Xenophon and Secretary, Department of Defence (Freedom of information) - [2019] AATA 3667

Xenophon and Secretary, Department of Defence (Freedom of information) [2019] AATA 3667 (20 September 2019)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2017/0067
Re:Nick Xenophon
APPLICANT

AndSecretary, Department of Defence
RESPONDENT

DECISION
Tribunal:Justice S Kenny, Deputy President
Date:20 September 2019
Place:Melbourne

The Tribunal determines:
1.The decision under review be varied in so far as documents, or parts of documents, have been subsequently disclosed or rendered irrelevant by agreement of the parties.
2. The respondent is to disclose to the applicant the parts of documents identified in the “Schedule of publicly available information 14 May 2018” annexed to these reasons.
3.In other respects the decision under review is affirmed in so far as it concerned the exemption under s 33(a)(iii) of the Freedom of Information Act 1982 (Cth).

………………
Justice S Kenny, Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – request for access to documents – whether documents or parts of documents exempt under ss 33a(iii) or 33(a)(ii) – whether disclosure would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth or the defence of the Commonwealth – decision under review varied in so far as documents, or parts of documents, have subsequently been disclosed or rendered irrelevant by agreement of the parties and in other respects affirmed in so far as it concerned the exemption under s 33(a)(iii)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 35
Freedom of Information Act 1982 (Cth) ss 3, 11, 31, 33, 47C, 47D, 47E, 55K, 57A, 58E, 60A, 60AA, 61, 63, 93A
CASES
A v Hayden [1984] HCA 67; 156 CLR 532
Arnold v Queensland (1987) 13 ALD 195
Attorney-General’s Department v Cockcroft [1986] FCA 35; 10 FCR 180
Bradford and Australian Federal Police [2016] AATA 775
Church of Scientology v Woodward [1982] HCA 78; 154 CLR 25
Commonwealth v Hittich (1994) 53 FCR 152
Cordover and Australian Electoral Commission (Freedom of Information) [2015] AATA 956
Fisse v Secretary, Department of the Treasury [2008] FCAFC 188, 172 FCR 513
Jorgensen v Australian Securities and Investments Commission [2004] FCA 143; 208 ALR 73
Re Aldred and Department of Foreign Affairs and Trade [1990] AATA 833
Re Bui and Department of Foreign Affairs and Trade [2005] AATA 97; 85 ALD 793
Re Lobo and Department of Immigration and Citizenship (2010) 124 ALD 238
Re Maher and Attorney-General’s Department (1985) 7 ALD 731
Re Toren and Secretary, Department of Immigration and Ethnic Affairs [1995] AATA 60
Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111
Secretary, Department of Foreign Affairs and Trade v Whittaker [2005] FCAFC 15
Waterford v Department of the Treasury (1985) 5 FCR 76
SECONDARY MATERIALS
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (version 1.4, December 2016)
REASONS FOR DECISION
Justice S Kenny, Deputy President
20 September 2019
INTRODUCTION

This is an application for review of a decision of the Australian Information Commissioner (AIC) made on 7 December 2016, pursuant to s 55K of the Freedom of Information Act 1982 (Cth) (FOI Act), to vary and affirm a decision made by the Department of Defence (Defence). This application is made under s 57A of the FOI Act.
On 27 November 2015, Defence refused to grant a request made by the applicant to access certain documents relating to a Competitive Evaluation Process (CEP) for the selection of a partner to design and build the next generation of Australian submarines (Future Submarines) on the basis that the documents were exempt from disclosure under the FOI Act.
For the reasons set out below, the Tribunal will vary the decision made by the AIC in so far as documents, or parts of documents, have been subsequently disclosed or rendered irrelevant by agreement of the parties; and the Tribunal will direct that the respondent disclose to the applicant the parts of documents identified in the “Schedule of publicly available information 14 May 2018” annexed to these reasons. In other respects, the decision under review will be affirmed in so far as it concerned the exemption under s 33(a)(iii) of the FOI Act.
BACKGROUND
In 2015, the Australian Government commenced a CEP to select an international partner to design and build the Future Submarines (also known as the SEA 1000 Future Submarine Program CEP or SEA 1000). In broad terms, the CEP involved Defence determining the specific issues or requirements to which a response was needed, selecting a small number of potential suppliers (proponents) to which to release the relevant documentation, receiving their responses, and then making a recommendation to the Australian Government about the preferred proponent to deliver the Future Submarines. Direction des Constructions Navales Services (DCNS – the French proponent), Thyssen Krupp Marine Systems (TKMS – the German proponent) and the Japanese Government (Japan) were each invited to participate in the process. An expert advisory panel was established to oversee the CEP. On 26 April 2016, the Australian Government announced DCNS was the successful proponent in the CEP for the design of the Future Submarines.
On 21 September 2015 the applicant applied under the FOI Act for access to certain documents relating to the CEP that were held by Defence. The applicant’s request stated that he sought access to:
… the following SEA 1000 documents:
a.A copy of the “Competitive Evaluation Process (CEP) documentation set” provided to the TKMS, DCNS or the Japanese Government for the purpose of assisting Defence in determining a SEA 1000 design partner. It is appreciated that there may be some differences in the document sets sent to each party and, as such, this request does not seek access to material that is different for each contender.
In the alternate to (a), if the burden on the Department is reduced:
b. A version of the “CEP documentation set” immediately prior to the “branching” of the documentation set into TKMS, DCNS or the Japanese Government specific version.
To be clear, I am seeking the core documentation without the contender-specific (commercially sensitive) components.
As evident from the passage extracted above, the documents within the scope of the applicant’s original request were documents that were provided to DCNS, TKMS and Japan as part of the original documentation suite. (The scope of the documents in issue has since been narrowed: see [37]-[53] below.) The evaluation and selection process was the same for the three proponents, and what was required of the proponents was identical. The initial documents inviting the proponents to participate in the CEP and the agreements establishing the terms and conditions under which the CEP was to be undertaken differed, however, according to the different arrangements to be made to take account of the fact that two proponents were corporate entities and one was a national government.
On 27 November 2015, Defence refused to grant the applicant access to the requested documents. In its reasons, Defence advised that there were nine documents within the scope of the applicant’s request. The documents were identified in a schedule attached to the decision, divided into three broad categories of the documents provided to each of the three proponents. Documents 1, 2, 4 and 5 comprised the covering letter and engagement terms documents, and contract for services document for DCNS and TKMS. Document 7 was the covering letter with guidance document for Japan. Documents 3, 6, 8 and 9 comprised the attachments to the Contract for Services documents for DCNS and TKMS, the final arrangement document for Japan and the activity statement, including attachments, for Japan.
In refusing access to the requested documents, Defence relied on exemptions in the FOI Act relating to damage to national security (s 33(a)(i)), damage to national defence (s 33(a)(ii)) and damage to international relations (s 33(a)(iii)), deliberative processes (s 47C), financial interests of the Commonwealth (s 47D), and certain operation of agencies (s 47E(d)).
AIC’S DECISION
On 8 December 2015, the applicant applied to the Office of the Australian Information Commissioner (OAIC) for review of Defence’s decision.
As already indicated, on 26 April 2016, the Australian Government announced DCNS as the preferred proponent in the CEP for the design of the Future Submarines. On 15 June 2016, Defence provided written submissions to the OAIC advising that, in light of the finalisation of the tender process, it no longer considered that any of the documents were exempt under ss 47C, 47D and 47E(d) of the FOI Act, but that each document was exempt under s 33(a)(iii) (in addition to documents 3, 6, 8 and 9 being exempt under ss 33(a)(i) and 33(a)(ii)).
On 7 December 2016, pursuant to s 55K of the FOI Act, the AIC varied Defence’s decision on the basis that the documents that Defence had found to be exempt under ss 47C, 47D and 47E(d) of the FOI Act were instead exempt in full under s 33(a)(iii) of the FOI Act. The AIC affirmed the remainder of Defence’s decision.
The AIC accepted Defence’s submissions that documents 1 to 9 were each exempt in full under s 33(a)(iii) of the FOI Act. The AIC was satisfied that there was a mutual understanding of confidence in relation to these documents and, without prior consultation with the tender parties, release of the material could adversely impact upon the ability of the Australian Government to maintain good working relations with other governments. Having regard to the nature of the information, the circumstances in which it was communicated and the nature and extent of the relationships, the AIC was satisfied that disclosing documents 1 to 9 could reasonably be expected to cause damage to the international relations of the Commonwealth. Accordingly, it found that they were exempt under s 33(a)(iii) of the FOI Act.
