Whittaker and Secretary, Department of Foreign Affairs and Trade

[2004] AATA 817

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 817

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/610

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL WHITTAKER

Applicant

And SECRETARY, DEPARTMENT OF FOREIGN AFFAIRS AND TRADE

Respondent

DECISION

Tribunal Senior Member K L Beddoe

Date6 August 2004  

PlaceBrisbane

Decision

The Tribunal decides:

(a)      the decision under review is set aside;

(b) documents 39, 40, 43 and 44 are not exempt documents within the terms of section 33 of the Freedom of Information Act 1982;

(c)      the matter is remitted to the respondent to give effect to the Tribunal’s decision;

(d)      the operation of the Tribunal’s decision is stayed for seven days from the date hereof; and

(e)      these proceedings have terminated in a manner favourable to the applicant.

[Sgd] KL Beddoe

Senior Member

CATCHWORDS

FREEDOM OF INFORMATION – access to documents – exemptions - section 33 of the Freedom of Information Act 1982 - whether release of the documents sought would bring into question Australia’s relationship with other countries – agrèment process for appointment of international Head of Mission - process of agrèment is conducted in confidence - where the process is successful there is a reasonable expectation that the essence of the information will be put on the public record – exemption not properly claimed

Freedom on Information Act 1982 s 33

Public Service Act 1999 ss 39, 41

Re Maher and Attorney-General’s Department (1985) 7 ALD 731

Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 264

Commonwealth of Australia v Hittich (1994) FCR 152

Attorney-General’s Department and Anor v Cockroft (1986) 64 ALR 97

REASONS FOR DECISION

6 August 2004   Senior Member K L Beddoe          

1.      In February 2003, the applicant applied to the respondent department for access to certain documents under the Freedom of Information Act 1982 (“the Act”).  The documents for which access was sought were particularised as follows:

“1.Any correspondence between foreign governments or their representatives; overseas head of missions; the Minister for Foreign Affairs and Trade; and the Department of Foreign Affairs and Trade concerning the appointment or prospective appointment of Dr John Herron as ambassador to Ireland and the Holy See, or any other diplomatic post in the past two years;

2.Any documents held by DFAT relating to Dr Herron’s appointment or prospective appointment for any diplomatic post in the past two years.”

2.      In response the respondent’s decision-maker granted access to some documents and claimed exemption for other documents.  The detail of the decision is set out in schedules attached to the letter notifying the decision (T11).

3. The applicant sought internal review of that decision in accordance with section 54 of the Act (T13).

4.      By letter dated 21 May 2003, the respondent advised the applicant of a number of corrections to the details in the primary decision, as previously notified, and then affirmed the primary decision.

5.      By an application for review dated 15 July 2003, the applicant made a valid application for review in this Tribunal.

6.      In lodging the application for review the applicant said that he only sought review in respect of four of the twenty-eight documents said to be exempt from access by the primary decision-maker.  Those documents were identified as follows:

(a)Document 39 – Cable of 22 March 2001;

(b)Document 40 – Cable of 9 March 2001;

(c)Document 43 – Cable of 21 February 2001; and

(d)Document 44 – Cable of 20 February 2001.

7. The respondent relies upon exemptions from access found in section 33 of the Act. So far as it is relevant the section reads as follows:

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

(a)       would or could reasonably be expected to, cause damage to:

(i)        …

(ii)       …

(iii)      the international relations of the Commonwealth; or

(b)would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organisation 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.”

8.      At the hearing Mr Barlow appeared for the applicant and Mr Dubè appeared for the respondent. 

9.      Evidence before the Tribunal is found in the following exhibits and in the oral evidence of the following witnesses:

§Exhibit A     Book entitled “East Timor in Transition” published by the respondent department, dated May 2001

§Exhibit B     Extracts from Commonwealth Protective Security Manual 2000

§Exhibit C     Affidavit of Paul Whittaker dated 18 November 2003

§Exhibit 1     Affidavit of Douglas Owen Chester dated 12 November 2003

§Exhibit 2     Affidavit of Louise Helen Hand dated 27 October 2003

§Exhibit 3     Section 64 documents – a section 35(2) order applies to this exhibit.

