THE public interest in non-disclosure
19 The Minister relies on two affidavits of Michael John Minns. Mr Minns is an Assistant Secretary in a branch of the Department responsible for verifying the identity of persons who apply for visas or citizenship.
20 In his affidavit affirmed on 7 June 2017 (first affidavit), Mr Minns states that production of the redacted parts of the DE report would, to adopt his words:
(1) reveal the methods used by the Department in the course of its regular examination of identity documents;
(2) reveal information provided to the Department by international border and security agencies on a confidential basis, the release of which would compromise ongoing co-operation between the Department and those agencies; and
(3) likely frustrate, compromise or impede the Department's ongoing ability to detect fraudulent and counterfeit identity documents, particularly identity documents, particularly those emanating from Afghanistan:
to the prejudice of, among others, the Department, the Australian Government and the wider Australian community.
21 Mr Minns affirmed a further affidavit on 28 August 2017 (second affidavit). The second affidavit is presently the subject of suppression and confidentiality orders. It has not been read by the applicant or his legal representatives. The applicant did not object to the Court reading the affidavit for the purpose of determining the public interest immunity claim.
22 On the basis of the first and second affidavits, the following general propositions may be accepted:
(1) understanding a person's true identity is crucial to making an informed assessment about whether a person or his or her associates pose a threat to Australia's national security;
(2) the Department's identity verification activities are crucial to the operation of Australia's terrorism threat advisory system;
(3) it is a core role of the Department to verify the identity of non-citizens who apply for visas and Australian citizenship;
(4) document examiners within the Department rely upon "reference information", some of which is obtained though international law enforcement sources on a confidential basis and is not otherwise obvious or publicly available;
(5) document examiners within the Department utilise confidential methods and technology; and
(6) where the methods employed by the Department are not publicly known and not otherwise obvious in nature, the disclosure of the methods might diminish the Department's ability to detect counterfeit documents by enabling counterfeiters to take steps to avoid detection by those methods.
23 The importance of the interests sought to be protected by the present claim cannot be seriously questioned.
24 In relation to the document examination methods of the Department, it is submitted by the respondents that the protection of methods of that kind is a "traditional head for claiming public interest immunity": respondents' written submissions, [29]. The submission may be accepted to the extent that where disclosure of confidential intelligence capabilities would enable counter-intelligence capabilities to be developed, the injury to the public interest is such that a compelling case favouring disclosure must be established. However, to say that is to say nothing more than to restate the test that is to apply in the resolution of the claim, being a test involving weight and relativity.
25 The circumstance that the material sought to be withheld from production concerns national security interests is, of course, an important consideration to which considerable weight must be attached: Alister at 435. However, the weight to be afforded that circumstance must always be assessed in light of the circumstances of the case. Disclosure of material forming the subject of a claim may be injurious to the public to a greater or lesser degree. The circumstances may be such that disclosure would create a risk of harm, but the risk is properly characterised as low and the feared harm properly characterised as slight. Whilst, ordinarily, it will not be difficult to establish a compelling case against disclosure in security cases, I do not accept the proposition that where the interest sought to be protected relates to national security, the claim must be upheld except where it can be shown that the document is critical to establishing the innocence of a person accused of a criminal offence. Whether a sufficiently compelling case favouring the disclosure of the material can be established remains to be assessed in all of the circumstances, the nature and subject matter of the proceedings among them. The case for disclosure will only be sufficient if it outweighs the interests favouring non-disclosure in all of the circumstances. The authorities upon which the respondents relied are not to be understood as prescribing binding legal principles requiring claims for immunity based on national security grounds to be upheld in all cases except those in which the criminal guilt or innocence of a person is at stake.
26 The redacted material comprises four paragraphs on page two of the document appearing under the heading "I have found the following as a result of my examination". Those paragraphs in turn refer to two pages of an attachment titled "Attachment 1", each of which is redacted in full. Although the redacted material refers to "Attachment 2" and "Attachment 3", the redacted pages form a part of the only attachment to the DE report. The remaining five pages of that attachment have been disclosed to the applicant.
