The Respondent raised no objections to any of Mr Hartley's evidence and elected not to cross examine Mr Hartley. The three Hartley affidavits were accordingly received into evidence.

1. The Applicant's SFIC, the three Hartley affidavits and the four documents which are the subject of the Reviewable Decisions were the subject of non-disclosure/publication orders made by the Tribunal on 1 February 2025, 5 August 2025 and 29 August 2025.
2. The Respondent relied at the hearing on its Statement of Facts, Issues and Contentions dated 7 August 2025 (Respondent's SFIC).
3. The background facts to the Reviewable Decisions are,[7] save for minor amendments suggested by the Respondent,[8] not controversial and are extracted for convenience in the paragraphs which follow.

1. The terms of the FOI request which was the subject of the First Reviewable Decision was:

"1. All invoices/receipts (including travel & accommodation) associated with the former Secretary's (Phil Gaetjens) attendance at a Royal Patronages Dinner in Sydney on April 10, 2022. > > 2. A copy of the former Secretary's (Phil Gaetjens) diary entries/schedule for April 9, 10 and 11, 2022. > > 3. All correspondence and emails between the former secretary (Phil Gaetjens) and the Prime Minister and/or PMO associated with Royal Patronages Dinner in Sydney on April 10, 2022. > > 4. All correspondence between the former secretary (Phil Gaetjens) and Mr Chris Hartley over the period 2019 to end of April 2022."[9]

2. The Respondent identified 7 documents which fell within the FOI request and consulted Mr Hartley in respect of 4 of the 7 documents.[10]
3. Mr Hartley objected to the release of the 4 documents in their entirety based on the conditional exemptions in sections 47F and 47G of the FOI Act.[11]
4. The Respondent decided to grant partial access to the 4 documents, with application of the exemptions under sections 47F and 47G of the FOI Act.[12]
5. Mr Hartley sought internal review of the original access grant decision,[13] and the First Reviewable Decision affirmed the original access grant decision.[14]

1. The terms of the FOI request which was the subject of the Second Reviewable Decision was:

"a copy of correspondence and/or invitation (including emails) that invited the former Secretary, Phil Gaetjens, to attend the Royal Patronages Dinner held at the Royal Sydney Yacht Squadron on April 10, 2022."[15]

2. The Respondent identified one document, an email dated 22 March 2022 and its attachment, which fell within the FOI request and consulted Mr Hartley in respect of that document.[16] The 22 March 2022 email without its attachment was the same as document 1 of the 4 documents which are the subject of the First Reviewable Decision.
3. Mr Hartley objected to the release of the document in its entirety based on the conditional exemptions in sections 47F and 47G of the FOI Act.[17]
4. The Respondent decided to grant partial access to the document, with application of the exemptions under sections 47F of the FOI Act.[18]
5. Mr Hartley sought internal review of the original access grant decision,[19] and the Second Reviewable Decision affirmed the original access grant decision.[20]
6. Mr Hartley sought review by the Information Commissioner of the access grant decision,[21] and the Second Reviewable Decision held that neither of sections 47F and 47G of the FOI Act applied to the document in full.[22]
7. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings that were not finalized before 14 October 2024 are to be continued and finalized by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

Issues for Determination by the Tribunal and the Legislative Framework

1. The Respondent's SFIC states the issues for determination by the Tribunal in the following terms:

(a)" whether the Applicant's right of review is limited to the exemptions in relation to which they were consulted (i.e. ss 47, 47F and 47G of the FOI Act), and if not whether any material in the documents is exempt under s 33(a)(iii) or s 37(1)(c), as claimed by the Applicant." > > (b) "whether material the applicant submits is conditionally exempt under s 47F and s 47G of the FOI Act is exempt under those provisions." and > > (c) "for any material that is conditionally exempt, whether, on balance, disclosure of that material would, at this time, be contrary to the public interest."[23]

2. Mr Hartley has framed the issues for determination by the Tribunal in the following somewhat expanded terms:

" (a) Whether the Relevant Documents are exempt under s 33 of the FOI Act (Section 33 Issue). > > (b) Whether the Relevant Documents are exempt under s 37 of the FOI Act (Section 37 Issue). > > (c) Whether disclosure of each of the Relevant Documents would involve the unreasonable disclosure of personal information about the Applicant, such that each of the documents is conditionally exempt under s 47F of the FOI Act (Section 47F Issue). > > (d) Whether disclosure of each of the Relevant Documents would, or could reasonably be expected to, unreasonably affect the Applicant in respect of his lawful business or professional affairs, such that each of the documents is conditionally exempt under s 47G of the FOI Act (First Section 47G Issue). > > (e) Whether disclosure of each of the relevant documents would disclose information concerning the business, commercial or financial affairs of an organisation or undertaking (Second Section 47G Issue). > > (f) Whether disclosure of each of the Relevant Documents would, or could reasonably be expected to, unreasonably affect an organisation or undertaking in respect of its lawful business, commercial or financial affairs (Third Section 47G Issue). > > (g) In respect of the ss 47F and 47G exemptions, whether disclosure of any of the Relevant Documents would be contrary to the public interest (Public Interest Issue)."

