notices, and any notices of force majeure” held by DIMIA. DIMIA identified two documents as falling within the terms of the request, located in folio OPF2001/9035, namely a Letter to the Managing Director of Australasian Correctional Management (“ACM”) from DIMIA (“the Default Notice”) and a Report from ACM to DIMIA (“the Report”).

2. Access to the whole of these documents was denied by DIMIA on the basis of exemptions claimed under subsections 43(1)(c)(i) and 40(1)(d) respectively. DIMIA refused access to remedy notices or any notices of force majeure under section 42A of the Act on the basis that these documents do not exist.

3.      The Applicant was represented by Mr Mark Polden, solicitor, of Fairfax Legal Unit and Mr Michael Small of Counsel. The Respondent was represented by Ms Dale Watson of Australian Government Solicitors. The Tribunal had before it the T-documents, an affidavit of the Applicant with annexure marked A1, a Schedule of Exempted Documents marked A2 and an affidavit of Mr Steve Davis, First Assistant Secretary, Unauthorised Arrivals and Detention Division, with annexure marked R1.

4.      Exhibit A1 contains attachments of considerable length including an annual report of Wackenhut Corrections Corporation, an edited version of the Knowledge Enterprises report, a report released in February 2001 by the then Immigration Minister titled “Inquiry into Immigration Detention Procedures”, a report of the human rights sub committee of the Federal Parliament’s Joint Standing Committee on Defence, Foreign Affairs and Trade titled “A Report on Visits to Immigration Detention Centres”, submissions to the HREOC National Inquiry into Children in Immigration Detention, a transcript of a Four Corners report and sections of Hansard as well as various media reports and press releases. 

EXEMPTIONS CLAIMED BY THE RESPONDENT

5. DIMIA’s claim for exemption of the documents requested is based on the following provisions of the Act.

6. Firstly, DIMIA refused access to remedy notices or any notices of force majeure under section 24 of the Act on the basis that these documents do not exist. Section 24 of the Act provides:

“24      Requests may be refused if documents cannot be found or do not exist

An agency of Minister may refuse a request for access to a document if:

(a)       all reasonable steps have been taken to find the document;   and

(b)       the agency or Minister is satisfied that the document:

(i)        is in the agency’s or Minister’s possession but cannot   be found: or

(ii)       does not exist.”

7. DIMIA refused access to the Report on the basis disclosure would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of DIMIA under section 40(1)(d) of the Act. Subsection 40(1)(d) of the Act provides:

“40      Documents concerning certain operations of agencies

(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; or

…

(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.”

8.      The Respondent submitted that disclosure of the report would reveal ways in which escapes could be carried out or assist those who might seek to assist detainees to escape from immigration centres. Mr Davis in his affidavit stated that:

“4.I am of the view that the contents of this document reveal ways in which detainees could escape from immigration detention and that this information could assist detainees or those assisting them, in effecting escapes from Immigration detention. Such escapes, or any such attempted escapes, severely prejudice the proper and efficient conduct of detention centres. They can also lead to a risk of injury to those escaping or attempting escape, as well as staff employed at the detention centres as well as other detainees in the centres.

5.The risk of escape from a detention centre is an ongoing risk. While the document in question is not recent, a number of the observations made in the document still have the capacity to assist those wanting to plan an escape. The fact that Australasian Correctional Management (“ACM”), the organisation which produced the document, is no longer the provider of detention services at detention centres also does not diminish the risks should this information be released.

6.… I believe that the security and safety issues which I have identified outweigh any public interest to this information being disclosed.

…”

9. The Default Notice, according to DIMIA, is exempt under section 43(1)(c)(i) of the Act on the basis that disclosure would or could reasonably be expected to unreasonably affect ACM adversely in respect of its business or commercial affairs. Subsection 43(1)(c)(i) provides:

“43      Documents relating to business affairs etc.