In addition, the AIC was satisfied that the release of confidential and sensitive information relating to the commercial and technical requirements for Australia’s Future Submarine Program could reasonably be expected to cause damage to the defence of the Commonwealth by releasing details of future defence capabilities. The AIC was therefore satisfied that documents 3, 6, 8 and 9 were also exempt under s 33(a)(ii) of the FOI Act. The AIC considered it unnecessary to determine whether these documents were exempt under s 33(a)(i).
TRIBUNAL PROCEEDING
On 5 January 2017, the applicant applied to the Tribunal for review of the AIC’s decision. The issues for determination are:
(1)Whether the documents for which exemption is claimed under s 33(a)(iii) of the FOI Act are exempt documents under that provision?
(2)If not, whether the parts of the documents for which exemption is claimed under s 33(a)(ii) of the FOI Act are exempt from disclosure under that provision?
The respondent submitted, and the applicant did not dispute, that if the Tribunal answered “yes” to the first question, there was no need to answer the second question.
The applicant relied on written submissions dated 9 October 2017 entitled “Submission on Substantive Matter” and written submissions dated 24 April 2018 entitled “Closing Submission on behalf of the Applicant”.
The respondent relied on written submissions dated 11 September 2017 entitled “Statement of Facts, Issues and Contentions of the Respondent”, written closing submissions dated 18 April 2018 entitled “Submissions of the Respondent”, and written submissions dated 4 May 2018 entitled “Respondent’s Reply Submissions”.
There was a hearing before the Tribunal on 20 and 21 February 2018. Both the applicant and the respondent were represented by their lawyers. Various directions were made after the hearing concluded.
Evidence relied on before the Tribunal
The respondent relied on an affidavit sworn on 8 September 2017 by Mr Graham Hugh Fletcher, First Assistant Secretary, North Asia Division, Department of Foreign Affairs and Trade (DFAT) and his oral evidence before the Tribunal. He was subject to cross-examination by Ms Bergin, for the applicant.
In broad terms, Mr Fletcher’s evidence was that the relationship between Australia and Japan was damaged by the outcome of the CEP and that significant diplomatic work had been undertaken to mend the relationship. He also gave evidence about Japan’s attitude to the disclosure of the documents in issue before the Tribunal and the consequences of disclosing these documents for Australia’s relationship with Japan.
The respondent also relied on an affidavit sworn on 12 September 2017 by Rear Admiral Gregory John Sammut, Head of the Future Submarine Program in the Capability, Acquisition and Sustainability Group of Defence. He also gave evidence at the Tribunal hearing and was cross-examined by Ms Bergin.
In his capacity as Head of the Future Submarine Program, Rear Admiral Sammut led the Future Submarine Program Office, with responsibility for program management of the delivery of the Future Submarines, including responsibility for the scope, schedule and cost of the Future Submarine Program and enabling functions, including the development of construction infrastructure and relevant support arrangements. Amongst other things, he previously served as the Director General, Submarine Capability in the Royal Australia Navy (RAN), Chief of Staff to Chief of Navy and Director of Submarine Development in the then Capability Development Group. Relevantly for this case, Rear Admiral Sammut led the development and implementation of the Future Submarine CEP, the outcome of which informed the Australian Government’s decision on the selection of DCNS as Australia’s international partner for the Future Submarine Program. Plainly enough, Rear Admiral Sammut was a very experienced naval officer, with direct and current knowledge of the operational environment and the value of the information in the documents in issue from a defence and capability perspective. His evidence concerned the potential for disclosure of parts of the documents in issue to damage the defence of the Commonwealth.
Although not called to give evidence before the Tribunal or for cross-examination, the respondent also relied on two affidavits of Siobhan Mary Stoddart, an Australian Government Solicitor (AGS) lawyer, affirmed on 16 March 2018 and 18 April 2018 respectively. Relevant correspondence concerning consultations with Japanese governmental interests was annexed to both these affidavits.
It is convenient to note at this point that, having regard to s 63 of the FOI Act, the Tribunal made directions under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) that the cross-examination of Mr Fletcher and Rear Admiral Sammut take place in private and limiting the persons present at the time of cross-examination. The Tribunal also made directions under s 35(4) of the AAT Act restricting the disclosure of their evidence in cross‑examination. While only a very small part of Mr Fletcher’s evidence remains subject to the non-disclosure direction, the non-disclosure direction continues to apply to all of Rear Admiral Sammut’s evidence in cross-examination.
At the hearing, the applicant relied on an affidavit sworn by Rex Lyall Patrick on 9 October 2017, who also gave evidence at the hearing. Senator Patrick was subject to cross‑examination by Mr Davidson, for the respondent.
Senator Patrick became a Senator for the state of South Australia in November 2017, having been previously a full-time advisor to the applicant. In that role, he had assisted the applicant in his oversight of the Future Submarines Project. This included meetings with a variety of submarine industry and government personnel, the conduct of Estimates by the Foreign Affairs, Defence and Trade Legislation Committee, and the Senate Standing Committees on Economics Inquiry into the Future of Australia’s Naval Shipbuilding Industry.
Senator Patrick had previous experience with submarines and knew a lot about them. He served in the RAN as an electronics specialist on Oberon Class submarines from 1983 to 1994. He worked for Sonartech Atlas, an Australian company that designed sonar systems from 1994 to 2008, during which time he was involved in many international submarine projects. He worked as a director and the sole employee of Acoustic Force Pty Ltd from 2008 to 2015, in the course of which he developed and delivered acoustic warfare training to navies, air forces, defence civilians and defence industry personnel nationally (including the RAN submarine and anti-submarine warfare specialists) and internationally. Although Senator Patrick had no formal involvement with SEA 1000, he had written many articles on Australia’s Future Submarines Program for defence-related magazines, which he said were “designed to inform the public, and indeed the defence community, of matters relating to submarines”.
Broadly speaking, Senator Patrick’s evidence was that there was a great deal of information about submarines in the public domain. He gave evidence about matters relating to the procurement of submarines, including differences between “bespoke” and “off the shelf” submarine-builds; the history to the CEP; and matters relating to submarines that would, in his view, generally be treated as classified.
After the hearing, the applicant filed a further affidavit sworn by Senator Patrick on 3 June 2019, in which he deposed to what he characterised as “the cavalier approach” allegedly taken by a “Defence FOI decision maker” in making a decision on a Freedom of Information (FOI) request made by him at another date in respect of different documents. The purpose of this affidavit was to support a claim that the respondent had adopted a similarly high-handed approach to the redaction of documents in this case. I return to this affidavit at the conclusion of these reasons.
The applicant also relied on the affidavit of John Duncan Pound sworn on 2 February 2018, as well as the evidence he gave at the hearing. Mr Pound was subject to cross-examination by Mr Davidson.
Mr Pound was experienced in and knowledgeable about project management. He had been working full time in project management roles since 1990, with experience ranging across a number of defence and commercial contracts from relatively small supply contracts through to large scale research and development and supply contracts. At one point, he had project‑managed the research, development and delivery of two new sonar systems for the RAN under a fixed-price, fixed-term, materiel procurement contract, and he also undertook project planning, contract negotiation and cross-project coordination during the course of the manufacture and delivery of a number of other sonar systems to the RAN.
From 2001 to 2008 Mr Pound worked at Atlas Elektronik, where he was responsible for portfolio management and commercial oversight of all tenders, contracts and projects. Whilst in that role, the company tendered for supply of the replacement Collins combat system and for supply of the Heavyweight Torpedo update, in addition to successfully delivering a complex, fleet wide, sonar refit package during the Collins technology refresh project and a major upgrade to the sonar and electronics systems across the RAN’s Hydrographic fleet. As part of the British Aerospace group of companies, Atlas Elektronik was also involved in a significant number of overseas tenders and projects, which provided insights into the way that similar business is conducted in other parts of the world.
Mr Pound’s evidence in cross-examination was that he had had oversight of about 40 tenders, of which about 75 per cent were for material delivered to Defence. He conceded, however, that he had never worked as an employee of Defence and had not worked directly on a Defence project since 2008.