3. Under subsection 61(2)(b) of the FOI Act, Mr Hartley, as an affected third party,[24] bears the onus of establishing that the Tribunal should give a decision which is adverse to the FOI applicant.
4. The provisions of the FOI Act which are engaged for the purpose of determining these applications for review are:
   1. the exemption provision applying to documents the disclosure of which could reasonably be expected to cause damage to the international relations of the Commonwealth (subsection 33(a)(iii));
   2. the exemption provision applying to documents the disclosure of which could reasonably be expected to endanger the physical safety of any person (subsection 37(1)(c));
   3. the public interest conditional exemption involving the unreasonable disclosure of personal information about the applicant (section 47F);
   4. the public interest conditional exemption involving the disclosure of information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking (section 47G); and
   5. the public interest exemption (subsection 11A(5)) and the factors informing the public interest exemption (section 11B).

The relevant parts of these provisions are set out below.

The exemption provision applying to documents the disclosure of which could reasonably be expected to cause damage to the international relations of the Commonwealth is set out in subsection 33(a)(iii) of the FOI Act, which 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)... > > (ii)... or > > (iii) the international relations of the Commonwealth..."

The enforcement of law and protection of public safety exemption is set out in section 37(1)(c) of the FOI Act, which provides:

"37 Documents affecting enforcement of law and protection of public safety > > (1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to: > > (a) ... > > (b) ... > > (c) endanger the life or physical safety of any person."

The relevant public interest conditional exemption concerning personal privacy is set out in section 47F of the FOI Act, which provides:

"47F Public interest conditional exemptions - personal privacy > > General rule > > (1) A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person). > > (2) In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters: > > (a) the extent to which the information is well known; > > (b) whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document; > > (c) the availability of the information from publicly accessible sources; > > (d) any other matters that the agency or Minister considers relevant... > > Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A)."

The relevant public interest conditional exemption concerning disclosure of business or professional affairs is set out in subsection 47G(1)(a) of the FOI Act, which provides:

"47G Public interest conditional exemptions - business > > (1) A document is conditionally exempt if its disclosure under this Act would disclose information concerning a person in respect of his or her business or professional affairs or concerning the business, commercial or financial affairs of an organisation or undertaking, in a case in which the disclosure of the information: > > (a) would, or could reasonably be expected to, unreasonably affect that person adversely in respect of his or her lawful business or professional affairs or that organisation or undertaking in respect of its lawful business, commercial or financial affairs; ... > > Note: Access must generally be given to a conditionally exempt document unless it would be contrary to the public interest (see section 11A)."

The public interest exemption which is engaged when a public interest conditional exemption attaches to a document is set out in subsection 11A(5) of the FOI Act, which provides:

"11A Access to documents on request > > Exemptions and conditional exemptions > > (5) The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest. > > Note 1: Division 3 of Part IV provides for when a document is conditionally exempt. > > Note 2: A conditionally exempt document is an exempt document if access to the document would, on balance, be contrary to the public interest (see section 31B (exempt documents for the purposes of Part IV)). > > Note 3: Section 11B deals with when it is contrary to the public interest to give a person access to the document."

Subsection 11A(5) is to read with section 11B of the FOI Act, which sets out the factors to be taken into account when considering public interest exemption. Section 11B provides:

"11B Public interest exemptions - factors > > Scope > > (1) This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest under subsection 11A(5). > > (2) This section does not limit subsection 11A(5). > > Factors favouring access > > (3) Factors favouring access to the document in the public interest include whether access to the document would do any of the following: > > (a) promote the objects of this Act (including all the matters set out in sections 3 and 3A); > > (b) inform debate on a matter of public importance; > > (c) promote effective oversight of public expenditure; > > (d) allow a person to access his or her own personal information. > > Irrelevant factors > > (4) The following factors must not be taken into account in deciding whether access to the document would, on balance, be contrary to the public interest: > > (a) access to the document could result in embarrassment to the Commonwealth Government, or cause a loss of confidence in the Commonwealth Government; > > (b) access to the document could result in any person misinterpreting or misunderstanding the document; > > (c) the author of the document was (or is) of high seniority in the agency to which the request for access to the document was made; > > (d) access to the document could result in confusion or unnecessary debate. > > Guidelines > > (5) In working out whether access to the document would, on balance, be contrary to the national interest, an agency or Minister must have regard to any guidelines issued by the Information Commissioner for the purposes of this subsection under section 93A."

