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PRACTICE AND PROCEDURE - freedom of information - scope of review - application for exercise of powers in the Intelligence and Security jurisdictional area - 'national security information' - satisfaction - exercise of discretion - direction made

Administrative Review Tribunal Act 2024 (Cth), ss 32, 134, 179

Freedom of Information Act 1982 (Cth), ss 4, 22, 33, 47C, 47E, 47F, 54C, 54L, 54W, 55K, 57A, 58

Judiciary Act 1903 (Cth), s 55ZG

National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 7, 8, 9, 10, 11

Bird v DP (a pseudonym) [2024] HCA 41

Coulton v Holcombe [1986] HCA 33

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114

Tasty Chicks Pty Ltd & Ors v Chief Commissioner of State Revenue [2011] HCA 41

1. This is an application for a direction under s 134(2) of the Administrative Appeals Tribunal Act 2024 (ART Act) that the Tribunal's powers in the proceeding are to be exercised in the Intelligence and Security jurisdictional area (ISJA).
2. The power to do so is conferred on the President.
3. Under s 179(1) of the ART Act, the President has delegated to me the power to determine this issue under s 134(2).

1. Mr Patrick requested access to the following information under the Freedom of Information Act 1982 (FOI Act):

Emails and letters between the Australian War Memorial (including to and from Craig Stockings) and the DFAT that discuss suggested content changes/variations/inclusions/omissions by DFAT for the proposed official history of Australia's East Timor operations.

2. An authorised decision maker decided (original decision) the 11 documents within the scope of the application are:

(a) exempt under s 33(a)(iii) of the FOI Act as they affect international relations; and > > (b) conditionally exempt under s 47C of the FOI Act as they contain information about deliberative processes.[1]

3. Mr Patrick requested internal review of this decision.
4. The internal review decision (IR decision) maker did not refer to or expressly consider the applicability of s 33 of the FOI Act and decided the 11 documents:

(a) are conditionally exempt under s 47C (deliberative processes) and s 47E (certain operations of agencies) of the FOI Act; and > > (b) should be partially released with exempt material deleted.[2]

5. Mr Patrick applied for review of this decision by the Office of the Australian Information Commissioner (OAIC).
6. The OAIC issued a decision: Patrick and Australian War Memorial (Freedom of Information) [2024] AICmr 75 (AIC decision) under s 55K of the FOI Act.[3] Despite passing reference to s 33 of the FOI Act,[4] the AIC decision does not expressly consider or find material exempt under s 33 of the FOI Act.[5]
7. The AIC decided to set aside the original decision as varied by the IR decision and in substitution decided:

(a) irrelevant personal information should be deleted under s 22(1)(a)(ii) of the FOI Act; > > (b) material previously found to be conditionally exemption under s 47C and s 47E(d) is not exempt; and > > (c) information about individuals is conditionally exempt under s 47F and disclosure of such information would be contrary to the public interest.[6]

8. The Director of the Australian War Memorial lodged an application for review of this decision by the Tribunal. The application for review was lodged under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and the Administrative Tribunal Act 2024 (ART Act) came into effect on 14 October 2024, establishing the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, the Tribunal has jurisdiction to conduct the review.
9. Operation of the AIC decision was stayed.
10. On 19 December 2024, by consent, the stay order was varied under s 32 of the ART Act in order to permit release of additional material to Mr Patrick.
11. The dispute has narrowed to a sharp point. The Director asserts parts of the documents are exempt under s 33(a) of the FOI Act, for reasons of:

(a) national security and defence (parts of 2 pages) under s 33(a)(i) and (ii); and > > (b) damage to international relations (parts of 20 pages) under s 33(a)(iii).

12. The Director requested the President to make a direction under s 134(2) of the ART Act.
13. It is this issue, alone, that is the subject of this decision.

1. The parties submit the AIC decision is not an 'intelligence and security decision' for the purposes of s 134(1) of the ART Act and for this reason the Tribunal is not required to exercise its powers in this proceeding in the ISJA.
2. The Director alleges the controversial text involves 'national security information' disclosure of which would, or could reasonably be expected to, cause damage to the security of the Commonwealth or the international relations of the Commonwealth. Even though these grounds of exemption were not addressed in the IR decision and they were not agitated in the OAIC proceeding, they are now pressed. The Director observes if exemption under s 33 had been pressed in the OAIC proceedings, the present application would proceed in the ISJA. The Director argues the controversial text relates to national security information which should be protected under the special rules applying to the ISJA in Part 6 of the ART Act.
3. Mr Patrick asserts the Director did not run his case before the OAIC on grounds of exemption under s 33 of the FOI Act, and he should not be permitted to do so in these proceedings. He contends the FOI Act creates two independent statutory review stages under Part VII and Part VIIA, in which the Commonwealth, as a model litigant, should not have the opportunity to raise matters in the latter which were not raised in the former. Should this be entertained, Mr Patrick alleges he will face an entirely new case in the Tribunal which was not put to the OAIC and in responding to such a case he will face the prejudice of additional cost and delay. Mr Patrick submits the Tribunal's power to limit the scope of the review under s 53 of the ART Act should be exercised to exclude agitation of matters relating to security, defence and international relations.