27 It is said by Mr Minns that the disclosure of the information contained in the first redacted paragraph would have the effect of revealing matters that are not "obvious" to persons who might fraudulently alter documents (second affidavit, [28]). The concerns are twofold. First, it is said that disclosure of the information would in turn disclose the particular focus of the document examiner's attention. Whilst that is true, I do not agree that the focus of the examiner's attention is "not obvious" or otherwise confidential. The particular focus of the examiner's attention is made plain in the un-redacted portions of the document and I do not consider the redacted information in the first paragraph to expressly contain any information additional to that which is contained in the un-redacted material: the author of the report considered the relative positions of the photograph and wet stamp to be of significance. Having regard to the information that has already been made known to the applicant, this aspect of the redacted information lacks the quality of secrecy necessary to establish a prima facie claim for public interest immunity. The first paragraph otherwise contains an opinion or supposition expressed by the examiner about the significance of the relative placement of the photograph and the wet stamp. The opinion appears to be orthodox and there is no specific claim by Mr Minns that disclosure of the fact or content of the opinion would, in and of itself, undermine the relevant capacities of the Department.
28 Mr Minn's other concern about the first redacted paragraph relates to the methodology by which a particular irregularity in the document was identified. The particular methodology is revealed in the redacted portion of Attachment 1.
29 To the extent that Mr Minns deposes, without qualification, that all methodologies, tools or technologies used by document examiners are to be regarded as confidential, I do not accept the unqualified evidence.
30 In the absence of specific evidence about a particular methodology, it may be open to a court to infer, from the very nature of the methodology, that a quality of confidentiality or secrecy attaches to it. In other instances, the inference will not be reasonably open, especially where the use of the tool in relation to the document is neither surprising nor unorthodox. By way of perhaps extreme example, a broad assertion of confidentiality attaching to all methodologies and tools employed by undercover agents could not on any reasonable view support a claim for public interest immunity in respect of information revealing that an agent had used binoculars.
31 It is reasonable to infer that persons of ordinary intelligence who might seek to avoid detection would readily expect their counterfeit articles to be subject to very close forensic scrutiny, and that tools may be employed that enable examination of the document other than with the naked eye.
32 Proper respect is to be afforded the evidence of Mr Minns as the officer giving evidence in support of the claim: Sankey at 45 - 46. However, the requirement that the Court give considerable weight to claims concerning national security does not require a court to ignore gaps in the evidence in respect of specific matters that ought to be deposed to in support of the claim. Whilst I would accept Mr Minns' generalised evidence that the availability and use of tools revealed in the DE report are "not obvious", it does not follow that the Court must regard the availability and use of the tools as secretive, such that they could not be discovered by a moderate degree of forethought or unsophisticated research.
33 If utmost secrecy is asserted in respect of a particular tool, it is reasonable to expect the respondents to adduce evidence to the effect that use of that particular tool could not be readily ascertained or predicted, including by reference to information available in the public domain. Mr Minns' evidence does not go so far in respect of the particular tools in question. This affects the Court's assessment of the degree of the risk of injury to the public interest that may be created by disclosure of the material to the applicant in the proceedings.
34 The second paragraph of the redacted material concerns an irregularity affecting the Taskera. This aspect of the claim is to be considered in light of what is revealed in the un-redacted portion of the report, namely that "the area under the photo has been altered". There can be no proper claim for confidentiality in relation to the mere fact that the document examiner examined the area under the photograph, determined it to have been altered and considered that issue to be significant.
35 Insofar as the nature of the alteration under the photograph is sought to be protected, it is difficult to reconcile this aspect of the claim for public interest immunity against the circumstance that the nature of the irregularity concerning the placement of the photograph over the wet stamp is not sought to be protected. Mr Minns does not explain why the disclosure of the nature of the alteration to the area under the photograph is the subject of this claim and yet information concerning the relative placement of the wet stamp and the photograph is not. In light of this peculiarity, it is difficult to afford significant weight to that part of Mr Minn's affidavit in which he claims, at a level of generality, that disclosure of particular areas of significance to a document examiner would assist persons to avoid detection in their attempts to fraudulently alter documents in the future. The nature of the wet stamp irregularity is revealed, and yet the nature of the alteration under the photograph is not. The differences are curious and unexplained.