1. Mr Hartley's primary submission is that the Relevant Documents are exempt under sections 33 and/or 37 of the FOI Act. Bound up with that submission is the contested issue of whether, as the Respondent argues, "the scope of the Tribunal's review is confined to the applicant's contentions made under s 47F and 47G of the FOI Act."[25] The scope of the review is considered further below.
2. Mr Hartley's secondary submission, if the Tribunal does not find that the Relevant Documents are exempt in their entirety under section 33 and/or 37 of the FOI Act, is that the Relevant Documents are conditionally exempt in their entirety under section 47F and/or 47G of the FOI Act.
3. If the Tribunal does not agree with the Mr Hartley's primary or secondary submissions, his alternative submission is that certain redactions under sections 47F and 47G of the FOI Act should be applied to specific information contained in the Relevant Documents because disclosure of that information would involve the unreasonable disclosure of personal and/or business information.[26]
4. Subsection 33(a)(iii) of the FOI Act provides that a document is exempt if its disclosure could reasonably be expected to cause damage to the international relations of the Commonwealth (subsection 33(a)(iii) exemption).
5. Mr Hartley gave evidence in the First Hartley Affidavit as to the following matters relevant to the subsection 33(a)(iii) exemption:
   1. Mr Hartley is a private individual whose sporting and charitable interests and roles have included support for certain members of the Royal Household of Great Britain and Northern Ireland when engaged in visits outside the United Kingdom. His involvement with Royal Household members' visits has extended across Asia, the Pacific, Australia and the Caribbean for more than 20 years, and inevitably has included private dinners.[27]
   2. In organising private dinners of this kind, including in developing guest lists for the dinners, Mr Hartley draws upon a personal network and reputation developed over 50 years. Discretion and the maintenance of privacy for these events is fundamental.[28]
   3. The private dinner in question was held on 10 April 2022 at the Royal Yacht Squadron in Kirribilli (Private Dinner), and was attended by HRH The Princess Royal, as part of a privately organised and funded visit to Australia.[29]
   4. Mr Hartley deposes to the specific steps taken to maintain the privacy of the Private Dinner, including handwritten personal invitations to each guest marked as such, and a private location with privately hired security and photographers.[30] and
   5. Mr Hartley states that "it is my lived experience that private conversations in non-political environments often lead to socially positive outcomes in a range of areas to the benefit of the organisations and even nations involved. They do, however, rely upon discretion and privacy to enable that exchange to take place. Without that confidence, those organisations inevitably get excluded from future events."[31]
6. None of the evidence relevant to the subsection 33(a)(iii) exemption contained in the First Hartley Affidavit was challenged by the Respondent.
7. Mr Hartley contends that the evidence establishes that:
   1. the Relevant Documents concern the organisation of the Private Dinner with HRH The Princess Royal, and what took place at the Private Dinner.
   2. HRH The Princess Royal was representing, at least in part, the Royal Household.
   3. privacy and discretion are critical to the occurrence of an event such as the Private Dinner. and
   4. the holding of such private events often leads to benefits for the country in which the event takes place.[32]
8. Mr Hartley submits that were the Relevant Documents to be released, that would be antithetical to the basis upon which a representative of the Royal Household would agree to take part in such an event at all. Without a practical guarantee of privacy and discretion, the risk is that future private events of a similar kind will simply not take place.[33]
9. The absence of such private events can reasonably be expected to cause damage to the international relations of the Commonwealth because:

"First, representatives of the Royal Household are less likely to engage in this kind of event in future, and therefore Australia is less likely to benefit from the benefits that can come from such events. Second, representatives of other foreign nations are less likely to participate in such events, with the same ultimate adverse outcome for the international relations of the Commonwealth."[34]

10. Subsection 37(1)(c) of the FOI Act provides that a document is exempt if its disclosure could reasonably be expected to endanger the physical safety of any person (subsection 37(1)(c) exemption).
11. Mr Hartley gave evidence in the First Hartley Affidavit as to the following matters relevant to the subsection 37(1)(c) exemption:
    1. Mr Hartley is aware that the FOI Applicant has made numerous FOI requests since October 2022, including six FOI requests to the Respondent, concerning Mr Hartley and events or activities associated with him.[35]
    2. The FOI Applicant has had published, through Michael West Media (MWM), "numerous articles publicly attacking [Mr Hartley] and [his] personal and professional endeavours."[36]
    3. Those publications have resulted in personal attacks by members of the public by telephone and email. The personal attacks have "included physical confrontation outside my home address."[37] An example of correspondence sent by iPhone is referred to which contains vile abuse expressed in obviously threatening language.[38] and
    4. Close associates of Mr Hartley, both of whom attended the Private Dinner have been "the subject of harassment, including at their home address. This has caused considerable distress which in turn, caused them to physically move home."[39]
12. The evidence given in the First Hartley Affidavit was expanded upon in the Third Hartley Affidavit, which stated:
    1. In the period since April 2022 when MWM started publishing articles about Mr Hartley's personal and professional undertakings, he can recall at least a dozen occasions where he received threatening phone calls, text messages or emails. Those communications "involved offensive language with some communications advocating physical violence." Other than the text message referred to in the First Hartley Affidavit (see paragraph [41(c)] above), copies of these documents have not been retained by Mr Hartley because of his concerns about the potential physical and mental health impacts for himself and his family.[40]
    2. Mr Hartley has observed that in the period since April 2022, the "attacks spiked immediately after articles about me and my personal and professional endeavours were published by Michael West Media."[41] Mr Hartley explains that in each of April 2022 and July 2023, when MWM published a number of articles about him, in each instance he received threatening phone calls, text messages and emails immediately after publication.[42]
    3. In the period after publication of the articles in July 2023, there were physical confrontations experienced by Mr Hartley with unknown individuals where threats were made by those persons to Mr Hartley. One of the threats was made by an unknown person in a parked car when Mr Hartley passed by the parked car and the other threat was made by an unknown person from a moving car passing by Mr Hartley.[43] and
    4. Mr Hartley's evidence about the prejudicial impact of these personal attacks is that they "have caused me and my family (my son, daughter and wife) stress and anxiety. They have also caused me and my family to have real concerns about our safety."[44]
13. None of the evidence relevant to the subsection 37(1)(c) exemption contained in the First and Third Hartley Affidavits was challenged by the Respondent.
14. Mr Hartley contends the evidence establishes that the:
    1. FOI Applicant is a journalist whose articles are routinely published by MWM.
    2. FOI Applicant has previously (frequently) used documents concerning Mr Hartley which have been disclosed under the FOI Act to publish articles online through MWM. and
    3. publication of these articles in turn leads to physical or verbal harassment of Mr Hartley and persons associated with Mr Hartley.[45]
15. As past disclosures have followed the pattern established by the evidence, it is contended that disclosure of the Relevant Documents could reasonably be expected to endanger the physical safety of Mr Hartley or those associated with him. It follows that the Relevant Documents attract the exemption under subsection 37(1)(c) of the FOI Act.[46]
16. The Tribunal is persuaded that Mr Hartley's evidence as to the risk of danger to himself, his family or to others associated with him were the Relevant Documents to be disclosed, is cogent evidence. Accordingly, it accepts that this evidence should be accorded considerable weight by the Tribunal, whether in respect of the primary submission as to the subsection 37(1)(c) exemption, or, alternatively, as going to the public interest considerations in respect of the conditional exemptions in sections 47F and 47G of the FOI Act.