(1)A document is an exempt document it its disclosure under this Act would disclose:

…

(c)information (other than trade secrets or information to which paragraph  (b) applies) concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs or an organisation or undertaking, being information:

(i)the disclosure of which would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business, commercial or financial affairs; or

…”

10.     In his affidavit, Mr Steve Davis stated that:

“8.ACM advised the Department that the release of this document could be used by a competitor to diminish ACM’s business reputation which would clearly harm ACM’s business.  Furthermore, in the absence of any explanation accompanying the document, its disclosure has the potential to mislead ACM’s present and future customers as well as the public as to its ability to adequately perform its contractual obligations.  This would also be harmful to ACM’s reputation both in relation to such present and future customers as well as to the public generally.

9.…taking into account the adverse effect the disclosure could have on ACM in so far as it could unfairly impact upon ACM’s ability to compete with the competitors in the market and that it could diminish its reputation with present and future clients, I consider that any public interest in the disclosure of the document does not outweigh the adverse effect on ACM in relation to its business and commercial affairs. I therefore believe that such disclosure would unreasonably affect ACM.”

11.     In a letter dated 30 May 2004 (annexed to Exhibit R1), Ross Millican, Managing Director of ACM outlined ACM’s advice to DIMIA regarding the release of the Default Notice.  The letter states:

“We confirm that as set out in out letter to you dated 2 April 2003, ACM objects to the disclosure of the Default Notice issued to it on 20 August 2001 (“the Default Notice”), on the basis that the Default Notice is an exempt document within the meaning of section 43 of the Freedom of Information Act 1982.

As you may be aware, on receipt of the Default Notice, ACM used its best endeavours to and did in fact cure the alleged default that was the subject of the notice within the period of 30 days in accordance with clause 7.6.1(b) of the General Agreement dated 27 February 1998 between the Commonwealth of Australia and Australasian Correctional Services Pty Limited.

Having done so, ACM considers that disclosure of the Default Notice now would be a release of information concerning its business affairs which would (or could be expected to) unreasonably affect ACM adversely in respect of its lawful business.

By way of example, it would be possible for ACM’s competitors to use information contained in the Default Notice to suggest or allege that ACM could not be relied upon by potential contract administrators to adequately perform its contractual obligations. Such use would clearly harm ACM’s business.

More generally the disclosure of the Default Notice without further explanation has the potential to mislead ACM’s customers (present and future) and the public as to its ability to adequately perform its contractual obligations. Again, such use would clearly be harmful to ACM’s reputation.”

12.     Ms Watson for the Respondent submitted that under a provision of the general agreement between ACM and DIMIA, DIMIA could issue a default notice upon certain eventualities occurring, which provided that the potential or alleged default be rectified within a particular period of time. In ACM’s view, according to Ms Watson, rectification was satisfactorily achieved by them with regard to the notice in question.  Ms Watson submitted that disclosing the Default Notice without more could lead to an incomplete and possibly misleading picture of the situation. 

13.     Ms Watson submitted that disclosing the Default Notice may cause some harm to ACM, by either competitors or by adversely affecting its reputation. She submitted that it is reasonable to expect that a document issued between a contracting party and ACM as the service provider, alleging a potential breach of the contract, may be used by a competitor in an unfair manner to indicate that ACM is not a reputable company or one that is not able to provide good service under a contract.

14.     Ms Watson conceded that there have been a number of instances where there has been criticism of ACM in the public domain. However, she emphasised that this criticism occurs as a result of particular interest in the area of detention centres as it is a highly emotive issue.  She submitted that the question of whether ACM complied with its contractual obligations is a matter between the Commonwealth and ACM.

15.     In relation to the submission of the Applicant that, as ACM is no longer the contractor, the risk to its business is reduced, Ms Watson asserted that ACM is still a provider of similar services and still has an ongoing concern in relation to its reputation, its market share and its competitiveness with other enterprises. In the Respondent’s view, the fact that ACM is no longer providing services to DIMIA does not affect those general concerns by ACM and the risk that may arise to its business if the Default Notice is disclosed.

