WIGNEY J:
1 The applicant, Mr Michael Bachelard, is a journalist. He requested the respondent, the Australian Federal Police (AFP), to give him access to certain documents pursuant to s 15 of the Freedom of Information Act 1982 (Cth) (FOI Act). The documents specified in the request were statements of three identified persons and a report by "AFP professional standards" in respect of an identified subject-matter. The AFP identified four documents that fell within the scope of the request, however a delegate of the AFP decided to refuse access to all four documents in full on various grounds.
2 After unsuccessfully pursuing an internal review and a review by the Australian Information Commissioner, Mr Bachelard applied to the then Administrative Appeals Tribunal for a review of the AFP's decision. The Tribunal affirmed the AFP's decision to refuse access to the requested documents on various grounds, including that: the documents would disclose, or enable a person to ascertain, the existence or identity of a "confidential source of information … in relation to the enforcement or administration of the law" and were therefore exempt documents pursuant to s 37(1)(b) of the FOI Act; disclosure of the documents would, or could reasonably be expected to have "a substantial adverse effect on the management or assessment of personnel" by the AFP, or have a "substantial adverse effect on the proper and efficient conduct of the operations" of the AFP, and were therefore conditionally exempt pursuant to s 47E(c) and (d) of the FOI Act; disclosure of the documents would involve the "unreasonable disclosure of personal information about any person" and were therefore conditionally exempt pursuant to s 47F(1) of the FOI Act; and, in respect of the documents said to be conditionally exempt, access to the documents would, on balance, be contrary to the public interest pursuant to s 11A(5) of the FOI Act.
3 Mr Bachelard appealed to this Court from the Tribunal's decision on a question of law pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). He identified several questions of law and contended that the Tribunal made several errors of law.
4 The reasons for judgment of McDonald J comprehensively address the procedural history of the matter, the facts and evidence before the Tribunal, the Tribunal's reasons for judgment, Mr Bachelard's grounds of appeal, and the parties' respective submissions. I gratefully adopt what his Honour has written in that regard. It is unnecessary to add to it. I agree with McDonald J that the Tribunal erred in law in affirming the AFP's decision, that Mr Bachelard's appeal should be allowed, that the Tribunal's decision should be set aside, and that the matter should be remitted to the Administrative Review Tribunal to be determined in accordance with law.
5 I also substantially agree with McDonald J's reasons for arriving at those conclusions. I propose, however, to provide some short additional reasons in respect of Mr Bachelard's first ground of appeal, which concerns the Tribunal's finding that the requested documents were exempt documents because their disclosure would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law. In my view, the Tribunal's reasons for finding that disclosure of the documents would disclose the identity of confidential sources of information reveal that the Tribunal misconstrued the expression "confidential source of information" in s 37(1)(b) of the FOI Act and asked itself the wrong question in addressing whether the documents were exempt documents pursuant to that provision.
6 The expression "confidential source of information" in s 37(1)(b) of the FOI Act has typically been construed consistently with the principles applicable to the public interest immunity that attaches to information that would reveal the identity of confidential police (or other law enforcement agency) informants. That species of public interest immunity has been recognised in many cases since Marks v Beyfus (1890) 25 QBD 494: see Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674. The rationale for the immunity is that, if the police or other law enforcement agencies could be compelled to reveal the identity of confidential informers, "sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime": Stuart at 674-675.
7 In Re Croom v Accident Compensation Commission (1989) 3 VAR 441 at 459, the President of the Victorian Administrative Appeals Tribunal (Judge Jones) at the time noted, in respect of the provision in the Freedom of Information Act 1982 (Vic) which was in relevantly the same terms as s 37(1)(b) of the FOI Act, that the provision was "analogous to that aspect of the law of public interest privilege in litigation which embraces statements made by informers to the police or to other governmental or non-governmental bodies" and was "designed to protect the identity of the informer". The President also noted that what is "at the heart of the exemption is the protection of the informer not the subject matter of the communication". The President concluded, among other things, that statements which various people had provided to an investigator were not confidential sources of information because "the statements did not result from an undertaking that they would be kept confidential and only provided on that basis" (at 459).
8 An appeal from the President's decision was dismissed by the Supreme Court of Victoria. Justice O'Bryan, with whom Young CJ and Vincent J agreed, held that it was "clearly open to the tribunal to arrive at the finding that the evidence did not disclose that any witness provided information in confidence": Accident Compensation Commission v Croom [1991] 2 VR 322 at 329. His Honour went on to observe that the "plain meaning one might ascribe to [the relevant provision] is that it is concerned with protection of the 'informer' and not with the protection of a potential witness who would prefer not to be identified". His Honour emphasised in that regard that "[p]ublic interest has dictated for a long time the need to protect the true 'informer' but a reluctant witness has never attracted immunity at common law" and that "the words 'confidential source of information' do not apply to a potential witness in a civil proceeding who would prefer to remain anonymous for the time being".