1. The parties agree that in considering the scope of the Tribunal's review, the starting point is section 58 of the FOI Act, which provides as follows:

"58 Powers of Tribunal > > (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..."

2. It is also common ground that the Tribunal is to have regard to the Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (FOI Guidelines).[47]
3. Mr Hartley was consulted by the Respondent under section 27 Consultation - business documents and section 27A Consultation - documents affecting personal privacy, and was invited to make a submission that the Relevant Documents were conditionally exempt under sections 47, 47F or 47G of the FOI Act and that the release of his business and personal information contained in the Relevant Documents would be contrary to the public interest.[48]
4. Mr Hartley submits that the Tribunal has the power, under subsection 58(1) of the FOI Act to decide any matter in relation to the FOI requests which were the subject of the Reviewable Decisions that could have been or could be decided by an agency or Minister. Specifically, Mr Hartley says that the Respondent, or Commissioner as the case may be, could and should have decided that the Relevant Documents were exempt under section 33 or 37 of the FOI Act.[49]
5. In addition, Mr Hartley says that the effect of subsection 58(2) of the FOI Act is that if Mr Hartley can establish in this proceeding that the Relevant Documents (or any of them) are exempt under section 33 or 37 of the FOI Act, the Tribunal "does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted."[50]
6. The parties both referenced in argument the Full Court Federal Court's decision in Mitsubishi Motors Australia Ltd v Department of Transport (1986) 12 FCR 156 (Mitsubishi). Mitsubishi was relied upon by the Respondent for the proposition that Mr Hartley's right of review in the Tribunal is limited to the exemptions in relation to which he was consulted under sections 27 and 27A of the FOI Act.
7. At the time Mitsubishi was decided, the FOI Act provisions dealing with external review by the Tribunal included, in addition to section 58, a section 59 (subsequently repealed in the 2010 amendments to the FOI Act)[51] which relevantly read as follows:

59(1) Where notice of a decision that a document, so far as it contains certain information, is not an exempt document under section 43 has been given, in accordance with sub-section 27(2), to a person who made submissions in accordance with that section, that person may apply to the Tribunal for a review of that decision."

The Tribunal notes that section 27 was in similar terms to its present wording and section 43 (since repealed) was in similar terms to the present sections 47 and 47G of the FOI Act. There is no equivalent provision to the repealed section 59 in the present FOI Act, with section 57A now dealing with decisions which can be reviewed by the Tribunal.

1. The relevant statements of principle in _Mitsubish_i for present purposes are as follows:

"It will be noticed that both s 27(2) and s 59(1) speak of a decision that a document is not an exempt document under s 43. Neither provision mentions a decision that a document is exempt from disclosure under the Act on any other ground. Nor do s 27(2) and s 59(1) refer to a decision to grant access to a document. The crucial provision for present purposes is s 59(1) and it is accepted by the applicant, properly in our view that s 59(1) is the sole source of its right to seek review in the present case. > > In our opinion, s 59(1) should be construed to mean what it says, that is to say, to provide a right of review only in respect of a decision that a document is not exempt under s 43...."[52] > > "[T]he applicant sought to argue that a decision made under s 27(2) that a document is not exempt under s 43 is, in substance, a decision to grant access to a document. The applicant then argued that such a decision, that is, one to grant access, was picked up by s 58(1) so as to confer upon the Tribunal jurisdiction to deal with the whole question of the grant of access, and, as implicit in such a decision, the question whether any grounds of exemption, whether arising under s 43 or otherwise, were available. > > The argument, in our opinion, breaks down at the threshold. As a matter of both form and substance, the language of 59(1) makes it clear, we think, that the draftsman intended that there be given to the Tribunal jurisdiction to review only one kind of decision- a decision that a document is not exempt under s 43..."[53] > > "A decision to refuse access is reviewable, upon the application of the applicant for access, by the Tribunal; but the general policy of the Act is against providing under the Act itself any procedure for administrative review of a decision to grant access. The sole exception to this general policy is in relation to the ground of exemption provided by s 43..."[54] > > "In our opinion, a general provision such as s 58(1) should not be interpreted so as to expand the Tribunal's jurisdiction in the manner suggested. We would not construe s 58(1) as conferring upon the Tribunal any additional jurisdiction. Rather it should be seen as giving to the Tribunal the power to deal with all questions within its jurisdiction; and, to this end, the Tribunal is not to be constrained in the proper exercise of its functions by the way in which the decision maker has seen fit to exercise his powers. If, for instance, the decision-maker fails to consider relevant issues, the Tribunal is not limited to reviewing only those issues considered below..."[55]