10.     Oral evidence was given by Mr Chester, a Deputy Secretary of the respondent department who has held other appointments including an appointment as an Australian High Commissioner.

11.     Oral evidence was also given by Ms Hand, the Chief of Protocol for the respondent department who has also held other appointments including as an Australian Ambassador.

12.     The applicant called oral evidence from Gregory Samuel Robert Wood, a former Deputy Secretary of the Department of Prime Minister and Cabinet and a former Australian High Commissioner to Canada, who was the High Commissioner at the relevant time.

13.     In Exhibit 1, Mr Chester identified the relevant documents as follows:

(a)Document 39 is a cable, dated 22 March 2001, sent by an Australian High Commissioner to the respondent department reporting on communication received from an overseas Government;

(b)Document 40 is a cable, dated 9 March 2001, sent by an Australian High Commissioner to the respondent department attaching communication received from an overseas Government;

(c)Document 43 is a cable, dated 21 February 2001, sent by an Australian High Commission to the respondent department reporting on a communication received from an overseas Government; and

(d)Document 44 is a cable, dated 20 February 2001, sent by the respondent department to an Australian High Commission requesting specific communications be made with an overseas Government.

14.     In the course of examination in chief, Mr Chester agreed that all found documents related “to the possible posting of Senator Herron to Canada”.

15.     Mr Chester impressed me as a witness of truth and I accept that his evidence was full and frank.  He said that there is a long standing practice in the broader international community that documents of the nature of the documents under consideration are kept confidential so that countries can consider, in an unfettered way, the possibility of or the request for a particular person to be appointed as a country’s Head of Mission or head of post.  Mr Chester acknowledged that there is quite often public speculation about possible Head of Mission appointments but did not go so far as to confirm the applicant’s evidence about media speculation in March/April 2001 about Senator Herron’s prospective appointment to a posting as High Commissioner to Canada.  That appointment carries with it appointment as Commissioner to Bermuda.

16.     It is clear from Mr Chester’s evidence, and I accept, that there is a legitimate concern that release of agrèment documents would bring into question Australia’s relationship with other countries.  There would be uncertainty as to whether similar documents, involving other countries, would also be released.  Also, in relation to the particular documents, the release of the documents relating to that possible appointment could cause damage to Australia’s international relations with Canada.

17.     I also accept that the relevant documents were treated as confidential documents inside the respondent department so that only a small number of the department’s officers would have access to the subject documents on a need to know basis.

18.     In his affidavit Mr Chester sets out the departmental procedure for Head of Mission appointments.  While Mr Chester did not say there were different processes for internal and external to the department appointments I am satisfied that the relevant process here, being appointment of a person not employed in the department is really a separate process to the process of appointing persons who are already employees of the department.

19.     In particular, I am satisfied that for nominations of persons not employed by the department, the respondent must comply with any direction by the Minister for Foreign Affairs that he engage a particular person as an Australian Public Service employee so that the person may become a Head of Mission (section 39 of the Public Service Act 1999).

20.     I am also satisfied that the following procedures are relevant to the proposed appointment of an Australian Head of Mission where the nominee is not an Australian Public Service employee:

“(a)MINISTERIAL APPROVAL – The Secretary of the Department submits a Ministerial submission to the Minister for Foreign Affairs, copied to the Minister for Trade.  The submission requests the Minister’s approval to the nomination and for submitting the nomination to the Prime Minister.  Apart from the Ministers, only selected advisers in their offices are given access to the submission (normally the Chiefs of Staff).

(b)PRIME MINISTERIAL APPROVAL – A letter from the Minister seeking the Prime Minister’s approval to the nomination is hand delivered to the Prime Minister’s Office.  If the Prime Minister approves the nomination, he replies in writing to the Minister for Foreign Affairs.  The letter is hand delivered to the Minister’s Office.  The Prime Minister’s letter is sent to the Secretary and then to the Assistant Secretary of the Staffing Branch.