9 In Jorgensen v Australian Securities and Investments Commission 208 ALR 73; [2004] FCA 143, Weinberg J similarly observed (at [66]) that s 37(1)(b) "protects the position of confidential informants in relation to the enforcement of the law".
10 In Department of Health v Jephcott (1985) 8 FCR 85; [1985] FCA 536, Forster J (at 89) adopted the interpretation of the expression "confidential source" in a decision of the United States District Court in Luizaich v United States 435 F Supp 31 (D Minn 1977) at 35, which was that "a source is confidential if the information was provided under an express or implied pledge of confidentiality". His Honour went on to note that "[n]o doubt the main reason for protecting the identity of informants is to encourage them and others like them to give information, or at least not to discourage them from doing so, in order to assist the enforcement or the administration of the law". Keely J held (at 90) that "a confidential source of information" in s 37(1)(b) of the FOI Act "means a person who has supplied information on the understanding, express or implied, that his or her identity will remain confidential".
11 It may be noted that the meaning that has been given to the expression "confidential source of information" in s 37(1)(b) of the FOI Act, and cognate provisions in other legislation, essentially focusses on the position of the informer and the circumstances in which he or she provided information to the law enforcement authorities. In particular, the focus is on whether the informer or source provided the information subject to, or as a consequence of, an assurance or undertaking given by the law enforcement authority that their identity would remain confidential and not be revealed, or at least an understanding from the circumstances in which the information was provided that the law enforcement authority would not disclose their identity. The rationale for the protection afforded to information that would tend to reveal the confidential source's identity is that people in a like position to the source may be reluctant to provide information to the authorities if, despite having been given such an assurance or undertaking, law enforcement authorities may nonetheless be compelled to disclose information that would reveal the identity of the source.
12 Three other points should be noted about the meaning to be given to the expression "confidential source of information" in this context.
13 First, the protection that is afforded is in respect of information that would reveal the identity of the confidential source of information, not in respect of the information provided to the authorities by the source.
14 Second, in determining whether a person is or was a confidential source of information, the focus is not so much on the position of the recipient of the information - the relevant law enforcement authority - and how it intended or was required to treat or deal with the information from the source. In particular, the question is not whether the recipient of the information unilaterally considered that the information it received from the source should remain confidential, or considered that the identity of the source should remain confidential, or had a practice of treating such information as confidential information, or was required by statute or otherwise to keep such information confidential. A source does not become a confidential source simply because the recipient of the information decided or was required to treat the information received from the source, including their identity, as being confidential. Rather, the focus of the assessment is on the position of the informer, and the circumstances and basis upon which they provided information to the authorities. Did the source provide the information under an express or implied assurance or undertaking that their identity would remain confidential, or on the understanding gleaned from the circumstances in which the information was provided that the law enforcement agency would not disclose their identity?
15 Third, the exemption is concerned with the protection of informers, not with mere reluctant witnesses who would prefer to remain anonymous until they were required to give evidence.
16 The Tribunal's reasons for finding that the disclosure of the four documents in question would, or could reasonably be expected to, disclose or enable a person to ascertain the existence or identity of a confidential source, focussed entirely, or almost entirely, on the position of the AFP as the recipient of information from a source or sources, and on the nature of that information. In particular, the Tribunal's reasons focussed entirely, or almost entirely, on the fact that AFP officers, employees and appointees are subject to broad secrecy provisions that, in general terms, prohibit them from divulging or communicating any information received by them in the course of their duties, except where the information is divulged or communicated for particular purposes relating to the execution of their duties.
17 For instance, at [36] of its Decision and Reasons for Decision dated 29 February 2024, the Tribunal observed that "[t]here is a general secrecy provision in s 60A of the AFP Act [the Australian Federal Police Act 1979 (Cth) - AFP Act] that prohibits relevant AFP personnel from divulging or communicating any information obtained in the course of carrying out, performing or exercising a duty, function or power under the AFP Act". The Tribunal similarly noted that there was a "more specific confidentiality obligation" in the AFP Commissioner's Order on professional standards, the effect of which was said to be that "any information obtained when investigating or managing a complaint must be treated in confidence": Reasons at [36]. The Tribunal concluded that the "express statutory obligation of confidentiality" - which was presumably a reference to s 60A of the AFP Act - extended to "the identity of those who provided the three statements": Reasons at [37].
18 The Tribunal did briefly refer to the evidence which had been relied on by the AFP in support of its objection to disclosure, being an affidavit sworn by a senior AFP officer, Commander Jason Kennedy. That evidence was said by the Tribunal to establish that the three statements "are confidential and have not been publicly disclosed" and that the AFP "at all times has treated its sources as confidential and has not disclosed them": Reasons at [38]. The assertions of Commander Kennedy which were identified and relied on by the Tribunal focussed almost entirely on the confidentiality of the statements from the AFP's perspective. The statements were said to be confidential because the AFP had treated them as such and had not disclosed them.