2. The current application of Mitsubishi in the wake of the 2010 amendments to the FOI Act, which included the repeal of section 59, was disputed by the parties.
3. Mr Hartley contends that with the repeal of section 59 in 2010, the statutory regime is now materially different to the one which was considered by the Court in Mitsubishi, and "there is no longer any statutory language that limits the Tribunal's power to determine that a document is exempt under any provision of the Act."[56]
4. The Respondent's position is that Mitsubishi still applies, notwithstanding that section 59, which is central to the Court's reasoning, has not been replaced since 2010 by an equivalent section in the FOI Act (the closest section being section 57A of the FOI Act).
5. The Respondent supports its position with reference to the following matters:
   1. Mr Hartley is an "affected third party" by operation of section 53C of the FOI Act and his position when involved in the consultation process under sections 27 and 27A of the FOI Act is explained in the FOI Guidelines and in the authorities.
   2. With respect to the FOI Guidelines, which are not a legislative instrument but to which the parties are to have regard to under subsection 93A(2) of the FOI Act, Guidelines [6.165] (in respect of section 27A) and [6.209] (in respect of section 27) are consistent with the Mitsubishi decision still applying.
   3. With respect to the authorities, the decisions in 'E' and National Offshore Petroleum Safety and Environmental Management Authority ('E'),[57] Jetstar Airways Pty Ltd and Civil Aviation Safety Authority (Freedom of Information) (Jetstar),[58] Denehy and Superannuation Complaints Tribunal (Denehy)[59], Bennett v Chief Executive Officer of the Australian Customs Service (Bennett) [60] and Illawarra Retirement Trust v Secretary, Department of Health and Ageing and Anor (Illawarra Retirement Trust) [61], are said to be consistent with the Respondent's view of the Mitsubishi decision.
   4. The Explanatory Memorandum to the Freedom of Information Amendment (Reform) Bill 2010 (EM) is said to make good the proposition that no relevant change to the policy settings under or to the effect of the provisions in the FOI Act are intended to be made concerning the consultation process by the 2010 amendments to the FOI Act.
6. The Respondent points to the discussion in the EM of Part VI - Internal review provisions[62] and Part VII - Review by Information Commissioner[63] concerning:
   1. the proposed section 54M, which was to preserve the 'access grant decisions' which are amenable to review by the Commissioner. and
   2. proposed subsection 54S(2), which was to preserve the right of an affected third party to apply for review by the Commissioner within 30 days of receiving notice under sections 27 and/or 27A that an agency or Minister proposes to give access to a document containing information relating to the third party.

The Respondent argues from these points that even though section 59 was repealed, Parliament intended no substantive change to third party review rights in respect of access grant decisions.

1. The Respondent further notes that the definition of "access grant decision" contained in section 53B of the FOI Act is tightly constrained by the table in the section as it relates to documents which are the subject of a request for access under section 27 or 27A of the FOI Act. It further argues that the effect of the Mitsubishi decision, authorities such as 'E' and the FOI Guidelines, is that an overreach of the Tribunal's jurisdiction would occur if the Tribunal failed to limit itself to dealing with the conditional exemptions in sections 47F and 47G of the FOI Act (being the sections upon which Mr Hartley was consulted as "the person concerned" who might reasonably wish to make the "exemption contention" available under section 47F and/or 47G).
2. The Respondent submits that Mitsubishi is good law, and binding on the Tribunal, on the point that the Tribunal's jurisdiction in the present context is not expanded by the operation of subsection 58(1) of FOI Act, as Mr Hartley has advocated for.
3. In response to the Respondent's key contention that Mitsubishi continues to apply, Mr Hartley submits:
   1. _Mitsubish_i is a decision where the construction of section 58 of the FOI Act has been construed by reference to the now repealed section 59 and is no longer binding on the Tribunal in the absence of an equivalent provision to section 59 in the present FOI Act.
   2. The decision in 'E' is not binding on the Tribunal and was wrongly decided because it pays insufficient regard to the fact that the language of the former section 59 was critical to the reasoning in Mitsubishi, and it does not deal with the impact of the repeal of section 59 and the other 2010 amendments to the FOI Act.[64]
   3. The decision in Jetstar identifies that consultation rights of a third party are limited but does not assist in determining the extent of the Tribunal's powers in the present proceedings.[65]
   4. The decisions in Bennett (2004) and Illawarra Retirement Trust (2005) do not assist the Tribunal because they pre-date the 2010 amendments to the FOI Act.
   5. The passage at paragraph [19] in Denehy is not part of the ratio decidendi of that case and was not the subject of detailed consideration by the Tribunal. and
   6. Further, to the extent that the FOI Guidelines maintain that the policy of the FOI Act remained unchanged after the 2010 amendments, the Tribunal is to have regard to the extrinsic FOI Guidelines but is ultimately to construe the language of the FOI Act itself.
4. The Respondent's position is that it has never supported either of sections 37 or 33 of the FOI Act as grounds for exemption of the Relevant Documents. Mr Hartley contends that had the Respondent fully appreciated the relevance, on the particular facts of this case, of the subsection 37(1)(c) exemption, it should have applied that exemption to the Relevant Documents in response to the FOI Applicant's FOI requests.
5. Arguing from first principles, he says that if the true position was that the Relevant Documents were in fact always exempt documents under either subsection 33(a)(iii) or 37(1)(c) of the FOI Act, that exempt status of the Relevant Documents cannot be negated by the fact that the Respondent went down the sections 27 and 27A consultation path. If the Relevant Documents were properly to be characterised as exempt as a matter of law, they always remain so.
6. As stated earlier, Mr Hartley's evidence shows that disclosure of the Relevant Documents could reasonably be expected to endanger the physical safety of Mr Hartley and/or his family or other persons. That is because previous disclosures of documents concerning Mr Hartley to the FOI Applicant had led to publication of articles by MWM with resultant threats, harassment and worse by persons "trolling" Mr Hartley and/or persons associated with him.
7. The use of "could" in the chapeau to subsections 37(1) and 33(a) imports a less stringent requirement than "would". There needs to be a reasonable apprehension of danger on the facts. Reasonable apprehension does not mean that the risk must be substantial but there must be evidence of more than a mere risk or chance of prejudice.[66]
8. As the Tribunal in Chemical Trustee Limited and Ors and Commissioner of Taxation and CEO AUSTRAC (Joined Party)[67], explained:

"Section 37 of the FOI Act refers to disclosure of a document where disclosure "would or could reasonably be expected" to carry the consequences set out in the section. The phrase "would or could reasonably be expected" means there must be at least a real, significant or material possibility of prejudice and a mere "suspicion" or "remote chance" would not satisfy the test."[68]

9. Importantly, if a document falls within the section 33 or 37 exemptions, there is no basis for a public interest criterion extending beyond the terms of the section. Further, the fact that a document falling within one of the exemptions may have found its way into the public domain does not take it outside the operation of the section.[69]
10. Having carefully considered the legislation, the authorities and the parties' submissions as to the scope of the Tribunal's review, I am of the view that the Tribunal does not have jurisdiction in a consultation case such as the present proceeding to go beyond the sections of the FOI Act ( sections 47F and 47G) which were the subject of the consultation process resulting in Mr Hartley being subject to the Reviewable Decisions.
11. The Tribunal accepts that the utility of Mitsubishi has been reduced by the fact that section 59 of the FOI Act was subsequently repealed. However, none of the EM, the 2010 amendments to the FOI Act, the FOI Guidelines or the decisions post-dating the 2010 amendments support the conclusion that Parliament intended there to be a change to the policy settings around consultations undertaken under 27 and/or 27A of the FOI Act. Further, the Tribunal is of the view that Mitsubishi is correct as to the interpretation of subsection 58(1) of the FOI Act, it being a section enabling the Tribunal to deal with all questions within its jurisdiction but not otherwise being a provision available to the Tribunal as a means of expanding its jurisdiction.
12. In summary, tempting as it was (especially considering Mr Hartley's evidence relevant to the subsection 37(1)(c) exemption) for the Tribunal to accept the persuasive arguments of Mr Hartley's counsel urging the Tribunal to determine that the Relevant Documents were exempt under either or both of sections 33 and 37, the Tribunal's considered view is that it does not have the power to determine the application for review on that basis.

Public Interest conditional exemptions- sections 47F and 47G of the FOI Act

1. Mr Hartley submits that if the Tribunal is not able to determine the application on the basis that the Relevant Documents are exempt in their entirety under section 33 and/or section 37 of the FOI Act, the Tribunal should find that the Relevant Documents, in their entirety, fall within the public interest conditional exemptions in section 47F (personal privacy) and/or section 47G (business).
2. In respect of the Section 47F Issue, Mr Hartley contends that the disclosure of the Relevant Documents would involve the unreasonable disclosure of personal information about him for the following reasons:
   1. The Private Dinner was a private event at a private venue, personally hosted, conducted and funded by Mr Hartley;[70]
   2. Mr Gaetjens was personally invited by Mr Hartley to the Private Dinner. That invitation was extended to Mr Gaetjens in his personal capacity and not in his official capacity as the then (and likely outgoing) Secretary of the Department of the Prime Minister and Cabinet;[71]
   3. The fact that Mr Gaetjens subsequently, and unexpectedly from Mr Hartley's perspective, sought reimbursement by the Respondent of his expenses associated with attending the Private Dinner is not relevant to a finding that it was a private event;[72] and
   4. Mr Hartley's involvement in organising the Private Dinner and his personal relationships with individuals (including Mr Gaetjens) referred to in the Relevant Documents is personal information not otherwise publicly available.[73]

Further, Mr Hartley submits that any disclosure of the Relevant Documents would be contrary to the public interest.

1. In respect of section 47G of the FOI Act, Mr Hartley's contentions respond to the First, Second and Third 47G Issues.
2. In respect of the First 47G Issue, Mr Hartley contends that:
   1. Disclosure of the information contained in the Relevant Documents would prejudice Mr Hartley's ability to host similar events in future because the disclosure of private correspondence related to the Private Dinner would harm his reputation amongst his contacts and prospective guests to maintain the privacy required to enable these events.[74]
   2. The information in the Relevant Documents, including as to Mr Hartley's organisation of the Private Dinner, and his personal relationships with attendees, is not in the public domain.[75] and
   3. If the Relevant Documents were to be made public, the information as to the security and privacy arrangements for the Private Dinner might potentially be used by third parties to disrupt such events in future.[76]
3. In respect of the Second 47G Issue, Mr Hartley contends that some key participants and beneficiaries of the Private Dinner are several organisations of which HRH The Princess Royal is Patron (Patronages). The Patronages enjoy business and financial benefits from the holding of such events, "including but not limited to recognition of past donors, solicitation of current donors, recognition of loyal and dutiful staff, and acknowledgement of client, patient and victim progress."[77] Section 47G applies because disclosure of the Relevant Documents would disclose information concerning the business, commercial or financial affairs of the Patronages.
4. In respect of the Third 47G Issue, Mr Hartley contends that the evidence is that organisations like the Patronages benefit from their ability to participate in events like the Private Dinner. Disclosure of the Relevant Documents could reasonably be expected to unreasonably affect the lawful business, commercial or financial affairs of the Patronages. A finding of conditional exemption of the Relevant Documents under section 47G would prevent this from happening.[78]
5. In respect of the Public Interest Issue, Mr Hartley contends:
   1. The evidence advanced in support of the subsection 37(1)(c) exemption (set out in paragraphs [41] and [42] above) applies in the consideration of the public interest, in that disclosure of the Relevant Documents is likely to encourage further attacks upon Mr Hartley and persons associated with him. The granting of access to documents which give rise to these concerns, would be disclosure which is contrary to the public interest.[79]
   2. Disclosure of the Relevant Documents would not promote effective oversight of public expenditure in circumstances where the Respondent made the decision to reimburse Mr Gaetjens' expenses for attending the Private Dinner when that fell outside Mr Gaetjens official role.[80] and
   3. As Mr Gaetjens was not invited to the Private Dinner in his official capacity, disclosure of the Relevant Documents would not promote discussion of government activities.[81]
6. In addition to the public interest matters outlined above, the First Hartley Affidavit deals with additional public interest considerations[82] around possible damage to Australia's reputation internationally, including the potential for negative impacts on future similar private visits.[83] Disclosure of the Relevant Documents may also negatively impact the specific initiatives taken following the Private Dinner, which again is said to be contrary to the public interest.[84]
7. The Tribunal notes that the Reviewable Decisions turn on a finding that Mr Gaetjens was attending the Private Dinner in an official capacity. The Tribunal does not agree with that finding and, on the evidence before it, finds that Mr Gaetjens was invited to, and attended, the Private Dinner in his personal capacity. The fact that Mr Gaetjens chose after the event to claim expenses in relation to the Private Dinner, and the Respondent chose to pay them, does not in my view alter that characterisation.
8. Subsection 47F(2) sets out factors which the Tribunal must have regard to when determining whether disclosure would involve the unreasonable disclosure of personal information (see paragraph [27] above).
9. The FOI Guidelines provide additional guidance as follows (footnoted citations omitted):