Mr Pound’s evidence addressed the kind of material that would normally constitute part of the tender package for a project like SEA 1000 in support of the proposition that “the majority of the content of that package is a part of the standard defence procurement framework and a relatively standard set of documents that in and of themselves are not something that would normally be in any way sensitive or classified”. He also gave evidence about various key commercial terms and the SEA 1000 tender process.
Scope of review
In broad terms, the documents in issue are:
·    documents governing the contractual and administrative arrangements for how the CEP would operate, for example, the Contract for Services between the company and the Commonwealth;
·    documents that do not relate to the design or functionality of the end project, but which relate to process issues for the CEP, including matters concerning timing, cost or project staging;
·    documents containing information regarding the precise deliverables under the CEP, Defence’s expectations as to how they would be presented in the CEP, and the expected content of a proponent’s response to the CEP in relation to various requirements, such as build options and crewing and training requirements; and
·    documents setting out detailed technical specifications for the design and construction of the Future Submarines.
As indicated above, Defence’s decision referred to nine documents that were within the scope of the applicant’s original request (which appeared in numerical order in the schedule to Defence’s decision). The AIC’s decision concerned the same nine documents. Since those decisions, however, the applicant has excluded some documents from his request, including documents sent to Japan and any information which differed in the documents provided to the proponents. Consequently, there is now one documentation bundle, and the documents in issue before the Tribunal are not numbered to correspond to the nine documents referred to in the Defence and AIC decisions.
It is important to note, however, that although the applicant excluded documents actually sent to Japan, the request is for those parts of the documents that are common to all three proponents. Notwithstanding the applicant’s submissions to the contrary, I accept that this means that the material in issue is the material sent to all three proponents, excluding the actual copy sent to Japan.
After the commencement of the hearing on 20 February 2018, the respondent withdrew the exemptions claimed in relation to: (a) certain parts of documents that it previously claimed were exempt in full under s 33(a)(ii) of the FOI Act; and (b) documents, the disclosure of which was consented to by Japan after the hearing had concluded on the basis that they were already publicly available from official sources.
It is convenient to set out some background to the respondent’s partial withdrawal of the exemptions claimed, as it is relevant to the determination of this proceeding.
Defence exemption – narrowing of respondent’s claim
At the commencement of the hearing on 20 February 2018, Mr Davidson, for the respondent indicated that the respondent had “reflected on precisely which parts of the documents” it claimed were exempt under s 33(a)(ii) of the FOI Act (defence exemption). Later that day, Mr Davidson tendered a “Schedule of documents in issue as at 20/02/2018”, which identified documents in issue numbered 1 to 49. Compared to the previous version of the schedule of documents (annexed to Rear Admiral Sammut’s affidavit), the new schedule more closely particularised where the respondent claimed the defence exemption with the result that there were some parts of the documents numbered 1 and 3 that the respondent no longer claimed were exempt under s 33(a)(ii). While Rear Admiral Sammut’s affidavit addressed the previous version of the schedule of documents, in his evidence before the Tribunal Rear Admiral Sammut confirmed that the “Schedule of documents in issue as at 20/02/2018” was an accurate summary of his concerns “in relation to documents 1 and 3”.
Also at the start of the hearing, Mr Davidson noted that the respondent had undertaken to “reconsider the defence claim” in relation to documents numbered 35 to 49 (each of which the respondent had initially claimed were exempt in full under the defence exemption), and that the respondent would file a revised schedule of documents in issue, perhaps within a week of the hearing. The Tribunal indicated that this was unsatisfactory, and that Rear Admiral Sammut needed to be in a position to state his view in relation to the relevant documents before giving evidence. Accordingly, prior to giving evidence, Rear Admiral Sammut reconsidered the extent of the respondent’s defence exemption claim with respect to documents numbered 35 to 49. After such reconsideration, the respondent withdrew the defence exemption claim in relation to certain parts of documents numbered 35, 42, 43, 45 and 47. (I interpolate here that Rear Admiral Sammut’s reference in evidence before the Tribunal to document 46 was evidently a reference to document 47 in the revised schedule of documents, which became Exhibit R6.) Rear Admiral Sammut confirmed in his evidence before the Tribunal that the statements in his affidavit about those parts of the documents that the respondent by that stage claimed fell within the defence exemption remained correct.
International relations exemption – publicly available information
During the Tribunal review process, the Australian Government consulted Japan about its attitude towards the disclosure of the documents in issue. Correspondence relating to that consultation was annexed to Mr Fletcher’s affidavit. Mr Fletcher initially gave evidence that Japan was opposed to Australia disclosing the information in the documents in issue, “even though some of it may be [publicly] available already through other means”. He said that even if the information was in the public domain, if the Australian Government decided to disclose the information “despite knowing the Japanese Government is opposed to that”, then that disclosure would be damaging to relations between Australia and Japan. In response to my question “[w]hat would it now matter if the [publicly available] information was released under an FOI request”, Mr Fletcher said the issue was that Japan had “asked [Australia] not to release it”. He said that:
if the information is out there the material damage is perhaps less but that’s not really the question, the question is will our relationship with Japan be damaged, if we override their objection or disregard and then release the information. And based on my knowledge our relationship will be damaged.
…
[I]t would reopen some sensitivities about the whole history of this issue, which we hope to put behind us.
Mr Fletcher’s evidence was that:
If the tribunal were to decide to release information which [was] already in the public domain, the damage would be less because we would explain to Japan this is not disclosing something which hasn’t already been disclosed. Nevertheless, I believe they would still be disappointed that we were unable to comply with their request – not to release the information.
Towards the end of the hearing on 21 February 2018, Mr Davidson, for the respondent, foreshadowed that the respondent wished to provide the Tribunal with correspondence relating to a “further round of consultation” that had been undertaken with Japan earlier that month to confirm Japan’s attitude towards “the disclosure of material [already in the public domain] which might have been published by different parts of the Australian Government at some point in time”. Mr Davidson indicated that the respondent’s solicitors had sought a response from Japan prior to the commencement of the hearing, but that they had received no response. He undertook to provide the Tribunal and the applicant with the relevant correspondence with Japan, including Japan’s response once it was received.
Following the February 2018 hearing, on 7 March 2018, pursuant to directions made on 28 February 2018, the respondent filed a table identifying the documents for which an exemption was claimed pursuant to s 33(a)(iii) of the FOI Act (international relations exemption) that are in the public domain via official sources.
Subsequently, the respondent filed the affidavit of Ms Stoddart affirmed on 16 March 2018, which as noted above (see [22]) exhibited relevant correspondence. This correspondence included an email sent from Ms Stoddart to the First Secretary (Defence) Embassy of Australia, Tokyo on 7 February 2018, which stated that:
As part of the process of preparing for this hearing, we’re doing a review of publicly available material about the SEA 1000 CEP. This is to confirm that the exemption claims being made over material are appropriate, as the extent of material in the public domain about any subject (particularly when available from official sources) can affect the viability of exemption claims over that same subject matter.
We’re writing to confirm whether Japan would object to the the [sic] release of information as contained in the documents in issue for this review, if that information was already publicly available and available from official sources.
We would be grateful for your response on this issue by next Wednesday 14 February if at all possible. The reason for the urgency is that the matter is set down for hearing in less than 2 weeks (commencing 20 February), and this issue needs to be resolved before then.
Other emails exhibited to Ms Stoddart’s 16 March 2018 affidavit indicated that the respondent continued corresponding with Japan to ascertain its position on the publicly available materials both before and after the hearing.
The respondent subsequently filed the affidavit affirmed by Ms Stoddart on 18 April 2018, which, as also noted above (see [22]), exhibited further correspondence, including an email from the First Secretary (Defence) Embassy of Australia, Tokyo to Ms Stoddart on 10 April 2018 which indicated that Japan consented to the disclosure of so much of the information in the documents in issue as is already publicly available from official sources.
In written submissions filed on 18 April 2018, the respondent confirmed that, in light of Japan’s response, the respondent: (a) abandoned the international relations exemption claim over that material and (b) would facilitate the disclosure of those documents to the applicant via consent orders. (None of the relevant documents was the subject of a defence exemption claim.)
On 24 April 2018, the applicant filed written closing submissions which did not directly address the respondent’s abandonment of the exemption claimed over the publicly available materials. Instead, the applicant submitted that:
[2]First, now that the hearing of the proceeding is concluded, it is respectfully submitted that the Tribunal can no longer be satisfied on the evidence at hearing that the Documents are exempt. This is because the Respondent has filed Fresh Evidence which has the effect that an unstated proportion of the Documents are no longer exempt under s 33(a)(iii). The Fresh Evidence is in direct conflict with the evidence led at hearing … . Accordingly, on the evidence, the Tribunal must require the Documents to be produced for inspection under s 58E of the FOI Act.
…
[3]Second, damage to defence could not be reasonably be expected to flow from the release of the material which is already widely known or available on the public record.
…
[9]Third, it is not reasonable to expect damage to be caused to the relationship of the Australian government with Japan from the release of the Documents.
[10]Fresh Evidence was filed in the Tribunal on 18 April 2018. Exhibit SS-4 records that the view of Deputy Director, Project Management (Naval Ships) Division, Department of Project Management, Acquisition, Technology & Logistics Agency, Japan is that there is no rational reason to object to the release of information that is already publicly available and available from official sources.
…
[12]In the face of Japan’s consent to publicly available material, and the considerable body of evidence about what is known generally about procurement of submarines sourced solely from the public record, it is surprising that the Respondent continues to claim an exemption before the Tribunal under s 33(a)(iii) and argue that disclosure of even publicly available material could be damaging (absent Japan’s consent).
(footnotes omitted)
In written submissions in reply dated 4 May 2019, under the heading “Publicly available information”, the respondent stated:
1. The applicant’s submissions dwell significantly on material in the documents in issue which is publicly available and Japan’s consent to its disclosure.
2. For abundant clarity, the respondent abandons his exemption claims with respect to that material. It is the subject of a proposed consent order for disclosure, provided to the applicant by the respondent on 24 April 2018, which awaits the applicant’s response.
3. Further, it should be emphasised that the publicly available information comprises material on parts of only 30 pages (and often only one or two words on those pages), of the total 916 pages of material still in issue. It is insignificant in scope and has no effect on the soundness of the balance of the claims.
On 7 May 2018, the Tribunal was copied in to correspondence from the applicant’s solicitor to the respondent’s solicitor. In this correspondence, in response to [2] of the respondent’s written submissions in reply dated 4 May 2018 (extracted above), the applicant stated:
On 19 April 2018, the applicant made its position in respect of consent orders clear by email to Ms Stoddart of your office. Ms Stoddart stated “We’ll provide you with draft consent orders regarding the release of further information, for your consideration as soon as practicable.”
In reply, on 19 April 2018, the applicant's position was clearly stated by email. We refer you specifically to paragraph 3 below:
1. In our view the Japanese government has now made it completely clear that the International Relations exemption has no application to material sought by Mr Xenophon that is already on the public record.
2. The Respondent’s witnesses gave contrary evidence at the hearing in February, at which time the particular view described in the exhibit to your affidavit dated 18 April 2018 had apparently not been communicated by Japan.
3. The appropriate course is for the Secretary to now consent to Mr Xenophon’s application.
4.Should that not occur, we will file our closing submission shortly and on or before the 27th April 2018.
Your consent orders are not consistent with my client’s instructions described above. Accordingly, as has been clear since at least 19 April 2018, the Applicant will not be signing them. The Applicant maintains that the proper next step would have been the preparation of an amended Schedule by the Respondent to assist the Tribunal, consistent with paragraphs 13-14 of its written submission.
On 14 May 2018, the respondent sent a letter to the Tribunal in relation to the applicant’s correspondence of 7 May 2018. This letter relevantly stated:
As advised in the respondent’s closing submissions filed on 18 April 2018, the respondent no longer claims exemption over so much of the documents in issue as is already publicly available from official sources (the publicly available information). We advised the applicant on 19 April that we were in the process of preparing consent orders to facilitate the disclosure of the publicly available information, and we provided the applicant with the said draft consent orders for his consideration on 24 April 2018.
The applicant has declined to sign consent orders for the disclosure of the publicly available information. For the assistance of the Tribunal we enclose a ‘Schedule of publicly available information 14 May 2018’ which identifies this information with particularity. This schedule supersedes the schedule of publicly available information we filed on 7 March 2018, by adding a small number of additional references which we identified on a final review.
The question which arises is how the Tribunal gives effect to the respondent’s abandonment of exemption claims over the publicly available information.
In our view one convenient way for this to be done is for the Tribunal’s decision to be in the following form:
1.The Tribunal varies the Information Commissioner’s decision in so far as documents, or parts of documents, have subsequently been disclosed or rendered irrelevant by agreement of the parties.
2. The respondent is to disclose to the applicant the parts of documents identified in the “Schedule of publicly available information 14 May 2018”.
and then either
3. The decision under review is otherwise affirmed.
or
3. The respondent must also disclose [an enumeration of the documents, or parts of documents, which the Tribunal finds is not exempt would then follow] and the decision under review is otherwise affirmed.
…
In his recent correspondence the applicant urged the respondent to produce an updated schedule of the documents remaining in issue. We have done so for the assistance of the Tribunal. It is enclosed and entitled “Schedule of documents remaining in issue 14 May 2018”.
As foreshadowed in that letter, also on 14 May 2018, the respondent filed: (a) a table identifying the material in issue that had been separately published via official sources entitled “Schedule of publicly available information 14 May 2018”; and (b) an updated schedule of the documents remaining in issue for the purpose of the review, entitled “Schedule of documents remaining in issue 14 May 2018”. These schedules are annexed at the end of these reasons.
APPLICANT’S SUBMISSIONS
The applicant’s position is that none of the documents in issue would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth or to the defence of the Commonwealth and, accordingly, that the AIC’s decision should be set aside and the applicant granted access to the documents and parts of documents in issue.
In oral opening submissions, Ms Bergin, for the applicant, submitted that there are ten key reasons why the documents are not exempt under s 33 of the FOI Act. First, she submitted that the CEP documents were about matters that “sit on a spectrum between project management and build-specific information”. At the project management end of the spectrum, “they may relate to crewing and training, deliverables in broad terms, process issues for the CEP such as timing, cost, project staging, and other contractual and administrative arrangements”. Ms Bergin submitted that such documents are “logically benign”. At “the build end of the spectrum”, Ms Bergin conceded that the documents “may contain some detailed technical specifications for the design and construction of future submarines, such as performance information or precise deliverables”. Ms Bergin submitted that there could be “no logical defence or international relations consequence from releasing benign project management documents”, and stated that the applicant does not seek access to information about “build‑specifics”.
Secondly, Ms Bergin noted that the applicant does not seek documents that were provided only to Japan. Thirdly, she contended that to the extent that the release of the CEP documents allowed implications to be drawn about what might have been sent to Japan, “the tender was sent to Japan on the basis that they were subject to Australian FOI laws”. Fourthly, Ms Bergin contended that the damage to the relationship with Japan “almost certainly arose from the fact that they were unsuccessful in their tender”. She also submitted that the correspondence between the respondent’s solicitor and Japan “may have unintentionally had the effect of bolstering” the international relations exemption and, if that is the case, then it is not proper for the Tribunal to have regard to it.