APPLICANT’S CASE

default notice

16.     The Applicant’s case with regard to the claimed exemption of the Default Notice is summarised as follows, in the Applicant’s written submissions:

“10.Firstly, there has been no provision of information on which the decision maker could make a rational evaluation of the reasonableness of any prejudice to the business of ACM. There is no evidence as to whether there will be any prejudice at all let alone the reasonableness of any such evidence, it is not possible for the decision maker to quantify any such prejudice…

…

11.On the information provided by ACM, it is submitted that the decision maker would not be able to come to the decision that the effect on the lawfully business will be substantial rather than trivial.  There is simply nothing but an unsupported allegation.  Mere embarrassment is not enough.

12.In this regard the whole of the circumstances must be considered to see whether the effect is unreasonable.  The whole of the circumstances have not been provided by ACM.  We have only the bald assertion that disclosure of a Default Notice would be used by competitors or mislead customers and the public.

13.In ACM’s letter, we have an objective fact that there was a Default Notice and an objective fact that it was complied with having regard to clause 7.6.1(b).  However, no basis is provided to reasonably expect any causal nexus between those two objective facts and a consequence of unreasonable adverse effect.  Nothing in the affidavit reveals whether it was the result of a systemic fault or a simple one off mistake.

14On these facts, the decision maker can not make an evaluation as to whether the effect is reasonable or irrational or whether it is a possibility or a probability.  Nothing has been provided by ACM apart from bald assertions…

As a result it is not possible on these facts to quantify the degree of the effect.  It is not possible to evaluation whether an effect if any will be substantial or trivial.

15.To the contrary, in light of the fact that the Default Notice has been complied with, ACM has not stated any manner in which a competitor could use such information to substantial effect.

…

18When one examines the affidavit of the decision maker Steve Davis, it is clear that he has accepted the information from ACM without question and has based his decision solely on that information.  The officer’s opinion in that sense should be accorded no weight by the Tribunal and the assertions of ACM should stand or fall on their own.”

report from acm

17. The Applicant submitted that, as provided for at section 61 of the Act, the onus of establishing that the decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the Applicant is clearly on the Respondent (Re Waterford v Department of Treasury (1983) 5 ALD 193) and in this case the Respondent has not discharged that onus. The Applicant submitted that the Respondent’s reasons amount to nothing but unsupported assertions regarding the effect of disclosure and thus the decision maker is incapable of making a rational decision as to whether the disclosure would or could result in substantial or adverse effects.

18.     The Applicant submitted that there is nothing in the evidence to show how disclosure of the Report would facilitate detainees escaping other than the unsupported assertion that the material would assist in escapes by detainees. The Applicant in his written submissions stated that “[t]he evidence does not specify what measures are discussed or if appropriate strategies are under consideration or have been implemented.”

19. The Applicant addressed the issue of public interest under section 40(1)(d) in his written submissions as follows:

“28 s40(1)(d) has no application to a document in respect of a matter in the document the disclosure of which would on balance be in the public interest: 240(2). In the event that the report shows deficiencies in the performance of ACM, it is submitted that this should be a matter for public scrutiny in the public interest. It is stressed that the statements of objects in s3 of the Act together with s11 implicitly endorses such concerns by stressing the value of access.

29.      Furthermore there are additional benefits from allowing disclosure based on public interest concerns.  Such considerations include the scrutiny of government administration and promotion of public debate on government action.

30 In addition to the structure of the Act, the applicant expresses provides (sic) matters via affidavit which weigh in favour of disclosure. It is clear that the matter of detainees in current Australia is of critical interest to the everyday Australian. There is indisputably a very high public interest in these matters. I refer the Tribunal to the affidavit of the applicant in this regard.”

CONSIDERATION

report

20. Subsection 40(1)(d) exempts a document if its disclosure could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

21.     There is no question that if the document did contain information which would or could aid in escapes and therefore jeopardise the safety of detainees and employees of detention centres then the disclosure of the Default Notice would have a substantial and adverse effect on the proper and efficient conduct of the operations of DIMIA.  The Respondent provided little evidence as to how information disclosed in the document would have this effect and asserted merely that the disclosure would or could assist in the escape of detainees. Mr Davis stated in his affidavit that “contents of this document reveal ways in which detainees could escape from immigration detention…while the document in question is not recent, a number of the observations made in the document still have the capacity to assist those wanting to escape.”