19 Commander Kennedy's affidavit did not include any evidence, or any clear or unequivocal evidence, about the precise circumstances in which the information in the three statements was provided to the AFP. In particular, Commander Kennedy's affidavit contained no evidence, or no clear and unequivocal evidence, to the effect that the sources provided the information in the statements subject to, or because they had been given, an assurance or understanding that their identities would remain confidential. Nor did Commander Kennedy's affidavit contain any clear or unequivocal evidence to the effect that the circumstances in which the information was provided were such that the sources had cause to understand or believe that their identities would always remain confidential. The high point of Commander Kennedy's evidence concerning the circumstances in which the source or sources provided the information in the statements to the AFP was a bare assertion (in paragraph 26c. of his affidavit) that the "information provided was obtained in confidence". Even that assertion appeared to focus on the obtaining of the information from the AFP's perspective. The information was said to have been obtained by the AFP in confidence. It was not said to have been provided by the source in confidence, or on the basis of an express or implied assurance or undertaking by the AFP that the information would at all times be treated confidentially.
20 In its reasons, the Tribunal stated that Commander Kennedy's assertion that the three statements were confidential was "consistent with the position expressed by the statement providers who did not consent to disclosure": Reasons at [38]. The evidentiary basis for that statement is at best unclear. There does not appear to have been any evidence before the Tribunal to the effect that the persons who provided the statements had indicated, at the time they provided the statements, that they did not consent to the disclosure of their statements because they did not consent to their identities being revealed. Commander Kennedy's affidavit does not include any evidence to that effect.
21 During the Tribunal hearing, the AFP's legal representative informed the Tribunal, somewhat obliquely, that certain individuals had been consulted pursuant to s 27A of the FOI Act, and that those individuals had responded that they did not consent to the disclosure of their information. The Tribunal was referred in that context to redacted copies of those responses that were apparently included in the "T" documents that were before the Tribunal, as well as unredacted copies that were also apparently included in the confidential "CT" documents that were before the Tribunal. There was an equally oblique reference to that topic in the AFP's confidential statement of facts, issues and contentions. If that was the source of the Tribunal's finding (at Reasons [38]) that the statement providers did not consent to the disclosure of their statements, the Tribunal erred in having regard to that material in determining whether the statement providers were a "confidential source of information" for the purposes of s 37(1)(b) of the FOI Act. Responses that the AFP may have received as part of the consultation procedure in s 27A of the FOI Act may have been relevant to the application of the personal privacy conditional exemption under s 47F of the FOI Act. It is, however, difficult to see how those responses could be relevant to the question whether the sources were, or considered themselves to be, confidential sources for the purposes of s 37(1)(b) of the FOI Act.
22 The Tribunal's reasons in my view reveal that the Tribunal misconstrued s 37(1)(b) of the FOI Act and asked itself the wrong question. The Tribunal did not consider, or ask itself, whether the person or persons who provided the information recorded in the three statements were "confidential sources of information" for the purposes of s 37(1)(b) of the FOI Act because they provided the information subject to, or as a consequence of, an express or implied assurance or undertaking that their identities would remain confidential and not be revealed, or because they understood from the circumstances in which they provided the information that their identities would not be revealed. Indeed, the Tribunal gave little, if any attention, to the circumstances of the sources and the basis upon which they provided information to the AFP. Rather, the Tribunal focussed entirely, or almost entirely, on the position of the AFP and reasoned, in effect, that because AFP officers and employees are bound by general secrecy obligations, it must follow that all information provided to the AFP during an inquiry is provided in confidence, and therefore all the sources of that information are confidential sources. In so reasoning, the Tribunal effectively construed the expression "confidential source of information" as covering all information provided to the AFP which is subject to the general secrecy obligations in s 60A of the AFP Act. In my view that is an overly broad and erroneous construction of the expression.
23 The mere fact that AFP officers and employees are bound by the secrecy obligations in s 60A of the AFP Act in my view cannot alone support a finding that the source or sources of the information in the three statements were or are confidential sources for the purposes of s 37(1)(b) of the FOI Act. If that were the case, every person who provided information to the AFP during an AFP investigation would be a confidential source, even if the person provided the information willingly and openly and without any understanding, or assurance from the AFP, that their identity would not be disclosed. It is difficult to see how a person who provided information to the AFP could be said to be a confidential source simply because the AFP officer or employee to whom the information was provided was bound by general secrecy obligations, even if the source was unconcerned about whether their identity could or would be disclosed.