36 The remainder of the second paragraph and the whole of the third paragraph of the redacted material contain opinions and inferences drawn by the document examiner in relation to the alteration of the area under the photograph and the circumstance in which it might have occurred. The reasoning reveals additional facts about the nature of the alteration which appear relevant, in the document examiner's assessment, to the later conclusion (already disclosed to the applicant) that the document has been "fraudulently altered".
37 The fact that a document examiner may express opinions about why a document has been altered and by whom is not of itself confidential, nor do the opinions themselves have a quality of confidence about them. Next, it is said by Mr Minns that the information in Attachment 1 demonstrates how the particular alteration was made. That is not immediately apparent from the attachment itself. The attachment depicts the alteration but does not, in and of itself, directly reveal information as to how the alteration was effected. If the revelation is indirect, Mr Minns does not explain the inferences a person might draw from the attachment so as to more effectively circumvent detection by the Department. To the extent that the attachment reveals the degree of scrutiny to which a document may be put, that, too, is a matter that may fairly be anticipated by many (although not all) persons intent upon creating counterfeit articles.
38 The fourth paragraph of the redacted material relates to the examiner's determination that "there is ... evidence that the document has been reassembled". This paragraph discloses the particular manner in which the document is said to have been reassembled. The method by which the reassembly was identified by the document examiner is not explained in the paragraph, nor is it revealed in any other part of the DE report. I accept that disclosure of this information would reveal that certain features of the Taskera were considered to be of significance to the examiner, and that the examiner considered those features to evidence that the document had been reassembled. Mr Minns' evidence is that the particular irregularity identified by the document examiner is similar to features identified by document examiners in other cases, such that the revelation of the fact of the irregularity might enable others to circumvent detection of similar irregularities, presumably by taking more care when replicating them.
39 Again Mr Minns' concerns about persons gaining knowledge about the particular features of documents that may be of interest to document examiners are difficult to reconcile against the revelation, with no claim for immunity, of a number of other aspects of the Taskera that were of interest to the examiner. No explanation is given by Mr Minns as to why he has concerns about the irregularity contained in paragraph 4, and yet apparently no concerns about the revelation of the other irregularities thought by the examiner to be of significance.
40 Whilst Mr Minns' affidavit evidence refers to confidential reference material and bodies of confidential knowledge obtained by Australian authorities for use in forensic document examination, it is not at all clear whether any such information was relied upon by the author of the DE report and, if so, how the information would be revealed if the report were to be disclosed. This is a further disconnect between the generalised paragraphs of both the first and second affidavits and the particular information subject to the public interest immunity claim. I consider this aspect of the public interest immunity claim to be of a boilerplate kind, involving a generalised claim of a risk to national security without sufficient evidence to demonstrate that the risk would arise or transpire if the material forming the subject matter of the claim were to be divulged.
41 In summary, with respect to that part of the redacted information that has already been made known to the applicant, I do not consider there to be a prima facie claim for public interest immunity. To that extent, the claim is not to be upheld.
42 As I have said, I do not consider the evidence relied upon by the respondents to be sufficient to show that all persons intent upon fraudulently replicating or altering a document would be assisted or enabled if it were revealed that the document examiner used the tools referred to in Attachment 1. I nonetheless accept that there may be some persons to whom the potential for a document examiner to use such tools would not occur, even with some forethought or unsophisticated research. I find there to be a prima facie claim of public interest immunity in that respect.
43 In respect of the remainder of the information, I am satisfied that there is a prima facie claim for public interest immunity, in that disclosure of the information may create a risk that, if made publicly available, the information may enable a person, so-minded, to take steps to avoid altering a document in such a way that was allegedly detected in the present case.
44 Whilst I accept that there is some risk that the effectiveness of the Department's document examination processes may be undermined by the disclosure of the material (other than the non-confidential material), I consider the degree of risk to be low and the degree of incursion into the Department's capacities to be minor. However, the ultimate harm that may be caused by persons assuming false identities to enter and remain in Australia is, as I have said, significant and, accordingly, there is a real public interest in non-disclosure of that part of the material that is not already known.