1. The issue is to be determined under s 134 of the ART Act:

(1) The Tribunal's powers in relation to a proceeding that relates to an intelligence and security decision are to be exercised in the Intelligence and Security jurisdictional area. > > Other proceedings involving national security information > > (2) If the President is satisfied that any other proceeding in the Tribunal would involve national security information, the President may direct that the Tribunal's powers in relation to the proceeding are to be exercised in the Intelligence and Security jurisdictional area. > > (3) The President may do so: > > (a) on application by a party to the proceeding; or > > (b) on the President's own initiative. > > Other proceedings generally > > (4) To avoid doubt, this section does not limit the President's power under subsection 196(4) to direct that the powers of the Tribunal in relation to any other proceeding are to be exercised in the Intelligence and Security jurisdictional area.

2. Mr Patrick's submissions raise issues which require consideration of the nature of the Tribunal's review in the context of the legislative scheme for review of decisions under the FOI Act.
3. By operation of s 57A of the FOI Act, the AIC decision is reviewable by the Tribunal. The powers of the Tribunal on review of the AIC decision are set out in s 58(1):

(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.

4. As can be seen, the scope of the Tribunal's powers for the purposes of the review are not confined to the terms of the AIC decision. This is reinforced by s 54 of the ART Act.
5. I do not accept Mr Patrick's submission the Tribunal proceedings involve an 'appeal' from a 'review' in which the Director's case is limited to that previously put in the OAIC proceedings. As s 58(1) of the FOI Act makes perfectly clear, when exercising the merits review jurisdiction conferred upon it by s 57A(1) of the FOI Act, the Tribunal has power to review any decision that has been made in respect of Mr Patrick's request. The observations of the plurality in Tasty Chicks Pty Ltd & Ors v Chief Commissioner of State Revenue [2011] HCA 41 at [5] do not compel any different conclusion.
6. In consideration of the terms of the original decision, the IR decision and the AIC decision, the Tribunal has jurisdiction and power to determine factual matters for the purposes of s 33 of the FOI Act in respect of the documents within the scope of Mr Patrick's originating access request. This is reinforced by the legislative scheme for decision making and review under the FOI Act. There are four stages.
7. First, under Part III and IV, the original decision maker squarely considered and made factual findings in respect of exemptions, including exemptions under s 33 of the FOI Act.
8. Second, for the purposes of internal review under Part VI, in the exercise of power conferred by s 54C, all relevant matters, including the matters under s 33 addressed by the original decision maker, were squarely before the person who made the IR decision.
9. The IR decision maker did not expressly address s 33 of the FOI Act despite having the power to do so. She found the subject documents were conditionally exempt under s 47C and s 47E. Edited documents were released to Mr Patrick with exempt matter deleted under s 22. From this it might be inferred the original finding of exemption under s 33 was impliedly set aside. The inference is not safely drawn, however. Where only part of a document is within the terms of s 33, by operation of s 31A, access is not required to be given to the whole document. This notwithstanding, where it is possible (and appropriate) to do so, access could be given to an edited document, modified by deletions, under s 22. This is especially so where the controversial parts of the document are covered by another head of exemption.
10. In any event, the IR decision is an 'IC reviewable decision' under s 54L.
11. Third, for the purposes of an 'IC review' under Part VII, the Information Commissioner 'may perform the functions, and exercise the powers, of the person who made the IC reviewable decision': s 55K(2). Thus it can be understood, where the IR decision maker had power to determine if a document, or information or matter within a document, is exempt under s 33, so does the Information Commissioner. This is so whether or not matters germane to s 33 were agitated in the OAIC proceedings or the Commissioner exercised the power available to determine such matters. The power conferred is not conditioned by exercise.
12. Fourth, the Tribunal's jurisdiction to review the AIC decision is conferred by s 57A(1)(a) of the FOI Act. The scope of the Tribunal's review powers conferred by s 58(1) extend to review of any decision made by the Director in respect of the originating access request. They are not confined to the matters decided by the Information Commissioner. Nevertheless, it can be accepted the Tribunal must address the same statutory question or questions raised by Mr Patrick's access request that were before the original decision maker, the IR decision maker and the Information Commissioner. It is those statutory questions which determine the considerations the Tribunal must or must not take into account on review,[7] not simply the matters agitated before or decided by the Information Commissioner.
13. In this context, Part 6 of the ART Act applies special rules which affect the exercise of the Tribunal's powers if the proceeding relates to an 'intelligence and security decision' or where the President is satisfied 'national security information' would be involved. The term 'intelligence and security decision' is given meaning in s 4(1), relevantly 'an exempt security record decision', which is defined to include:

(a) a decision of a kind mentioned in subsection 57A(1) of the Freedom of Information Act 1982 in respect of a document that is an exempt document (within the meaning of that Act) because of section 33 of that Act;

14. The parties' submissions proceed on the understanding that the AIC decision does not meet this threshold and s 134(1) of the ART Act is not applicable. The express terms of the AIC decision lend support to this understanding. It is at least arguable, however, that the decision of the Information Commissioner under s 55K in an IC review includes all matters that were before the person who made the 'IC reviewable decision' under s 54L of the FOI Act, whether or not they were expressly dealt with. As the parties did not address this issue in submissions, I will go no further on this point.
15. The objective intentions expressed in s 3 of the FOI Act, include that 'functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost' and that 'information held by the Government is to be managed for public purposes'. These buttress the right of access subject only to exemptions defined by statutory provisions in Part IV and the importance of the statutory mechanisms for merits review in Parts VI, VII and VIIA. The point is sharpened in the context of proceedings involving contested intelligence and security decisions or national security information which, if divulged, could reasonably be expected to damage the defence, security or international relations of the Commonwealth.
16. Mr Patrick's assertion that allowing the Director to agitate matters not raised in the OAIC proceedings might cause sophisticated litigants to apply under s 54W(b) to bring matters directly to the Tribunal does not advance the matter. The Information Commissioner's power under s 54W(b) is conditioned by satisfaction 'that the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal'. Likening Tribunal review proceedings to proceedings before an appellate court, where the substantive issues between the parties are ordinarily settled at trial in the court of first instance, is inapt. The general principle drawn from Coulton v Holcombe [1986] HCA 33 at [9] does not assist, even though the reasons underlying the principle as explained in Bird v DP (a pseudonym) [2024] HCA 41 at [39] can readily be understood. Unlike a court, the Tribunal engages in merits review, finding relevant facts and apply the particular statute or law in order to make a fresh decision. It is a creature of statute, exercising jurisdiction conferred upon it for the purposes of merits review. Doing so, it must proceed in a manner which is procedurally fair, albeit not bound by the rules of evidence: s 52, ART Act.
17. Insofar as Mr Patrick's submission touches on the model litigant obligations of the Commonwealth, breach of such obligations is not a constraint on the exercise of the Tribunal's powers.[8] Furthermore, by operation of s 55ZG of the Judiciary Act 1903, compliance with the Legal Services Directions 2017 is a matter for the Attorney-General and non-compliance 'may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth'.
18. The remaining issue is one of discretion under s 134(2) of the ART Act. The discretion is preconditioned by satisfaction the proceeding would involve 'national security information' which, by definition in s 4(1) of the ART Act, has the same meaning as in s 7(1) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), namely:

information: > > (a) that relates to national security; or > > (b) the disclosure of which may affect national security.

19. Under s 8 of the NSI Act, 'national security' means Australia's defence, 'security': s 9; 'international relations': s 10; or 'law enforcement interests': s 11.
20. The essential precondition to enlivenment of the discretion conferred by s 134(2) of the ART Act does not require a determination under s 33 of the FOI Act. The question whether disclosure of the controversial information in documents 1, 4, 7 and 11 would, or could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth is a matter for determination at a hearing of the application.
21. The threshold is one of satisfaction that the proceeding 'would involve' national security information.
22. The relevant history and circumstances of Australia's East Timor operations are traversed in the untested open (redacted) affidavit of Lauren Bain, a First Assistant Secretary in the Southeast Asia Maritime Division of the Department of Foreign Affairs and Trade. In the broad, these are matters of record which involve Australia's political, military and economic relations with foreign counterparts, including in Timor-Leste and Indonesia. This is consistent with and reinforced by the documentary context of the controversial information.
23. On Ms Bain's affidavit, it is likely the controversial information in documents 1, 4, 7 and 11 relates to 'international relations' within the meaning of 'national security' under the NSI Act. The findings made by the original decision maker in respect of s 33 of the FOI Act, albeit contested, are broadly consistent with Ms Bain's affidavit. Even though Ms Bain's evidence has not been tested, it is probable the controversial information in documents 1, 4, 7 and 11 is within the meaning of 'national security information' for the purposes of s 134(2) of the ART Act.
24. That being so, I am satisfied the proceedings would involve national security information, protection of which under the special rules which apply under Part 6 of the ART Act outweighs any practical inconvenience or other prejudice Mr Patrick asserts. For this reason, it is appropriate to exercise the discretion to direct that the Tribunal's power in relation to the proceeding are to be exercised in the ISJA.

[7] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, [51].

[8] Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114, [55].