(c)NOMINEE ADVISED – The Assistant Secretary, Staffing Branch contacts the nominee advising of the Prime Minister’s decision and that the decision is to still to be regarded as Protected (the classification ‘Protected’ is used in relation to information the release of which could reasonably be expected to cause harm to the Government, Department or individuals).

(d)REFERRAL TO PROTOCOL – the Assistant Secretary, Staffing Branch sends a Protected minute to the Chief of Protocol requesting that Federal Executive Council approval and agrèment for the appointment (from the host government) be sought.

(e)PUBLIC NOTIFICATION – Once both Federal Executive Council approval and agrèment have been obtained, a press release is issued by the Minister for Foreign Affairs.” 

21.     The documents in question before the Tribunal are documents that came into being in the course of the agrèment process.

22.     I accept Mr Chester’s evidence that until Prime Ministerial approval is received for the proposed nomination, only four senior officers in the respondent department are involved in the process.  His evidence is silent as to any persons outside the respondent department and ministerial office who might also be involved.  I also accept that the secure arrangements reflect the high risk of damage to Australia’s international relations should the nomination process be compromised.  There is also a reasonable desire to ensure that the nomination is not made known prior to Executive Council approval and that the nomination process proceeds to agrèment with the receiving country without public disclosure of the nomination.

23.     Mr Chester acknowledged that in the particular circumstances of this case the procedures adopted had not prevented public speculation about the proposed appointment.  He also acknowledged that he was not aware of any protest to the respondent by the Canadian or United Kingdom governments.

24.     In cross-examination, Mr Chester was referred to paragraph 18 of his affidavit (Exhibit 1).  That paragraph reads as follows:

“Most importantly, these established procedures ensure that foreign countries may examine requests for agrèment and make judgements privately without inappropriate speculation from other parties.  The procedures also ensure that where nominations are rejected for sensitive reasons, the foreign country is able to do so without explanation to the requesting country or other parties.  In my view, subjecting a foreign country to public interrogation as to why a particular nominee was rejected would damage our bilateral relationship with that country and cause a loss of confidence (on the part of that country and other foreign countries) in our ability to secure confidential information with which we have been provided.”

25.     Mr Chester was then asked some questions arising from paragraph 18.  The transcript includes the following questions and answers:

“Q:Yes.  And that’s what the receiving government would expect to happen, isn’t it?

A:In most instances, nominations do proceed; that’s correct.

Q:Yes. So it really doesn’t matter to a receiving government, I suggest, whether or not the letter of acceptance or some cable notifying an oral acceptance subsequently is released to the common public?

A:Again, which it’s – we’re looking at the difference between specific cases and the more general, and the impact that it had – the more general impact the release has on our dealings with other countries.

Q:Well, can you answer my question?  My question is relating to a government of a country that has accepted a nominee; it really doesn’t matter to the government of that country, does it, that the letter of acceptance or some oral acceptance is subsequently published to the general public in the sending country?

A:That, I’m not sure.  It may.  I don’t know the answer to that.  One could imagine that, in many instances, it wouldn’t matter; in some it may.  Some countries who – some countries that, you know, have in mind the Vienna Convention and the protocols associated with it, may see this as a breach of those conventions.

Q:A letter of rejection of a nominee would certainly be sensitive, wouldn’t it?

A:Potentially, yes.

Q:Can I suggest that you included paragraph 18 of your affidavit in the affidavit to give the impression that some of these documents might contain a rejection of Dr Herron’s nomination and were therefore sensitive on that basis?

A:No, not at all.

Q:In fact, to pretend or to give the impression in a publicly available affidavit that a foreign government rejected a nomination for a diplomatic post when it did not has more potential to harm relations with that government than to release the letter of acceptance, doesn’t it?

A:That’s certainly not what paragraph 18 was proposed to do.

Q:Well, can you answer my question? 

A:Paragraph 18 is merely a statement of the procedures and how they work.

Q:Can you answer my …?

A:What the general practice is around the world.

Q:Would you answer my question please, Mr Chester?