Fifthly, Ms Bergin submitted that, so far as the applicant was aware, the majority of the CEP documents are not marked “classified”, “secret” or “top secret”, and reaffirmed that the applicant did not seek access to the “sealed” section which contained classified documents. Sixthly, Ms Bergin contended that the evidence showed that there was “vast information about submarine[s], design capability [and] specification available publicly and in the literature”. She contended too that the “mosaic theory” was not relevant to this case. Her seventh point was that the information was known within the community of submarine professionals to a broad extent; and, by her eighth point, she submitted that the Commonwealth had not taken proper measures to restrain the information from being made publicly available.
Ms Bergin’s ninth and tenth points were related. She contended that there was significant value in transparency and accountability being afforded through the release of the full set of tender documents sent to the proposed international partners. Ms Bergin observed that it was stated on the public record and on the SEA 1000 website that $50 billion was to be spent by the Commonwealth under the contract with the international partner, and in this context it was, so she contended, imperative that there be transparency and accountability given this large expenditure of public money.
Re: international relations exemption
In written submissions filed prior to the hearing, the applicant contended that, in so far as the documents in issue were the same or similar to those sent to Japan (which the applicant apparently did not accept) the international relations exemption claim should fail because: (1) Japan was explicitly made aware prior to entering into the CEP that the documents under review could be sought through Australian FOI laws; (2) the release of the documents in issue could not disclose the ground on which Japan was unsuccessful in its tender, and the release of the documents could not reasonably be expected “to cause damage as claimed”; (3) the respondent had demonstrated a consistent propensity to overstate possible damage; (4) Japan’s understandable “disappointment” should not be equated with “damage to international relations”; and (5) the documents in issue were part of a standard tender documentation set used for all complex defence projects, modified as necessary for the purposes of the particular project.
The applicant contended that the Tribunal should reject the respondent’s argument that the disclosure of the documents in issue would be viewed by Japan as inconsistent with Japan’s refusal of access to the same or similar documents under Japan’s equivalent FOI regime because: the request for access in Japan was broader than the applicant’s request; there are relevant differences between the Australian and Japanese FOI regimes; and the Australian Government “mishandled the consultation when asked by the Japanese [Government]”.
In closing written submissions filed after the hearing, the applicant contended that Mr Fletcher’s evidence that mitigation steps would be taken to repair the relationship with Japan if the documents were released meant that it could not reasonably be expected that damage would flow in the relevant sense. The applicant submitted that Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 and ReToren and Secretary, Department of Immigration and Ethnic Affairs [1995] AATA 60 supported the applicant’s position that the respondent’s claim cannot be sustained in circumstances where mitigation strategies were available to manage international relationships.
The applicant further submitted that, particularly in light of the developments since the hearing relating to Japan’s consent to the release of publicly available documents, it was not reasonable to expect damage to be caused to the relationship between Australia and Japan from the release of the documents in issue. The applicant contended that:
In the face of Japan’s consent to publicly available material, and the considerable body of evidence about what is known generally about procurement of submarines sourced solely from the public record, it is surprising that the Respondent continues to claim an exemption before the Tribunal under s 33(a)(iii) and argue that disclosure of even publicly available material could be damaging (absent Japan’s consent).
The applicant also submitted that the Tribunal should attach little weight to Mr Fletcher’s evidence about the implications for Australia’s relationship with Japan because he was wrong in thinking that Japan would object to the disclosure of publicly available information; his opinion was second-hand hearsay; and his opinion was speculative. Moreover, the applicant contended that the chance of harm occurring as a result of the release of documents not already on the public record is remote.
Finally, the applicant submitted that, while there is scope for consultation under the FOI Act during the course of processing an FOI request, the respondent’s ongoing consultation with Japan after the Tribunal hearing was illegitimate, affirming in substance that: “[t]he ongoing circumstances in which external consultation is required under the FOI Act once a matter is before the Tribunal are set out at s 60AA(1)”; consultation was not required in this case; and consultation with Japan about the disclosure of the documents was seen within the Australian Government as harmful to Australia’s relations with Japan.
Re: defence exemption
The applicant also contested the respondent’s claim that the release of the relevant parts of the documents in issue would, or could reasonably be expected to, cause damage to the defence of the Commonwealth, for the following reasons.
The applicant submitted that: (1) the documents were not marked “confidential”, “secret” or “top secret” by professional Defence and military personnel when they were first produced and that no evidence or reasoning had been presented to justify an upgrade from “unclassified” or “For Official Use Only” to “classified”; (2) all the secret material in the CEP documentation was contained in a sealed section, which is outside the ambit of the application; (3) Senator Patrick gave evidence about the particulars of the documents in issue (by reference to topics including risk management and costing and cost estimates), stating that there was nothing special about these documents from a defence perspective; (4) damage could not be reasonably expected to flow from the release of material which is already widely known or available on the public record, as is the material in issue in this case, and any such damage would have already resulted from the availability and release of documents to the public record; and (5) Mr Pound gave evidence of his review of the tender package for the SEA 5000 CEP, in the course of which he said that this review indicated that the majority of the content for that CEP was in line with public domain content of the Defence procurement and tendering framework, and it appeared to have followed a relatively standard process.
The applicant submitted that if the Tribunal found, contrary to the applicant’s case, that the release of the documents would or could reasonably be expected to damage the defence of the Commonwealth, then the release of properly redacted information could allow the objectives of the FOI Act to be met and, at the same time, remove any prospect of such damage.
Call for documents to be inspected
In written submissions filed prior to the hearing on 9 October 2017, the applicant submitted that the Tribunal should, pursuant to s 58E of the FOI Act, require that the documents in issue be produced for inspection. The applicant submitted that this approach was warranted for the following reasons:
·    the respondent initially made a blanket access denial, and the subsequent abandonment of particular exemption claims reveals that the exemptions claimed could not possibly have been made out;
·    the FOI Act requires decision-makers carefully to examine the documents in question and to release all information which is not clearly exempted;
·    it is evident that the respondent and the AIC applied a blanket exemption to the documentation set in a manner inconsistent with the objective and provisions of the FOI Act;
·    the respondent released purportedly exempt material, not in the context of an FOI reconsideration, but as a litigation tactic; and
·    the respondent’s lawyers acknowledged that the Tribunal review was likely to be more exacting than the AIC.
The applicant contended that the approach adopted by courts in dealing with claims over national security information (under s 33(a) of the FOI Act) was also relevant in the present context, referring in particular to Church of Scientology v Woodward [1982] HCA 78; 154 CLR 25 at 75 (Brennan J) and A v Hayden [1984] HCA 67; 156 CLR 532 at 458-459 (Gibbs CJ). Noting that the FOI Act assigned particular importance to the public interest in openness and transparency in public administration and that the FOI Act should be implemented in a manner harmonious with its objectives, the applicant submitted that “in a situation where even remote doubt existed as to a national security claim, it [was] most appropriate for the Tribunal to closely examine the documents in question”.
The applicant contended that there was reasonable doubt in the present case because: (1) the persons who created the documents in issue did not give the documents classification markings indicating that damage to national security would occur if disclosed; (2) the claims as to damage to the defence of the Commonwealth over unclassified submarine details were contested in the applicant’s submissions and evidence; (3) the respondent conceded that the disclosure of certain documents “in isolation” may not be overly harmful if released; (4) the respondent’s “mosaic theory” argument was unsustainable; (5) it should be possible to defuse “any slender damage” to the defence of the Commonwealth by way of partial redactions, thereby permitting the Tribunal to give the fullest effect to the objectives of the FOI Act; and (6) the claims as to damage to foreign relations or national security by the release of information on the project and engineering processes were contested in the applicant’s written submissions and evidence.
In closing written submissions filed after the hearing, the applicant submitted that the Tribunal could not be satisfied that the documents are exempt because the additional evidence filed by the respondent after the hearing regarding further consultations with Japan about the release of publicly available materials was in direct conflict with evidence led by the respondent at the hearing. Accordingly, the applicant contended that, on the evidence, the Tribunal must require the documents in issue to be produced for inspection under s 58E of the FOI Act.
RESPONDENT’S SUBMISSIONS
The respondent’s case was “first and foremost” that the documents in issue could reasonably be expected to cause damage to the international relations of the Australian Government with Japan and therefore they were exempt from disclosure under s 33(a)(iii) of the FOI Act. In the alternative, the respondent contended that disclosure of certain parts of the documents in issue could reasonably be expected to cause damage to the defence of the Commonwealth and, accordingly, that those parts of the documents were exempt from disclosure under s 33(a)(ii) of the FOI Act. As indicated, the respondent’s position was that if the Tribunal were satisfied that the documents were exempt under s 33(a)(iii), it did not need to consider the exemption under s 33(a)(ii).
The respondent submitted that there was sufficient evidence before the Tribunal to be satisfied that the documents were exempt without inspecting the documents in issue, as urged by the applicant.
Re: international relations exemption
The respondent emphasised that the information in question was information which was provided to Japan as part of the CEP for the Future Submarines (notwithstanding that the applicant did not seek the actual documents sent to Japan). The respondent contended that, having regard to Mr Fletcher’s evidence and Japan’s own statements as to its attitude to the disclosure of the documents in issue in this proceeding, the Tribunal should conclude that it was reasonable to expect damage to the relationship between Japan and Australia if the documents in issue were disclosed.
Prior to the hearing, the respondent contended, in written submissions, that disclosure of these documents could reasonably be expected to cause the following damage:
(1)to result in, or encourage, the drawing of inferences that Japan was unable to satisfy Australia’s particular requirements as outlined in the documents.
(1)to risk damage to the international reputation of Japan’s defence industry and the effectiveness of its naval capability, or at the very least be perceived by Japan to show reckless disregard for the potential damage to Japan’s standing in relation to its naval capability;
(2)from Japan’s perspective, to show a lack of commitment to keeping faith with undertakings of confidentiality given by Australia with respect to the CEP and to keeping faith with undertakings of confidentiality in the future;
(3)from Japan’s perspective, to expose Japan to criticism because it had previously refused access to the same or similar information under Japan’s equivalent FOI regime (partly on the basis of Australia’s objections to release), and Japan would view Australia’s actions as inconsistent with its own; and
(4)to re-invigorate the extended bilateral sensitivity of the CEP outcome by disclosing detailed information about the process notwithstanding Japan’s objections and to undo work that had been done to recover the relationship following the CEP outcome.
The respondent submitted that, even if the disclosure of the documents did not result in the drawing of inferences about Japan’s ability to satisfy Australia’s requirements, it was nonetheless clear that Japan was concerned about the possibility and would not welcome a further round of public speculation about the reasons why Japan was not selected. The respondent submitted that, to invite such public speculation after Japan has expressly objected to disclosure was likely to cause significant upset to relations.
Whilst acknowledging that disclosure of the documents in issue would not be likely to lead to a complete severing of relations with Japan, the respondent submitted that the statutory concept of “damage” requires much less than a complete breakdown. The respondent emphasised that the statutory test “does not require any kind of assessment as to the reasonableness of Japan’s response to disclosure of the documents”. The respondent submitted that:
What is relevant is the reasonableness of expecting damage to occur. Having regard to the evidence of Mr Fletcher, and the consultation response received from Japan … it is clearly reasonable to expect damage to occur from the disclosure of the material which remains in issue.
As Mr Davidson put it:
It’s not a question of whether Japan is being reasonable, but a question of whether it is reasonable to expect damage, and that might be reasonably expected regardless of whether one agrees with the position that the Government of Japan takes with respect to the disclosure of CEP information. In effect, we take Japan as we find them is my submission.
Whilst the respondent accepted that merely fleeting damage is insufficient for the purposes of s 33 of the FOI Act, the respondent submitted that once damage has been caused then the exemption was made out. The respondent submitted that the fact that damage, once caused, may be capable of remediation, did not disengage s 33(a)(iii). The respondent submitted that s 33(a)(iii) was made out because Mr Fletcher’s evidence was that damage would occur regardless of the steps that might be taken to minimise it, and that the evidence of the substantial repair efforts that would be needed if the documents were disclosed demonstrated the substantiality of the damage to which those efforts would be directed.
Further, the respondent contended that any suggestion by the applicant that the respondent had improperly bolstered its claim by consulting Japan was untenable having regard to: (a) the express provision in the FOI Act for consultation with foreign governments, along with [5.49] of the Guidelines issued by the OAIC under s 93A of the FOI Act (FOI Guidelines); and (b) the respondent’s obligation to assist the Tribunal to reach the correct or preferable decision. The respondent submitted that the respondent’s case should not be discounted in some way because it undertook (and reported to the applicant and the Tribunal on) a consultation process with Japan, as Japan’s views were highly relevant and should be considered.
Further, the respondent submitted that the evidence led by the applicant about what was known generally about submarines and their procurement did not assist the Tribunal to resolve the questions of damage to international relations, or damage to defence discussed immediately hereafter.
Re: defence exemption
The respondent submitted that the acquisition of submarines for use by the Australian Defence Force (ADF) in future activities was an element of, or was intimately connected to, the defence of the Commonwealth. It followed, so the respondent said, that any disclosure that would threaten the effectiveness of the submarines, or which undermined any real or perceived military advantage they conferred, risked damaging the defence of the Commonwealth.
The respondent relied on the evidence of Rear Admiral Sammut to support its contention that disclosing those parts of the documents for which the defence exemption was claimed would, or could reasonably be expected to, cause damage to the defence of the Commonwealth. In particular, the respondent submitted that such damage would, or could reasonably be expected to, be caused by:
(1)revealing the proficiency, capacity and potential vulnerabilities of the Future Submarines, thus undermining the strategic advantage conferred by Australia’s submarine force, and the capacity of those assets to deter and prevent incursions into Australian territory or to support Australia in meeting its international defence relations;
(2)diminishing protection of the ADF from hindrance or activities that would prejudice its effectiveness, by making available to potential adverse interests information that may assist, or may encourage, activities prejudicial to the effectiveness of the ADF;
(3)disclosing the sophistication with which Australia manages submarine capability, by pointing to aspects of the pre-concept design which were of importance to Australia; and
(4)disclosing details of a collaborative relationship, which could be expected to damage that relationship and undermine development of the Future Submarines, damage Australia’s relationship with a military partner, and undermine the prospects of fruitful collaborative ventures in the future.
In opening submissions before the Tribunal, Mr Davidson, for the respondent, identified three ways in which the disclosure of those parts of the documents over which the defence exemption was claimed would damage the defence of the Commonwealth. First, he said such disclosure would reveal information that “would assist, or could assist, a potentially hostile force in seeking to understand the predicted capability” of the Future Submarines being built for use by the RAN. Revealing information of that kind would, so he submitted, “allow potentially hostile forces to predict how they will operate, plan countermeasures, and thereby undermine the defence of the Commonwealth”. Secondly, such disclosure could reveal “to potentially hostile forces information which allows them to understand with greater certainty the level of sophistication which Australia has to this point achieved in the creation and manning of a submarine fleet as part of the [ADF]”. While the respondent accepted that there was information in the public domain “which talks generally about what submarines can do”, Mr Davidson emphasised that “it’s a very different thing to reveal to the world what we understand and what we plan for, and what we develop in the course of putting together the [CEP], which in its terms laid out what it was that Australia is seeking from the submarines that it’s seeking to build”. Thirdly, Mr Davidson said the disclosure would be of information that “taken together presents a very helpful blueprint for the way in which a potentially hostile force could create its own submarine capabilities”. Again, while the respondent accepted that there was information in the public domain about building a submarine, Mr Davidson submitted that “to disclose exactly how Australia is going about it in sufficient detail to provide … a blueprint to the approach would provide significant assistance to a country with a less-developed capability that wished to create its own submarine force”. Mr Davidson submitted that revealing information of this kind would “put Australia at a relative disadvantage, or reduce the value of the work that has been done in developing a capability and coming up with the CEP, if it were made available then to other countries who hadn’t perhaps reached the same level of sophistication in their submarine thinking”.