"6.137 Key factors for determining whether disclosure is unreasonable include: > > (a) the author of the document is identifiable. > > (b) the document contains third party personal information. > > (c) release of the document would cause stress to the third party. > > (d) no public purpose would be achieved through release. > > 6.138 As discussed in the IC review decision of 'FG' and National Archives of Australia [2015] AICmr 26, other factors considered to be relevant include: > > * the nature, age and current relevance of the information > > * any detriment that disclosure may cause to the person to whom the information relates > > * any opposition to disclosure expressed or likely to be held by that person ... > > * the fact that the FOI Act does not control or restrict any subsequent use or dissemination of information released under the FOI Act... > > 6.140... On the other hand, disclosure may be unreasonable if the person provided the information to the Australian Government on the understanding that it would not be made publicly available, and there are no other statutory disclosure frameworks that would require release of the information."

10. The Respondent makes the point that personal information about the Relevant Documents is available from publicly accessible sources, and individuals including Mr Hartley are known to be associated with the Private Dinner. The Respondent references several sources of publicly available information,[85] including via internet archiving websites which captured the Australian Public Service Commission (APSC) disclosure log.[86]
11. The Tribunal in Jones and Commissioner of Taxation[87], said in respect of information already accessible from other sources:

"When considering whether it is reasonable or not to disclose personal information, I regard the fact that the information may be available from other sources as merely a matter to be taken into account. For example, that the will of the Applicant's deceased father was admitted to probate and hence might be the subject of a search at the Supreme Court registry does not of itself make the release of that document reasonable in these proceedings."[88]

12. Mr Hartley's section 47F argument in essence is that each of the Relevant Documents consists of "personal information" about Mr Hartley consisting of Mr Hartley's own private communications, and, in the circumstances disclosed by the evidence, disclosure of the Relevant Documents would be unreasonable and contrary to the public interest.
13. In considering the subsection 47F(2) factors as to disclosure being unreasonable, Mr Hartley submits that:
    1. the information is generally not well known (s. 47F(2)(a)).
    2. Mr Hartley is known to be associated with the matters concerning the Private Dinner which are dealt with in the Relevant Documents (s. 47F(2)(b)).
    3. Whilst there is some evidence that the information is or has been available from publicly accessible sources (see paragraph [83] above), the disclosures were either unauthorised disclosures in breach of the FOI Act (for example, the release of certain of the Relevant Documents on the APSC website) or were disclosures neither widely nor easily accessible. Mr Hartley gave evidence of the active steps taken by him (through his solicitors) to rectify APSC's apparent breaches of the FOI Act resulting in the documents being removed from the APSC's FOI log (s.47F(2)(c)).[89]
14. Looking to the FOI Guidelines (extracted in paragraph [82] above), Mr Hartley contends that the factors as to disclosure being unreasonable set out in [6.137] are met, in that disclosure of the Relevant Documents would identify him as the author of the documents, those documents contain personal information, release of the Relevant Documents will cause him stress and it is difficult now to identify that any public purpose would be achieved through the release of the Relevant Documents.
15. As to the FOI Guidelines [6.138] factors as to disclosure being unreasonable, the "nature, age and current relevance of the information", the detriment that disclosure may cause to Mr Hartley, and his vigorous opposition to the disclosure, all weigh in favour of a finding that disclosure in the circumstances would be unreasonable. The Tribunal finds that Mr Hartley has established to the Tribunal's satisfaction that disclosure of the Relevant Documents would be unreasonable for the purposes of subsection 47F(2)(b) of the FOI Act.
16. Further, and for the reasons discussed in paragraphs [41] - [46] above, the uncontroverted evidence of Mr Hartley strongly supports a finding that disclosure of the Relevant Documents, in the circumstances, would be contrary to the public interest. The Tribunal finds that disclosure of the Relevant Documents would be contrary to the public interest. Accordingly, the Tribunal is satisfied that the Relevant Documents are conditionally exempt in their entirety under section 47F of the FOI Act.
17. For completeness, the Tribunal needs to rule on the Respondent's submission that Mr Hartley needed to identify precisely what the personal information was in each of the Relevant Documents, on the basis that the whole document could not be comprised of personal information. The Respondent also referenced section 22 of the FOI Act, which allows for the agency providing access to a document to provide a redacted version of the document which excludes exempt or irrelevant material.
18. Mr Hartley's answer to this submission is that it is an artificial exercise to seek to "atomise" the Relevant Documents on the basis that some sentences are personal information and might be excluded and other sentences were not personal information and ought to be disclosed.
19. Having examined the Relevant Documents, the Tribunal agrees with Mr Hartley that is simply not practical to attempt to break down the Relevant Documents in circumstances where each of the documents, considered in their entirety, disclosed by the very manner of their composition personal information about Mr Hartley. It follows that the Tribunal rejects an approach involving the disclosure in part of the Relevant Documents and determines that the Relevant Documents are conditionally exempt in their entirety.
20. The application of the exemption under subsection 47G(1)(a) has two limbs of which the Tribunal must be satisfied, which are that:

(a) the Relevant Documents contain information concerning a person in respect of his or her business or professional affairs, or, the business, commercial or financial affairs of an organisation or undertaking; and

(b) disclosure would or could reasonably be expected to, unreasonably affect Mr Hartley adversely in those affairs (lawfully undertaken).

1. Mr Hartley's section 47G argument in essence is that disclosure of the Relevant Documents would disclose information in respect of his professional affairs, including disclosure of private arrangements made with foreign dignitaries including members of the Royal Family, and such disclosure could reasonably be expected to unreasonably affect Mr Hartley's ability to organise events like the Private Dinner (which are heavily dependent on the exercise of considerable discretion). The destruction of privacy which would result from the disclosure would adversely affect Mr Hartley's ability to organise similar events in the future.
2. The evidence in relation to Mr Hartley's professional affairs is set out in the First Hartley Affidavit,[90] as is his evidence as to how those professional affairs would be adversely affected by disclosure of the Relevant Documents[91] and why that disclosure would be contrary to the public interest.[92]
3. With respect to the public interest, Mr Hartley says that none of the factors favouring access in the public interest set out in subsection 11B(2) of the FOI Act, or in the FOI Guidelines at [6.231], are engaged in the present application. By way of contrast, Mr Hartley refers to the FOI Guidelines at [6.233(k)] which sub-paragraph provides (as part of a non-exhaustive list of factors against access in the public interest) that a factor weighing against access in the public interest exists where disclosure "could reasonably be expected to harm the interests of an individual or group of individuals." The Tribunal accepts that, based on Mr Hartley's evidence, this factor against allowing access in the public interest is relevant and applicable.
4. The Tribunal is satisfied, on the evidence and submissions before it, that the Relevant Documents are (in addition to being conditionally exempt in their entirety under section 47F of the FOI Act), also conditionally exempt in their entirety under section 47G of the FOI Act.

1. It follows from these Reasons that the Reviewable Decisions are set aside by the Tribunal and a decision substituted that the Relevant Documents are conditionally exempt in their entirety under sections 47F and 47G of the FOI Act.

[1] T2 in 2024/3834 T-documents. Case number 2024/3834.

[2] T2 in 2024/7805 T-documents. Decision made under section 55K of the FOI Act. Case number 2024/7805.

[3] Joint Hearing Bundle (JHB), pages 2 - 11.

[8] Respondent's SFIC, [3.1], [3.2].

[9] Extracted in Applicant's SFIC, [4].

[12] T1(b)(i) in 2024/3834 T-documents.

[13] T1(b)(iv) in 2024/3834 T-documents.

[15] Extracted in Applicant's SFIC, [11].

[24] By operation of section 53C of the FOI Act.

[27] First Hartley Affidavit, [5] - [6].

[28] First Hartley Affidavit, [7] - [8].

[29] First Hartley Affidavit, [11] - [13].

[42] Third Hartley Affidavit, [9] - [10].

[43] Third Hartley Affidavit, [11] - [13].

[48] T5 in 2024/3834 T-documents; T5 in 2024/7805 T-documents.

[51] With effect from 1 November 2010, the FOI Act was amended by the Freedom of Information Amendment (Reform) Act 2010 (Cth).

[52] (1986) 12 FCR 156, 160 - 161.

[53] (1986) 12 FCR 156, 161.

[54] (1986) 12 FCR 156, 161.

[55] (1986) 12 FCR 156, 162.

[57] [2012] AICmr 3, [16].

[58] [2018] AATA 2097, [9] - [10].

[59] (2012) AATA 608, [19].

[60] [2004] FCAFC 237, [72].

[61] [2005] FCA 170; (2005) 143 FCR 461, [20].

[66] FOI Guidelines, [5.17], [5.18], [5.121], [5.122].

[67] [2013] AATA 623.

[68] [2013] AATA 623, [79].

[69] Commonwealth of Australia v Hittich (1994) FCR 152, 154.

[78] Applicant's SFIC, [43] - [45].

[82] First Hartley Affidavit, [28] - [33].

[83] First Hartley Affidavit, [30] - [32].

[86] Respondent's SFIC, [26.4.2] and footnote 19.

[87] [2008] AATA 834.

[88] [2008] AATA 834, [11].

[89] The correspondence between Jones Day and the APSC and others can be found at Exhibits "A-1" to "A-7".

[90] First Hartley Affidavit, [5] - [7], [15(d) - (e)].

[91] First Hartley Affidavit, [8], [14].

[92] First Hartley Affidavit, [30] - [32].