A:I’m sorry, could you ask it again, sorry?

Q:To give the impression in a publicly available affidavit that a foreign government has rejected a nominee for an appointment to a diplomatic post when it did not is – has greater potential to harm relations with that government than to publish that government’s letter of acceptance?

A:That could be the case, but as I said, that’s not what paragraph 18 was meant to portray.”  (Transcript 20-21)

26.     Mr Chester agreed that some documents lose their sensitivity as time goes by.  He also said that the Vienna Convention on Diplomatic Relations only requires a receiving government to accept or reject a nomination of Head of Mission. The convention does not require the receiving government to give reasons for its decision.

27.     Mr Chester was of the opinion that granting access to the subject documents would break the long standing convention that the communications are treated confidentially and kept confidential.  He was also of the view that granting access could harm relations with Canada, the United Kingdom and a host of other countries.  That evidence is contradicted by Exhibit A.  Mr Chester was able to confirm the publication of the book in 2001 but was unable to say much more about it but did seek to distinguish the previously confidential documents released by the publication in the book as documents relating to national security whereas, he said, the documents in question do not relate to national security.

28.     Exhibit 2 is an affidavit by Ms Hand who is the Chief of Protocol in the respondent department. Prior to that appointment she was the Australian Ambassador to Cambodia.  As Chief of Protocol and Assistant Secretary Protocol Branch in the department she manages the process of agrèment for appointment of Heads of Mission on behalf of the Australian Government.  I accept her evidence that this is a controlled confidential process.  Strict procedures are in place to protect the integrity of the process and any leakage or associated public speculation could prejudice an agreement being reached and also raise broader concerns about Australia’s management of confidential information.

29.     Agrèment is the diplomatic process by which a sending government of a country arranges with a receiving government of a country for consent to the appointment of a new head of the sending country’s diplomatic mission in the receiving country.  Such an appointment can only take effect after the receiving country has consented to the person to be appointed as head of mission.  Consent may be refused or withheld and no reason need be given.

30.     It is clear on the material before the Tribunal, and I so find, that until the appointment of the Head of Mission is put on the public record by the Minister, the process of obtaining agrèment with the receiving Country is conducted on a strictly confidential basis.

31.     Ms Hand described the agrèment procedures in more detail but it is not necessary that I make more specific findings of fact about the procedure except to say that communication between governments is through the Head of Mission in the receiving country with communication being effected by encrypted cables.

32.     Ms Hand also described in her affidavit the procedures when Australia is the receiving country. Those procedures are also conducted on a controlled in confidence basis.

33.     The Australian practice in relation to the agrèment process appears to be consistent with general international diplomatic practice cited in Ms Hand’s affidavit and I so find. 

34. I accept that at the time the subject documents were created they were confidential in character and formed part of a process in which confidentiality was protected at each step in deference to the receiving country and also, according to Ms Hand, in deference to the nominee. However, the respondent does not claim exemption in terms of section 41 of the Act.

35.     The essence of Ms Hand’s evidence is her opinion that disclosure of the information in the subject documents will damage diplomatic relations between the Australian Government and governments of other countries because the integrity of the agrèment process would be compromised with a possible adverse effect on future agrèment processes with foreign governments (Exhibit 2). In her oral evidence she referred to the confidentiality of the agrèment process as part of the rules of engagement which have to be observed at all times regardless of what the outcome of the process is.

36.     Because Ms Hand was not part of the process in the instant case, I accept her evidence on the basis that she was describing the general practice in relation to the agrèment process but not the fact of what happened in the instant case. I also accept her evidence that the agrèment process is, and is expected to be, a process recognised internationally as requiring that the process be conducted in confidence between the respective governments.

37.     Mr Wood’s evidence drew a distinction between the sensitivity of documents during the agrèment process and the sensitivity of the same documents after the process had been completed on a positive basis.  He was of the opinion that the documents would remain sensitive if there was a rejection of agrèment by a receiving country.

38.     Mr Wood went further and said that a receiving government that had agreed to the appointment would be uneasy as to a failure to disclose documents because there could be an inference of a possible rejection of the nominee by the receiving government.