The respondent further submitted that the purpose and consequences of applying a security classification to a document were not the same as the purpose and consequences of refusing access to a document under the FOI Act. In this context, it noted [5.26] of the FOI Guidelines. The respondent submitted that just as a high classification would not of itself justify a decision that the document to which it applied was an exempt document under s 33(a)(ii), so too a lower classification would not inevitably lead to the conclusion that the document to which it applied was not an exempt document. The respondent submitted that: (a) the Tribunal is bound to apply the test in the FOI Act based on the evidence before it; and (b) the classification itself was not good evidence in the absence of evidence establishing how the decision to apply that classification was reached.
Finally, the respondent contended that a mosaic analysis was relevant when considering the harm associated with the release of isolated parts of the documents in issue, a proposition supported by the evidence of Rear Admiral Sammut.
CONSIDERATION
Key provisions
In determining the application for review of the decision of the AIC, the Tribunal first turns to relevant provisions of the FOI Act.
Section 3 of the FOI Act concerns the objects of that Act. Subsection 3(1) provides that:
The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
Section 11(1) is key to providing for a right of access. It provides that:
Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(i) a document of an agency, other than an exempt document; or
(ii) an official document of a Minister, other than an exempt document.
This right is not affected by any reasons the person gives for seeking access or the agency’s or Minister’s belief as to the person’s reasons for seeking access: s 11(2).
The statutory right provided by s 11(1) does not extend to an exempt document. Section 4(1) provides that in the FOI Act, unless the contrary intention appears, “exempt document” means, relevantly for this case, “a document that is exempt for the purposes of Part IV (exempt documents) (see section 31B)”.
Within Pt IV, headed “Exempt documents”, s 31B provides:
31B     Exempt documents for the purposes of this Part
A document is exempt for the purposes of this Part if:
(a)       it is an exempt document under Division 2; or
(b) it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).
Note 1:A document is an exempt document for the purposes of this Act (see subsection 4(1)) if:
(a)       it is exempt under this section; or
(b)it is exempt because of section 7 (exemption of certain persons and bodies); or
(c)it is an official document of a Minister that contains matters not relating to the affairs of an agency or a Department of State.
Note 2: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A).
Section 33, in Div 2 of Pt IV, relevantly provides:
33       Documents affecting national security, defence or international relations
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)        the security of the Commonwealth;
(ii)       the defence of the Commonwealth; or
(iii)      the international relations of the Commonwealth; or
(b)       …
As already indicated, an application may be made to the Tribunal under s 57A(1)(a) of the FOI Act for review of a decision of the AIC made under s 55K. Section 58 of the FOI Act further provides that:
(1)Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.
(2)Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
…
Section 58E concerns the production to the Tribunal of exempt documents. For present purposes, it is sufficient to note that subsections (1) and (2) provide that:
(1)In any proceedings before the Tribunal under this Act in relation to a document that is claimed to be an exempt document under section 33, 34 or 45A, the Tribunal is entitled to require the production of the document in accordance with this section and not in accordance with section 64, section 37 or 38AA of the Administrative Appeals Tribunal Act 1975 or otherwise.
(2)If the Tribunal is not satisfied by evidence on affidavit or otherwise that the document is an exempt document under section 33, 34 or 45A, the Tribunal may require the document to be produced for inspection by the Tribunal as constituted for the purposes of the proceeding.
In reaching this decision, it has not been necessary to require the documents in issue to be produced for inspection; and the Tribunal has not done so, notwithstanding the applicant’s submissions to the contrary.
In the circumstances of this case, it is also unnecessary to do more than note that s 60A of the FOI Act would require the Tribunal to request the Inspector-General of Intelligence and Security to appear personally and give evidence before determining that a document claimed to be exempt under s 33 is not an exempt document under that provision.
Relevant principles
There was no real dispute between the applicant and the respondent about the relevant legal principles. In effect, by virtue of s 61(1)(b) of the FOI Act, to sustain an international relations exemption, the respondent has the onus of establishing, on the balance of probabilities, that the disclosure of all the documents in issue would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth and, in consequence, are exempt documents under s 33(a)(iii): see Waterford v Department of the Treasury (1985) 5 FCR 76; Fisse v Secretary, Department of the Treasury [2008] FCAFC 188; 172 FCR 513 at [91]; and Jorgensen vAustralian Securities and Investments Commission [2004] FCA 143; 208 ALR 73 at [65]. In considering whether the documents are exempt under s 33(a)(iii) the Tribunal is not called on to “balance” any competing public interest in the disclosure of the documents in issue: see Commonwealth v Hittich (1994) 53 FCR 152 at 154 and Secretary, Department of Foreign Affairs and Trade v Whittaker [2005] FCAFC 15; 143 FCR 15 (Whittaker) at [17].
In so far as parts of the documents subject to the defence exemption claim are concerned, the respondent has the onus of satisfying the Tribunal on the balance of probabilities that the disclosure of those parts of those documents would, or could reasonably be expected to, cause damage to the defence of the Commonwealth and in consequence that the exemption from disclosure in s 33(a)(ii) applies.
“could reasonably be expected to”
In this case, whether or not the international relations exemption in s 33(a)(iii) or the defence exemption in s 33(a)(ii) is attracted depends in part on the expression “could reasonably be expected to”. The FOI Guidelines, to which the Tribunal must have regard (see s 93A(2)), provide in [5.17] that:
The use of the word “could” in this qualification is less stringent than “would”, and requires analysis of the reasonable expectation rather than certainty of an event, effect or damage occurring. It may be a reasonable expectation that an effect has occurred, is presently occurring, or could occur in the future.
(footnote omitted)
From time to time, the Federal Court and the Tribunal have considered the expression “could reasonably be expected to”. For example, in Attorney-General’s Department v Cockcroft [1986] FCA 35; 10 FCR 180 Bowen CJ and Beaumont J referred to this expression in s 43(1)(c)(ii) of the FOI Act and stated (at 190):
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. It is undesirable to attempt any paraphrase of these words. In particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.
In Re Maher and Attorney-General’s Department (1985) 7 ALD 731 (Re Maher) the Tribunal (constituted by Davies J) held (at 742) that a mere allegation or possibility of damage to international relations was insufficient. Rather, there must be “cause and effect which can reasonably be anticipated”. He added (also at 742):
But if it can reasonably be anticipated that disclosure of the document would lessen the confidence which another country would place on the Government of Australia, that is a sufficient ground for finding that the disclosure of the document could reasonably be expected to damage international relations. Trust and confidence are intangible aspects of international relations.
The Full Federal Court in Whittaker apparently endorsed the following propositions at [17]:
· the test is not whether there is a risk of damage to international relations: the test requires a higher degree of certainty of damage; and
· the test is to be applied to the documents at the time of decision and not at the time of creation of the documents.
See also Bradford and Australian Federal Police (Freedom of information) [2016] AATA 775 at [25], citing Cordover and Australian Electoral Commission (Freedom of Information) [2015] AATA 956 at [42].
As will be seen, the Tribunal is satisfied on the balance of probabilities that disclosure of the documents in issue could reasonably be expected to cause damage to the international relations of the Commonwealth and that, in consequence, the documents are exempt documents under s 33(a)(iii) of the FOI Act.
The following discussion therefore focusses on s 33(a)(iii). By virtue of the conclusion the Tribunal has reached, it is unnecessary to give further consideration to the defence exemption in s 33(a)(ii).
“cause damage to … the international relations of the Commonwealth”
The expression “international relations of the Commonwealth” is not defined in the FOI Act, but its meaning is clear. It may be accepted that the expression can refer to the various connections, whether political, economic, social, cultural or otherwise, between the Commonwealth of Australia and a government or governmental agencies or instrumentalities of another or other countries: see, for example, Re Lobo and Department of Immigration and Citizenship [2011] AATA 705; 124 ALD 238 at [75]. Further, the FOI Guidelines state at [5.36]:
The phrase “international relations” has been interpreted as meaning the ability of the Australian Government to maintain good working relations with other governments and international organisations and to protect the flow of confidential information between them.
(footnote omitted)
The meaning of “damage” for the purposes of s 33(a)(iii) is not confined to loss or damage in monetary or any other terms: see FOI Guidelines at [5.28]. As the FOI Guidelines there state:
The relevant damage may be intangible, such as inhibiting future negotiations between the Australian Government and a foreign government, or the future flow of confidential information from a foreign government or agency.
“Damage” for these purposes may include damage to intangibles, such as personal relationships between high level officials and politicians: see Whittaker at [17]. As Davies J said in Re Maher at 742:
The phrase “damage to international relations of the Commonwealth” comprehends intangible damage to Australia’s reputation though such damage may be difficult to assess. International relations have never been matters easy to define or to quantify. Regard must be had, inter alia, to the relationships between particular persons in one government and persons in another. Damage to personal relationships may cause considerable harm for a time at least.
Spender J referred to this passage with approval in Re Aldred and Department of Foreign Affairs and Trade [1990] AATA 833 (Re Aldred).
In Re Bui and Department of Foreign Affairs and Trade [2005] AATA 97; 85 ALD 793 at 795, for example, the Tribunal held that damage to international relations includes damage to Australia’s reputation or relationships between government officials.
It may be accepted that when s 33(a)(iii) speaks of “damage” to international relations, it is referring to damage of some substance, not merely nominal damage, although the relevant damage need not be catastrophic, in the sense that the relationship is broken or irretrievably weakened for all time. The damage may be at a whole-of-government level, or at an agency-agency level: FOI Guidelines at [5.36]. As Wilcox J explained in Arnold v Queensland (1987) 13 ALD 195 at 204:
It would not normally be correct to describe a falling out between particular individuals on each side as constituting damage to “relations” between the two governments, even if there was some loss of co-operation between those individuals. But a dispute may have ramifications sufficiently extensive for it to affect “relations” between the governments as such. Questions of degree arise. They can only be considered in the light of the facts of each case.
This passage too was cited with approval in Re Aldred.
In broad terms, the Tribunal must in this case determine whether, on the balance of probabilities, the respondent has shown a reasonable basis for its asserted expectation that damage to the international relations of the Commonwealth can be expected to flow from the disclosure of the documents in issue. As Spender J observed in ReAldred, “[t]he effects of disclosure might follow from either the mere fact of the disclosure of the document itself, or together with disclosure of the contents of that document”.
For the reasons stated below, the Tribunal is satisfied in this case that the respondent has established on the balance of probabilities that it could reasonably be expected that disclosure of any further CEP material, being the documents in issue, absent Japan’s consent could reasonably be expected to damage Australia’s relationship with Japan.
Evidence as to damage to international relations
Mr Fetcher’s evidence was that Japan’s decision to consider supplying submarines to Australia was an unprecedented step for Japan in so far as it concerned the export of defence technology, and the decision was taken at the highest level of Japanese government. His evidence was that Japan made a strong domestic commitment to participate in a submarine supply process with Australia. Australia subsequently made significant diplomatic efforts to prevent or mitigate the harm to its relationship with Japan consequent upon the Australian Government’s decision to not select the Japanese bid. Japanese sensitivity was heightened by the significance of Japan’s participation in the CEP, and Australia’s efforts to mitigate harm to its relationship with Japan involved high-level communications between the two governments. Mr Fletcher described this as “a precarious time in Australia’s relationship with Japan”.
Mr Fletcher’s opinion was that disclosure of the documents in issue in this case would be likely to damage the relationship between Australia and Japan. He gave the following evidence in support of this opinion.
(a)The CEP remains a subject of considerable latent sensitivity to Japan in the diplomatic context; and Japan takes a maximalist approach to seeking to protect the confidentiality of information about its participation in the CEP.
(b)Key individuals within Japan’s governmental system remain “raw” about the outcome of the CEP and the disclosure of the documents in issue would revive grievances amongst these individuals.
(c)The disclosure of the documents in issue risks the loss or significant diminishment of the necessary co-operation by elements of Japan’s governmental system in relation to Australia’s interests.
(d)The disclosure of the documents in issue would undermine Japan’s trust and confidence in Australia and would have a lasting adverse effect on Australia’s strategic defence relationship with Japan.
(e)Japan would be very unhappy about the release of the documents in issue because: it could result in an inference that Japan was unable to satisfy Australia’s requirements as stated in the documents or be seen to invite the world to speculate on that issue “with a high degree of specificity”; and it would likely be perceived by Japan as Australia publishing information that was likely to damage the reputation of Japan’s defence industry and the effectiveness of its naval capability without having due regard for Japan’s interests.
(f)The disclosure of the documents would be seen by Japan as contradictory to Japan’s response under its equivalent FOI regime. Japan had refused access to the same or similar documents to the documents in issue, in part because of Australia’s objections to release.
(g)Japanese officials were led to believe by Australia that the CEP was confidential, and the release of the documents in issue would in this context be “likely to distress and frustrate” Japan.
Mr Fletcher emphasised in his evidence before that Tribunal that Australia’s relationship with Japan would be damaged by the very fact that Australia had overridden Japan’s objection against disclosure of the documents in question.
This evidence related to the fact that, as the correspondence annexed to his affidavit and marked “GF-3” (and the affidavit evidence of Ms Stoddart (with annexures)) showed, at some time well before the Tribunal hearing AGS lawyers and Defence officials in Australia had been in consultation with Australian officials in Japan or Japanese officials about the disclosure of the documents sought by the applicant under the FOI Act. The correspondence indicated that, prior to the hearing, Japan opposed disclosure of documents created as part of the CEP. At the time of the hearing Japan had not indicated any change in its position (although, as already noted, after the hearing Japan consented to the disclosure of material that was already publicly available from official sources).
Contrary to the applicant’s submissions at one point, there was nothing improper about these consultations and the respondent did not improperly bolster its claims in so doing. The issues before the Tribunal concern whether, and upon what bases, Australia’s relationship with Japan would or could be damaged by the disclosure of the documents in issue. Evidence of Japan’s response to the mooted disclosure was plainly relevant to the Tribunal’s decision; and I accept that, in undertaking consultations with Japanese officials, the respondent was discharging its obligation to assist the Tribunal reach the correct or preferable decision. Furthermore, the FOI Act expressly provides for consultation with foreign governments: s 15(7) extends the processing time for an FOI request when consultation is undertaken with a foreign government, or an authority of a foreign government.