22. I agree that the Respondent’s evidence was scarce. However, the Tribunal has had access to the documents under section 64 of the Act. After assessing the Report, I acknowledge the difficulty the Respondent faced in providing adequate evidence without revealing the contents of the document.

23.     I determine that the information contained in the Report could or would reasonably be expected to assist detainees escape. The Report contains specific information which indicates vulnerable security points.  This information may reasonably assist in guiding detainees to areas and ways to facilitate an escape.     

24.     Therefore, I find that the Report would or could reasonably be expected to have a substantial adverse effect on the proper and efficient conduct of the operations of DIMIA.

25. However, I also must consider the operation of subsection 40(2) of the Act. Subsection 40(2) provides that section 40 does not apply to a document the disclosure of which would, on balance, be in the public interest. I must balance the adverse effects of disclosure with the public interest.

26.     Detention centres and detainees is a live issue in Australia.  This is demonstrated through the many media reports as well as Hansard and Parliamentary reports provided by the Applicant.  The topic of detention centres in Australia is a highly emotive and important issue to the Australian public and generates a high level of public interest

27.     This issue is also of public interest due to the substantial amount of public funds paid to ACM during the period they were contractually obligated to provide services to the Commonwealth Government.  The Wackenhut Corrections Corporation Annual Report, ending the fiscal year 2002, states that DIMIA paid fees to ACM equivalent to 11% of Wackenhut’s consolidated revenue of US$568.5 million in 2002 and fees equivalent to 11% of US$562 million in 2001.  (Exhibit A1; Annexure B, pg. 36) This amounts to approximately A$100 million each year. This is a substantial amount of public funds and the Commonwealth Government is accountable to the public in its expenditure.  There is a high level of public interest in the expenditure of a large amount of the Federal budget to a private enterprise which is a wholly US owned subsidiary.

28.     The Respondent argued that the contractual obligations between ACM and DIMIA concern only those two parties and are not in the public interest. I do not agree with this assessment. 

29.     There is strong argument on both sides and therefore, balancing the two competing interests is a difficult task.  However, considering that the adverse effect on the operations of DIMIA concerns the security and safety of detainees and detention centre staff, I conclude that the Report should, on balance, be exempt.  A key component of running a detention centre is maintaining a secure environment.  Releasing the Report would place into the public domain information which identifies weaknesses and vulnerabilities in that environment.  Releasing this information would have a substantial adverse effect on the proper and efficient conduct of the operations of detention centres. I find that this effect outweighs the public interest.

default notice

30. With respect to the exemption claimed under section 43(1)(c)(i), the test is whether in the opinion of the decision-maker, having regard to the information before the decision-maker “the disclosure…would or could reasonably be expected to unreasonably affect [ACM] adversely.” In this context the word “unreasonably” should be given its ordinary meaning. (Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another (1992) 108 ALR 163)

31.     I find that it is reasonable to expect that disclosure of the Default Notice could affect ACM in its business affairs as it can reasonably be expected that the disclosure of information alleging poor performance could adversely affect a business.  However, an assessment of whether disclosure is unreasonable must take into account all relevant factors (Colakovski v Australian Telecommunications Corporation (1991) 100 ALR 111 at 120). As stated in Searle (supra) “if it be in the public interest that certain information be disclosed, that would be a factor to be taken into account in deciding whether [ACM] would be unreasonably affected by the disclosure; the effect, though great, may be reasonable in the circumstances.”  