39.     The following exchange of questions and answers occurred during the cross-examination of Mr Wood.

“MR DUBÈ:     Mr Wood, in terms of that issue, if the document was released now, your view is if the receiving country has said, ‘Yes, we will have the nominee’, you’re of the view that it wouldn’t cause any damage to international relations?--- I think it would be absolutely inconsequential from the point of view of the other country.

Right.  Now, if, in terms of when the confidentiality is lifted on a nomination and a posting, you’ve agreed with me that it’s only when the press release is made, or the press release is announced, that the confidentiality lifts? --- From the point of view of the Australian government, in its dealings with that individual, yes, I think that’s correct, but in point of view of the sensitivity of the other government, to any subsequent release, I think they cease to be sensitive at the time they’ve indicated agreement.

Now, would you agree with me that in terms of a country agreeing to a nomination, that that in itself does not always mean that the posting will go ahead? --- Well, all manner of other considerations can come into play as they can with any personnel appointment.

And would you agree with me that in terms of where a – whilst there may be agreement with a country, that that doesn’t mean that the posting will proceed? --- It may not necessarily do so, but in terms of the receiving country, they have completed the steps that are obligatory on them and maintained confidentiality while they have undertaken that process.”  (Transcript pages 53-54)

40.     In the light of Mr Wood’s evidence it is reasonable to infer that, where a receiving government has agreed to a nominee as Head of Mission of the sending government, the latter government would, in due course, make public the appointment without seeking a further consent from the receiving government.

41.     Exhibit C is an affidavit by the applicant.  He was not called for cross-examination.  The affidavit satisfies me that there was relevant media speculation and discussion at about the time that the subject documents were created. 

Consideration

42. The respondent submitted that each of the documents is an exempt document within the terms of section 33 of the Act but does not claim exemption under any other provision of the Act.

43.     In relation to all the subject documents the respondent says that granting access to each document would or could reasonably be expected to cause damage to the international relations of the Commonwealth. 

44.     Also, in relation to documents 39, 40 and 43 the respondent says granting access to those documents would divulge information communicated in confidence by or on behalf of a foreign government.

45. At the hearing Mr Dubè conceded that the respondent’s claim for exemption of document 44 under paragraph 33(1)(b) of the Act was not a correct claim.

46.     The respondent submits to the effect that the agrèment process is a confidential process conducted as part of Australia’s international relations with foreign governments.  By its own submission the respondent says that the agrèment process remains confidential until such time as the posting actually occurs, in the sense, as I understand the evidence, of when the Minister announces the posting of the Head of Mission. 

47.     That was made clear by the evidence of Ms Hand who illustrated the proposition by reference to her own situation in relation to her posting as Australian Ambassador to Cambodia in these words:

“In the case of my own posting, if I can offer this as an example, I undertook a Head of Mission posting to Cambodia about three years ago simply on the basis that the person for whom agreement had already been received had to pull out at the last moment because of family reasons and I then was the subject of a second agreement process within the space of six weeks.  That earlier acceptance and agreement was never made public and you wouldn’t want it to be.  You wouldn’t want it to be the subject of speculation about somebody’s personal life or career or – no, until that Head of Mission actually is the subject of a Press Release, you would not expect that discussion to be public.”

48. In relation to sub-paragraph 33(1)(a)(iii) of the Act, I accept that this sub-paragraph requires, inter alia, that there be real and substantial grounds for the expectation that harm will occur by granting access to the particular document.

49.     Damage to international relations might reasonably be expected where the disclosure of the document may disclose sensitive information, as in Re Maher and Attorney-General’s Department (1985) 7 ALD 731 at 742, so as to cause, or reasonably expected to cause actual and significant damage.

50.     In Re Aldred and Department of Foreign Affairs and Trade (1990) 20 ALD 264, Spender J made it clear that the concept of damage in paragraph 33(1)(a) was not to be confined and may include damage to intangibles such as personal relationships between high level officials and politicians. His Honour also made it clear that there is no public interest test in section 33. It is also clear that the sub-paragraph is confined to damage to the international relations of the Commonwealth.