24 I should perhaps emphasise that I do not suggest that the fact that a person provided information to the AFP during, or for the purposes of, an AFP investigation, including an investigation under Pt V of the AFP Act, is irrelevant to the question whether the person who provided the information was or was not a confidential source. That is a circumstance that may, in conjunction with other circumstantial evidence, support an inference that the person provided the information on the understanding that his or her identity would remain confidential and would not be disclosed by the AFP. The point is that the fact that the information was provided in circumstances which engaged the general secrecy provision in s 60A of the AFP Act, or any similar general secrecy provision, would be unlikely alone to support that inference. The same can be said concerning the circumstance that the AFP considered the information to be confidential when it was received.
25 I should finally note that I also agree with McDonald J that the Tribunal's reasons for finding that disclosure of the documents in question would disclose the identity of confidential sources of information were based on a misunderstanding of s 60A of the AFP Act. Most significantly, the Tribunal appears to have proceeded on the basis that s 60A of the AFP Act effectively precluded the AFP, or its members or officers, from disclosing the three statements, and therefore the identity of the person or persons who provided those statements, in any circumstances. As McDonald J has pointed out, however, the general prohibition in s 60A of the AFP Act in respect of the divulging or communication of information obtained by an AFP officer or employee in the course of their duties is subject to several exceptions. Perhaps most significantly, an AFP officer or member is not prohibited from divulging or communicating information in carrying out, performing or exercising their duties, functions or power under, inter alia, the AFP Act. It follows that an AFP officer or member would not be prohibited from disclosing the contents of the three statements in question in this matter, and therefore the identity of the source or sources of the information in those statements, if that disclosure occurred in the performance or exercise of the officer or member's duties, functions or powers under the AFP Act.
26 A simple example is capable of both demonstrating the far-reaching scope of that exception and why the general secrecy provision in s 60A of the AFP Act cannot alone provide a proper basis for a finding that a person who provided information to the AFP was necessarily a confidential source for the purposes of s 37(1)(b) of the FOI Act. There could be little doubt that, if the outcome of the relevant AFP professional standards inquiry had been that a person was charged with an offence, or became the subject of some disciplinary or civil proceeding, s 60A of the AFP Act would not preclude any officer or employee of the AFP from disclosing the contents of the three statements for the purposes of that prosecution or other proceeding. The disclosure of the statements in those circumstances would be permitted because the disclosure would be for the purpose of the performance or exercise of the officer or member's duties, functions or powers.
27 It is also highly likely that a person who provided a statement to the AFP for the purposes of an investigation or inquiry (including an investigation or inquiry pursuant to Pt V of the AFP Act concerning professional standards and AFP conduct and practice issues) would be aware that the AFP would be permitted, if not required, to disclose the statement (and therefore the person's identity) if the investigation or inquiry resulted in court or other curial proceedings. It is, in those circumstances, difficult to see how a person who provided a statement to the AFP during an investigation or inquiry could be said to be a confidential source simply because of the general secrecy obligations in s 60A of the AFP Act.
28 A similar point was made in Re Croom. In that case, the respondent claimed, among other things, that an investigator's report was an exempt document under the equivalent Victorian legislation on the basis that disclosure of the report would reveal the identity of confidential sources of information, namely persons who had provided statements to an investigator who had been retained by an insurance company that was disputing the applicant's insurance or workers compensation claims. The investigator had told the people who made the statements that he would do his best to keep the statements confidential. In the Victorian Administrative Appeals Tribunal, the President found that the people who provided the statements were not "confidential sources of information". The President's reasoning included the following (at 460):
The reality is that the people interviewed by [the investigator] were potential witnesses at a hearing in a court or before the Tribunal or body dealing with workers compensation. In my view, they would be likely to realise this and that, notwithstanding the statements by [the investigator] about confidentiality, the information they provide might ultimately become public through some formal process. Indeed, that could easily occur through the tender of the report in proceedings before the ACT [Accident Compensation Tribunal], which is a relatively common occurrence.
29 As noted earlier, the President's decision was upheld on appeal by the Supreme Court of Victoria in Croom. The statements by O'Bryan J, referred to earlier, to the effect that the provision in the relevant Victorian legislation equivalent to s 37(1)(b) was not concerned with the "protection of a potential witness who would prefer not to be identified" may be taken to be a reference to that aspect of the President's reasoning.
30 For the above reasons, and for the reasons given by McDonald J, I would conclude that the Tribunal misconstrued s 37(1)(b) of the FOI Act and erred in law in concluding, for the reasons it gave, that the four documents in question were exempt documents by reason of that provision.
31 As noted earlier, I substantially agree with McDonald J's reasoning in respect of all the other grounds of appeal. It is unnecessary for me to add anything in respect of the other grounds of appeal. I agree with McDonald J's conclusions in respect of the other grounds of appeal and with the orders proposed by his Honour.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.