ANNEXURE B
Schedule of documents remaining in issue 14 May 2018 (footnotes omitted)

Doc No.

Pgs

Date

Document created by

Document directed to

Description of document

Summary position

Parts over which exemption or irrelevance claimed

1. 10 April 2015
Defence Materiel Organisation, SEA1000

Future Submarine Program, Defence

(Defence)

Competitive Evaluation Process (CEP)

participants

Covering letter setting out information about and inviting company to participate in the CEP to select an International Partner for the SEA 1000 Future Submarine Program.

Annexure A – Engagement Terms for CEP
Grant access in part
Redact for irrelevance the company name and addressee details, p 1 of each document.

Exempt under s 33(a)(ii),(iii) p 2, bullet point # 4, sentence 3 in full.

Exempt under s 33(a)(iii) p 2, bullet point # 6 line 1 word 13, and line 2 words 1 and 5-6.

Exempt under s 33(a)(iii) p 2, bullet point # 7 line 1 word 12, line 2 word 1 and word 4 to the end of the paragraph.

Exempt under ss 33(a)(ii) bullet point #7 on p 2, 6th word on line 2 to end of the paragraph.

Redact for irrelevance entries 12 and 13 in table at DCNS document, p 4 (these entries not present in TKMS version).

Exempt under s 33(a)(iii) ‘Description’ column on p6, row numbered ‘1’ in full.

Exempt under s 33(a)(iii) ‘Description’ column on p6, row numbered ‘3’ paragraph 3 in full.

Exempt under s 33(a)(iii) ‘Description’ column on p6, row numbered ‘5’, paragraph 1, line 1 words 6-8, and line 2 words 1-6.