51.     In Commonwealth of Australia v Hittich (1994) FCR 152 at 154, the Full Court of the Federal Court confirmed that sub-section 33(1) does not provide any basis for a public interest test criterion extending beyond the terms of the section. The Court said that either a document is within the section, in which case it is an exempt document, or it is not.

52.     The applicant submits that the evidence does not support a finding that disclosure of any of the subject documents would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth.  The test is not whether there is a risk of damage to international relations – the test requires a higher degree of certainty (Attorney-General’s Department and Anor v Cockroft (1986) 64 ALR 97 at 106 and 111-112).

53.     It is also the case, submits the applicant, that the test is to be applied to the documents at the time of the Tribunal’s decision and not as at the time the documents were created.

54.     The applicant seeks to support that proposition by reference to the apparent disclosure of sensitive communications in Exhibit A where the respondent, acting with the concurrence of the Minister, published sensitive communications between the Government of Indonesia and the Government of Australia in relation to the 1998 offer by Indonesia to grant its province of East Timor full autonomy.  I accept that this release of documents about East Timor made within three years of the documents being created did not raise issues of damage to the international relations of the Commonwealth because those documents had ceased to be sensitive – the circumstances of East Timor’s constitutional relationship with Indonesia having been resolved, at least at the diplomatic level.

55. These is no evidence before the Tribunal in relation to the view of the receiving governments either in relation to the contemporaneous media speculation referred to in the applicant’s affidavit or the subsequent application by the applicant under the Act. It is clear, on the evidence, that the reviewable decision was made without reference to those governments. While Mr Barlow invited me to draw inferences from the fact of non-consultation about the application I do not do so.

56. In relation to paragraph 33(1)(b) of the Act, the respondent says that documents 39, 40 and 43 are also exempt in terms of the paragraph. The respondent submits that the test is whether the information in the document was communicated in confidence and not whether that information is confidential in character or whether disclosure would amount to a breach of confidence.

57.     It is however relevant, says the respondent, to determine whether the information is in fact confidential information, and whether it was communicated in circumstances importing an obligation of confidence, so as to determine whether the information was communicated in confidence.

58.     The documents in issue contain information which it would be reasonable to infer was expected to form the basis for a public announcement by the sending government and this would be understood to be the case by the receiving government.  That was the normal procedure when the agrèment process had achieved agreement.

59.     It is not, therefore, the information which is confidential, nor, in my view, is the information communicated in confidence, because it is expected by both the receiving and sending governments to be the basis for a public announcement.

60.     What is confidential is the routine process of obtaining of the agreement of the receiving government.  If that agreement is not forthcoming then both the sending government and the receiving would expect that the fact of the agrèment process having been undertaken, and failed to achieve the necessary consent, that the documents fundamental to the failed process would remain confidential.

61.     If on the other hand the agrèment process results in the receiving government consenting to the nominee, as is the usual case, then both governments would expect the fact of nomination and the fact of consent to be made public, at least by implication, on the announcement by the sending government of the appointment of the Head of Mission.

62.     It is the process of agrèment that is conducted in confidence, not the information communicated in that process and I so find.  If the process is successful then there is a reasonable expectation that the essence of the information will be put on the public record by a Ministerial announcement.

63. If, notwithstanding that the agrèment is achieved, the nominee withdraws as in Ms Hand’s example, or the appointment is for example, deferred, then that will not result in section 33 having any operation. The agrèment process having been successful the cloak of confidentiality ceases to exist because both governments expect that will be the case.

64. For these reasons I am not satisfied that the said documents are exempt within the terms of section 33 of the Act.

I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K L Beddoe

Signed:  S Oliver

Associate

Date of Hearing  25 November 2003
Date of Decision  6 August 2004
Counsel for the Applicant         Mr Barlow
Solicitor for the Applicant          Thynne and McCartney
For the Respondent                  Mr Dubè, Australian Government Solicitor