32.     In reaching a determination as to whether ACM could or would be unreasonably adversely affected by disclosure of the Default Notice, public interest factors must be taken into account.   In these circumstances, it is relevant to consider the substantial amount of information, relating to ACM’s performance, already in the public domain. It is known that ACM lost the contract with DIMIA and that default notices were issued to ACM.  In addition, information similar in content and subject matter to that found in the Default Notice is already in the public domain and has been extensively discussed and critiqued.  Such information includes:

·On 18 October 2000, DIMIA engaged consultancy Knowledge Enterprises to critically review major incidents in June 2000 which resulted in breakouts of detainees from three detention centres.  (‘Department of Immigration and Multicultural Affairs, Review of Major Incidents at Woomera, Port Hedland and Curtin IRPC’s’, Exhibit A1, Annexure C)

·In August 2000, during a riot at Woomera buildings were destroyed and ACM staff were injured.  (‘Department of Immigration and Multicultural Affairs, Review of Major Incidents at Woomera, Port Hedland and Curtin IRPC’s’, Exhibit A1, Annexure C)

·In February 2001, a report released by the former Secretary of the Department of Foreign Affairs, Philip Flood titled “Inquiry into Immigration Detention Procedures” found staff at Woomera had treated detainees like “criminals”.  (Exhibit A1, Annexure D)

·In a submission to the HREOC National Inquiry into Children in Immigration Detention dated 1 July 2002, it was stated that Woomera was “under resourced in training members and medical supplies and that children had been endangered in riots”.  (Exhibit A1, Annexure F)

·In a ‘Four Corners’ report entitled ‘About Woomera’ problems occurring at Woomera and issues associated with the running of the detention centre were described including escapes, unsafe staffing levels, limited resources and lack of staff and fire fighting equipment.  The report questioned allocation of funds and alleged that ACM was making $1 million dollars a month in profit, although staffing levels were unsafe and security of both detainees and staff was in question. (Exhibit A1, Annexure G)

33.     While these reports could be said to be extensive and certainly do not reflect well on ACM, they generally do not contain the same level of detail, nor do they emanate from the Commonwealth Government as does the Default Notice to which access is sought.     

34. I acknowledge ACM’s concerns regarding the effect of release of the Default Notice on its business reputation. However, under section 43(1)(c)(i) of the Act I must consider whether that effect is unreasonable. Mr Steve Davis in his affidavit states that ACM is concerned that release of the Default Notice could be used by a competitor to diminish its business reputation. The Applicant submitted that this evidence suggests it is not disclosure which will have an adverse effect on ACM but that some malicious third party, being a competitor will exploit the disclosure. It was submitted by the Applicant that this effect is too remote from the disclosure to be considered an unreasonable effect.

35.     The material outlined at paragraph 28 of these reasons as well as the media reports annexed to Exhibit A1 is clear evidence of a strong general public interest in the operation of detention centres in Australia.  There is also a general public interest in the operations of ACM as a wholly US owned subsidiary, contracted to the Commonwealth Government.  

36.     In consideration of these public interest factors, I find that disclosure of the Default Notice is in the public interest.  On balance, considering the effect of disclosure on the reputation of ACM, the relevant public interest factors, the amount of material and information already in the public domain relating to ACM’s performance as well as the substantial amount of public funds paid to ACM, as discussed earlier in these written reasons, I cannot find that releasing the Default Notice will unreasonably affect the current status of ACM’s reputation in the market place.  Although disclosure of the default notice could affect ACM’s reputation, this effect is not unreasonable in the circumstances.

DECISION

37.     The Tribunal sets aside the decision under review and in substitution therefor decides that:

1.The letter to the Managing Director of Australasian Correctional Management to Department of Immigration Multicultural and Indigenous Affairs held at OPF2001/9035 Folio 32-34 is not an exempt document under s43(1)(c)(i) of the Act.

2.The Report from Australasian Correctional Management to Department of Immigration Multicultural and Indigenous Affairs held at OPF2001/9035 Folio 79-92 is an exempt document under s40(1)(d) of the Act.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed: A. Krilis
  Associate

Date/s of Hearing  7 April 2004
Date of Decision  26 May 2004
Counsel for the Applicant         Mr Michael Small
Solicitor for the Applicant          Mr Mark Polden   
Solicitor for the Respondent     Ms Dale Watson