Exempt under s 33(a)(iii) ‘Description’ column on p7, row numbered ‘6’ in full.

Exempt under s 33(a)(iii) ‘Description’ column on p7, row numbered ‘7’, paragraph 2, line 2 words 8-10 and line 3 in full.

Exempt under s 33(a)(iii) ‘Description’ column on p7, row numbered ‘8’ in full.

Exempt under s 33(a)(iii) ‘Description’ column on p7, row numbered ‘9’, line 1 words 7-9.

Exempt under s 33(a)(iii) ‘Description’ column on p7, row numbered ‘10’ in full.

2. 18 May 2015 Defence
CEP

participants
Contract for services between company and Commonwealth Grant access in part
Redact for irrelevance the company name and addressee details, p 1 of each document.

Redact for irrelevance 9.2(e),(g) in DCNS contract.

Exempt under s 33(a)(iii) clauses 8.1-8.3 (‘Use of Commonwealth Material’) and clauses 9.1-9.3 (‘Intellectual Property’).

Redact for irrelevance 9.3(b)(iv) in TKMS contract.

Redact for irrelevance final paragraph on p 7 commencing “Note” (and continuation of paragraph on p 8 ) in DCNS contract.

Redact for irrelevance clause 11.2(b) of DCNS contract.

Redact for irrelevance clause 11.3(b) of DCNS contract, final 5 words of 2nd line.

Redact for irrelevance clause 11.9 in DCNS contract.

Exempt under s 33(a)(iii) clause 14.1 (‘Price Basis’).

Redact for irrelevance addressee details at p 15 of each document:

·     in DCNS contract clause 22.1 at pg 15, the last 2 words on line 27, the address on line 29, and all of lines 30-34

·     in TKMS contract clause 22.1 at pg 15, the last 2 words on line 3, the address on line 5, and all of lines 8-11.

Redact for irrelevance signature block on p 16 (all content underneath the words “THE COMMONWEALTH OF AUSTRALIA”).

3. 14 Undated Defence CEP participants Attachment A to Contract for Services - Statement of Work Grant access in part
Exempt under s 33(a)(ii) clause 1.10(d), from 2nd word on line 4 to 2nd word on line 5.

Exempt under s 33(a)(ii) clause 1.10(g), from 7th word on line 2 to end of the paragraph.

Exempt under s 33(a)(iii):

·     clause 1.2

·     clauses 1.4-1.7

·     clause 1.10(d) sentence 3 in full

·     clause 1.10(f) line 2, words 1-2 and 6-7.

·     clause 1.10(g) line 2 words 1-2 and words 5 to the end of the paragraph.

·     clause 2.2.3, line 1, 6th - 8th words, and final word on line 3

·     clause 2.3.1 - 2.3.5 (‘Platform Capability’)

·     clause 2.4.1 in full

·     clause 2.4.2(a) line 3 words 1-3

·     2.4.2(b) in full2.4.2(d) in full

·     2.4.2(e) in full

·     2.4.3, line 2, words 2 to the end

·     clause 2.5.1, 1st word of line 4

·     clause 2.5.1(a)-(c)

·     clause 2.5.2, final 4 words of line 1, and line 2 word 1 and word 10 to the end.

·     clause 2.7.1, 6th-9th word

·     clause 2.7.2, 6th and second last word

·     clause 2.8.1 – 2.8.6 (‘Engineering management’)

·     clause 2.8.7, 6th – 17th and second last word

·     clause 2.8.9, 6th - 9th and second last word

·     clause 2.9.4, 6th - 9th and second last word

·     clause 2.9.5, 3rd last and final word of line 6, and line 7

·     clause 2.10.1, 8th word on line 2 through to line 6, 2nd word.

·     clause 2.10.2 in full

·     clause 2.10.3 (a), 3rd, 4th and second last word

·     clause 2.10.3 (b), 3rd, 4th and second last word

·     clause 2.10.3 (c), 5th - 7th and second last word

·     clause 2.10.3 (d), 6th - 9th words of line 1, and 3rd-6th and second last word of line 2

·     clause 2.10.3(e), last word of line 1, and 1st, 2nd and second last word of line 2

·     clause 2.10.3 (f), 5th-8th and final word of line 1, and 1st-3rd and second last word of line 2

·     clause 2.11.1(b), words 2 & 3.

·     clause 2.11.2, 6th – 10th word of line 1, and second last word of line 2

·     clause 2.12.3, first word of line 4 of ‘Note’ following

·     clause 2.12.7, 6th – 9th and second last word

·     clause 2.14.2, 6th - 7th and second last word

·     Table 1 at clause 3.2 (‘Contract Data Requirement List’) at pages 11-13:

-     all text in ‘Deliverables’ column for rows numbered ‘3’-‘7’,‘10’, ‘13’ and ‘18’-‘22’

-     ‘Deliverables’ column for row numbered ‘15’, words 2 and 5 only

-     headers and rows numbered 1-22 for columns 3-7

·     clause 4.3, second last word

·     Table 2 at clause 5.1 (‘Commonwealth Material’) in full.

4.

5.

1

Undated

Defence

CEP

participants

Attachment B to Contract for Services –

Details of Payment

Document sets out milestone payments

of the Contract Price for the purposes of

clause 12 of the Contract for Services.

Grant access in

full

-

6.

5

Undated

Defence

CEP

participants

Attachment C to Contract for Services – Deed of Confidentiality

Grant access in full

-

7. 4 Undated Defence
CEP

participants

Attachment D to Contract for Services – Security classification document

Document sets out security classifications of various documents which are deliverables and further relevant information regarding treatment of classified material. Document reveals specific deliverables under the CEP including elements of submarine design
Grant access in part
Exempt under s 33(a)(iii):

·     Table 1 (at p 1):

-     Entirety of text in ‘Deliverables’ column for rows numbered ‘03’, ‘04’, ‘06’, ‘07’, ‘10’, ‘13’, and ‘18’-‘22’.

-     Row numbered ’15, text in ‘Deliverables’ column, words 2-3 and 5 only.

·     Table 2 (at pg 2), 2nd and 3rd columns, titled “Item” and “Security classification”.

8.

6

Undated

Defence

CEP

participants

Attachment E to Contract for Services - Glossary

Grant access in part

Redact for irrelevance company name in definitions of ‘Contract’ and ‘Contractor’ at pg 2.

Exempt under s 33(a)(iii):

·     part of the definition of ‘Combat System’ at p 1, from 14th word (last word) of line 1, to the end of the paragraph.

·     definition of ‘Design Brief’ at p 2, line 1 words 3 to end, all of line 2, line 3 words 1 and 15 to end, and all of lines 4-6.

·     p 4, lines 19-22 in full;

·     definition of ‘Pre-Concept Design’ at p 4, words

3 to end of the paragraph;

·     definition of ‘PFPS’ at pp 4-5, line 1 (p 4) words 7 to the end of the line, line 2 (p 4) words 1-4, line 3 (p 4) words 8 to the end of the line, and lines 4-6 in full (p 5).

9. 3 Undated Defence
CEP

participants

Data Item Description (DID) #1

Document provides significant insight into the precise deliverables under the CEP, Defence’s expectations as to how they will be presented in the CEP, and the expected content of a proponent’s response to the CEP, specifically relating to build options
Grant access in part
Exempt entire document under s 33(a)(iii) with the exception of:

-     Title of document at paragraph 2, p 1; and

-     Clause 3.1 line 2, words 7 to the end, line 3 in full and ‘a’, ‘b’ and ‘c’ in full.

10. 92 Undated Defence
CEP

participants

DID #2

Document sets out requirements for a particular deliverable in the CEP referable to the proponent’s proposed design or functionality of the end product
Grant access in part
Exempt entire document under s 33(a)(ii) and (iii)

with the exception of:

-     Title of the document stated at paragraph 2, p 1.

11.

2

Undated

Defence

CEP

participants

DID #3

Document sets out requirements for a particular deliverable in the CEP referable to the proponent’s proposed design or functionality of the end product

Refuse access

Exempt entire document under s 33(a)(iii).

12. 3 Undated Defence
CEP

participants

DID #4

Document sets out requirements for a particular deliverable in the CEP referable to the proponent’s proposed design or functionality of the end product
Refuse access
Exempt entire document under s 33(a)(ii).

Exempt entire document under s 33(a)(iii).

13. 2 Undated Defence
CEP

participants

DID #5

Document sets out requirements for a particular deliverable in the CEP referable to the proponent’s proposed design or functionality of the end product
Grant access in part
Exempt entire document under s 33(a)(ii) and (iii)

with the exception of:

-     Title of the document stated at paragraph 2, p 1.

14.

18

Undated

Defence

CEP

participants

DID #6

Document sets out requirements under the CEP that do not relate to the design or functionality of the end product, but which relate specifically to cost

Refuse access

Exempt entire document under s 33(a)(iii).

15. 1 Undated Defence
CEP

participants
DID #7 - Schedule Grant access in part
Exempt entire document under s 33(a)(iii) with the exception of:

-     clause 2.2, last 3 words

16. 5 Undated Defence
CEP

participants

DID #8

Document sets out requirements under the CEP that do not relate to the design or functionality of the end product, but which relate to process. Specifically, the proponent is required to provide a summary of information on various topics and stages, as specified in more detail in this document. Examples include information regarding program delivery and the scope of work for each stage, an explanation regarding certain systems and processes which will be put in place, as well as other relevant information
Grant access in part
Exempt entire document under s 33(a)(iii) with the exception of:

-     Document title at paragraph 2, p 1; and

-     Clause 6.2.1, points (a), (b) and (c) on p 1.

17. 7 Undated Defence
CEP

participants

DID #9

Document sets out requirements under the CEP that do not relate to the design or functionality of the end product, but which relate to process issues, how certain design standards will be met, and relevant supporting technical information. The document includes a request for information on 1) how the work required under the program will be organised, 2) what business systems and processes would be used to manage and control program, 3) a summary of the expected workforce and the proposed organisational chart for the program, 4) a list of key personnel, 5) a summary of proposed sub-contractors, 6) a summary of concepts for identifying and managing supply chains, 7) concepts to managing quality , 8) key concepts for achieving project integration and 9) a summary of the Contractor's approach to risk management
Grant access in part
Exempt entire document under s 33(a)(iii) with the exception of:

-     Title of the document stated at paragraph 2, p 1.

Exempt under ss 33(a)(ii):

·     Clause 6.2.8(b), (c), (e).

·     Clause 6.2.13.3.

·     Clause 6.2.18.

18.

2

Undated

Defence

CEP

participants

DID #10

Document sets out requirements under the CEP that do not relate to the design or functionality of the end product, but which relate to process issues such as time, cost, project staging, etc

Refuse access

Exempt entire document under s 33(a)(iii).

19. 3 Undated Defence
CEP

participants

DID #11

Document sets out requirements under the CEP that do not relate to the design or functionality of the end product, but which relate to process issues such as time, cost, project staging, etc
Grant access in part
Exempt entire document under s 33(a)(iii) with the exception of:

-     Title of the document stated at paragraph 2, p 1.

20.

9

Undated

Defence

CEP

participants

DID #12

Document sets out requirements for management of safety, referable to the proponent’s proposed design or functionality of the end product

Refuse access

Exempt entire document under s 33(a)(iii).

21. 3 Undated Defence
CEP

participants

DID #13

Document sets out requirements relating to sustainment and maintenance referable to the proponent’s proposed design or functionality of the end product
Refuse access
Exempt entire document under s 33(a)(iii).

Exempt row 2 in table at Appendix A (pg 3), under

s 33(a)(ii).

22. 4 Undated Defence
CEP

participants

DID #14

Document sets out relating to sustainment and maintenance referable to the proponent’s proposed design or functionality of the end product
Grant access in part
Exempt entire document under s 33(a)(iii) with the exception of:

-     Title of the document stated at paragraph 2, p 1; and

-     Clause 3.1 line 4, words 5 to the end of the paragraph.

23. 4 Undated Defence
CEP

participants

DID #15

Document sets out requirements for a particular deliverable in the CEP referable to the proponent’s proposed design or functionality of the end product, specifically relating to crewing

and training requirements
Grant access in part
Exempt entire document under s 33(a)(iii) with the exception of:

-     Title of the document stated at paragraph 1, words 1, 3, 4 only.

Exempt clause 6.2.1.2 under s 33(a)(ii).

24.

6

Undated

Defence

CEP

participants

DID #16

Document sets out requirements under the CEP that do not relate to the design or functionality of the end product, but which relate to process issues such as time, cost, project staging. Specifically, this documents sets out required information regarding the Contractor’s proposed preferred commercial arrangements, and how certain arrangements between governments will operate

Grant access in part

Exempt entire document under s 33(a)(iii) with the exception of:

-     Title of the document stated at paragraph 2, p 1; and

-     Clause 6.4.2 in full, p 4.

25.

1

Undated

Defence

CEP

participants

DID #17 - Australian Industry Plan

Grant access in part

Exempt 5th last and final 3 words of clause 2.2 under s 33(a)(iii).

26. 3 Undated Defence
CEP

participants

DID #18

Document sets out requirements for a particular deliverable in the CEP referable to the proponent’s proposed design or functionality of the end product, specifically regarding identification and assessment of relevant risks
Grant access in part
Exempt entire document under s 33(a)(iii) with the exception of:

-     Title of the document stated at paragraph 2, p 1,

Exempt under s 33(a)(ii),‘Table A1’ at pages 3-5 of this document.

27. 6 Undated Defence
CEP

participants

DID #19

Document sets out preparatory requirements under the CEP related to the Contractor’s participation in various meetings, reviews and workshops.

Grant access in

part

Exempt entire document under s 33(a)(iii) with the

exception of:

-     Clause 3.2 (b), (d) and (f), p 1

Documents 27-34 no longer in issue (see applicant’s 14/08/2017 correspondence)

35. 71
March

2015
Defence
SEA1000

Program team

Annex D [FOUO]

Document sets out the key activities, deliverables and milestones of the SEA1000 program
Refuse access
Exempt entire document under s 33(a)(iii), with the exception of:

-    p 1, lines 1-8 only.

Exempt under s 33(a)(ii):

·   Clause 1.2.1 – last sentence.

·   Figure 2 in entirety

·   Clause 2.1.1

·   Figure 3 in entirety

·   Clause 2.1.3 - The final sentence including the following three dot points

·   Clause 2.1.5

·   Clause 2.1.8 – Clause 2.1.10

·   Figure 4 in entirety

·   Clause 2.1.11

·   Figure 5 in entirety

·   Clause 2.2.2.1 – second sentence

·   Clauses 2.2.2.2 – 2.2.2.5

·   Clause 2.2.3.1 – last two sentences

·   Clause 2.2.5.1 – second sentence

·   Clause 2.2.5.2 – 2.2.5.3

·   Clause 2.2.6.1

·   Clause 2.2.7.2 – last sentence including four following dot points

·   Clause 2.3.1 – 2.3.3

·   Figure 6 in entirety

·   Clause 2.3.4 – 2.3.7

·   Clause 2.4 in entirety

·   Clause 2.5.1 – final sentence and five following dot points

·   Clause 2.5.2

·   Figure 7 in entirety

·   Table 1 - columns 1 and 2

·   Clause 2.8.1 – 2.8.5

·   Clause 3.1.2 – last two sentences

·   Figure 8

·   Clause 3.1.3 – last sentence

·   Figure 9

·   Clause 3.2 in entirety

·   Clause 3.3 in entirety

·   Clause 3.4 in entirety

·   Clause 3.5 in entirety

·   Clause 3.6 in entirety

·   Clause 3.7 in entirety

·   Clause 3.8 in entirety

·   Section 4 in entirety

·   Figure 11

·   Clause 5.1.2

·   Table 2

·   Figure 12

·   Table 3

·   Line 6 of first table in Section 6.

36. 60 Oct 2014 Defence
SEA1000

Program team

Annex D [FOUO]

Document sets out technical specifications for design and construction
Refuse access Exempt entire document under ss 33(a)(ii), 33(a)(iii).

37. 62 Oct 2014 Defence
SEA1000

Program team

Annex D [FOUO]

Document sets out detailed requirements for the design and construction process
Refuse access
Exempt entire document under ss 33(a)(ii), 33(a)(iii), with the exception of:

-     p 1, lines 1-8 only.

38. 86 Oct 2014 Defence
SEA1000

Program team

Annex D [FOUO]

Document details an element of the deliverable relating to the ongoing performance of the end product
Refuse access Exempt entire document under ss 33(a)(ii), 33(a)(iii).

39. 24 Oct 2014 Defence
SEA1000

Program team

Annex D [FOUO]

Document sets out requirements relating to information and knowledge management over the course of the SEA1000 programme
Refuse access Exempt entire document under ss 33(a)(ii), 33(a)(iii).

40. 47 Oct 2014 Defence
SEA1000

Program team
Annex D Document details an element of the deliverable relating to the ongoing performance of the end product Refuse access Exempt entire document under ss 33(a)(ii), 33(a)(iii).

41. 20 Oct 2014 Defence
SEA1000

Program team

Annex D [FOUO]

Document sets out technical requirements for particular aspect of submarine design and construction
Refuse access Exempt entire document under ss 33(a)(ii), 33(a)(iii).

42. 20 Oct 2014 Defence
SEA1000

Program team

Annex D [UNCLASSIFIED]

Document specifies requirements for a particular aspect of the use and operation of the end product
Refuse access
Exempt entire document under s 33(a)(iii).

Exempt under s 33(a)(ii):

· Section 3 - paragraph 2, 5th line from 6th word through to and including 12th word

·   Section 6.1 - Figure 1 in entirety

·   Section 6.2 - paragraph 2 - dot points 1 and 2

·   Section 6.2 - paragraphs 4 – 6

·   Section 6.3.1 – paragraph 2

·   Section 6.4 – paragraph 3

·   Section 6.7.2 – paragraph 2, second dot point

·   Section 8 – paragraph 2, line 5, 6th word up to and including 12th word

·   Section 8, paragraph 5 – third line 9th word to end of paragraph

·   Section 9 – line 6 of first table.

43. 49 Oct 2014 Defence
SEA1000

Program team

Annex D [FOUO]

Document details an element of the deliverable relating to the ongoing performance of the end product
Refuse access
Exempt entire document under s 33(a)(iii).

Exempt entire document under s 33(a)(ii)

EXCEPT

·   Clause 6.6

·   Clause 6.13 – 6.16

44. 26 Oct 2014 Defence
SEA1000

Program team

Annex D [FOUO]

Document sets out particular technical requirements for design and construction
Refuse access Exempt entire document under ss 33(a)(ii), 33(a)(iii).

45. 39 Oct 2014 Defence
SEA1000

Program team

Annex D [FOUO]

Document details an element of the deliverable relating to the ongoing performance of the end product
Refuse access
Exempt entire document under s 33(a)(iii).

Exempt entire document under s 33(a)(ii)

EXCEPT clause 5.2, paragraph 1, first sentence.

46. 22 Oct 2014 Defence
SEA1000

Program team

Annex D [FOUO]

Document sets out high-level design requirements
Refuse access Exempt entire document under ss 33(a)(ii), 33(a)(iii).

47. 80 Oct 2014 Defence
SEA1000

Program team

Annex D [UNCLASSIFIED]

Document sets out high-level requirements for design, use and operation of submarines
Refuse access
Exempt entire document under s 33(a)(iii).

Exempt under s 33(a)(ii):

·   Clause 1.2 – Figure 1

·   Clause 2.1 - Tables 2 through to and including Table 5

·   Clause 2.2 – Table 6

·   Clause 2.3 – Tables 7 through to and including Table 10

·   Clauses 3.3 – 3.7 in their entirety including Table 11 through to and including Table 15

·   Figure 6

·   Table 19

·   Clause 4.1.3 – paragraphs 4 through to and including paragraph 6

·   Figure 7

·   Figure 8

·   Figure 11

·   Figure 12

·   Clause 4.1.7 - paragraphs 2 and 3

·   Figure 13

·   Figure 14

·   Tables 21 through to and including Table 25

·   Annex A – paragraph 4

·   Annex A – Table 31

·   Annex A - paragraphs 6 and 7

·   Annex B – Figure 18

·   Annex B – Figure 19

·   Annex B – paragraph 27 first sentence

·   Annex C – Table in entirety

·   Clause 7 - Line 6 of first table.

48. 77 March 2015 Defence
SEA1000

Program team

Annex D [FOUO]

Document sets out high-level design requirements
Refuse access Exempt entire document under ss 33(a)(ii), 33(a)(iii).

49. 1 Defence
SEA1000

Program team

Annex D [UNCLASSIFIED]

Index list of documents to support Statement of Work (categories of Design Strategies, Design Instructions and Design Disclosure)
Refuse access Exempt entire document under ss 33(a)(ii), 33(a)(iii).

50.
DOCUMENT TITLES:

Exemption claims under s 33(a)(iii) remain over document titles as follows:

-     In full, over documents numbered 10-11, 13, 17, 19-20, 26, 36 and 38-49.

-     In part over document 22, words 2 and 5 only (of 5 words)
s 33(a)(iii)