Archives Act 1983 s.3, s.7(2), s.31, s.33, s.40, s.42

Administrative Appeals Tribunal Act 1975 s.37, s.35(2)

Australian Security Intelligence Organisation Act 1979 s.92

Australian Security Intelligence Organisation Act 1956

Commonwealth Constitution s.61, s.51(vi), s.51(xxxix)

Freedom of Information Act 1982 s.33A(2)

Re Pochi and the Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482

Russell v Duke of Norfolk (1949) 1 All ER 109

Attorney-General's Department v Cockroft (1986) 12 ALD 468

Re Slater and Cox (Director-General, Australian Archives) [1988] AATA 110; (1985) 15 ALD 20

Re Maher and Attorney-General's Department (1985) 7 ALD 731

Re Robinson and Department of Foreign Affairs (1986) 11 ALN N48

Re Throssell and Australian Archives (1986) 10 ALD 403

Re Throssell and Department of Foreign Affairs [1987] AATA 545; (1987) 14 ALD 296

(a) With respect to the following records of the respondent, the decisions under review that they are by reason of s.33 of the Archives Act 1983 ("the Act") exempt records, subject to particular deletions made by the respondent, is affirmed.

Item 407 Folios 2, 4-5, 6, 9, 10, 23, 33, 34, 35-38, 41, 45-48,

49, 62, 72, 73, 79, 82, 83, 85, 87, 88, 91.

(b) With respect of Item 312 Folio 9 and Item 407 folios 84 and

86, the decisions under review are:

(i) varied to the extent that the parts of those records set

forth in the Confidential Schedule to this Decision and Reasons

("the Confidential Schedule") may be disclosed pursuant to s.38

of the Act; and

(ii) subject to those variations, are affirmed with respect to

the balance of those folios previously not disclosed.

(c) The Confidential Schedule may be disclosed to only the

respondent, the Australian Security and Intelligence

Organisation, and their legal advisers upon delivery of this

Decision, and to the applicant and the public 14 days thereafter.

This is an application to review what effectively amounts to two distinct but related decisions made by the respondent, the first in response to an application under s.40 of the Archives Act 1983 ("the Act") for access to certain records relating to Dr J F Cairns, which application was refused on the ground that the particular records to which access was sought constituted, either in whole or part, "exempt records" for the purposes of s.33 of the Act. The second decision in respect of which review is sought is a determination by the respondent that, so far as it could ascertain, there were no other records that had been within the holdings of the Australian Security and Intelligence Organisation ("ASIO") which related to Dr Cairns. This raises an issue of the adequacy of the record indexing system maintained by ASIO by which access to documents held by the Archives is regulated.

2. More specifically, the process by which those decisions came to be made and submitted for review by this Tribunal is as follows. On 27 September 1989 the applicant, Mr McKnight, made an application under s.40 of the Act for access to certain documents relating to Dr Cairns by filling out a request form. This was treated as access to four particular folios of records which originally were within the collection maintained by ASIO and which now are held by the Archives. On that day he was orally advised that access would not be granted. On 9 October 1989 the respondent received an application for review of the decision not to grant access. This was treated as an application for an internal reconsideration, under s.42 of the Act. At this time, the issue was raised whether there were any other records relating to Dr Cairns which might be the subject of the request for access.

3. By letter dated 14 November 1989 Dr H Stokes, the Director (Access) of the Archives advised Mr McKnight of the decision to wholly exempt folios 3, 4, 8 and 9 of Item 312 of the ASIO records, giving reasons in support of that decision. The letter also addressed the question of whether the nine folios comprising item 312 were the only "open period records" held by ASIO relevant to Dr Cairns. The letter continued:

"In relation to the existence of additional open period

material we passed a copy of your letter of 29 September 1989 to

ASIO as you requested. ASIO undertook a further search but they

were unable to locate any open period material created up to the

end of 1957 other than that already identified."

4. On 12 January 1990 there was an application by Mr McKnight's solicitors for review by this Tribunal of that decision, including the determination that there were no other open period records held by ASIO relevant to Dr Cairns. Subsequently, on 12 March 1990, in the light of the knowledge that not only were ASIO records indexed by reference to individuals but also by reference to subjects, Mr McKnight, through his solicitors, nominated eleven subject matters as warranting further searches for possible material relevant to Dr Cairns. In the same vein, he also gave a reference to the records of a particular individual.

5. Searches relating to these further subjects revealed that there were potentially a large number of documents that might be in dispute. In particular, as indicated in the summary statement of Dr Stokes to this Tribunal dated 30 September 1990, a number of folios in Item 407 relating to Dr Cairns were discovered and exemption was claimed in respect of various folios among them. After internal reconsideration, the claim for exempt status in respect of certain of the folios in Item 407 was upheld (see letter of Dr Stokes dated 12 September 1990). The applicant still maintained that there were other records that fell within the ambit of his application to this Tribunal. A Directions Hearing was subsequently held by the Tribunal, and after examination by Deputy President Todd, the additional documents to which access was sought were ruled not to be the subject of the present application either on the grounds of relevance or because of concessions made by the applicant that he did not press access to information of a technical nature.

6. At the hearing before me, which took place over two days, Dr G Flick of counsel appeared for the applicant and Mr A Robertson of counsel for the respondent. The Tribunal received into evidence and has taken into account the documents furnished to it pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, ("the AAT Act") as well as a number of other affidavits and documents which are set forth in Schedule 1 to these reasons and to which reference will be made where necessary. Oral evidence on behalf of the respondent was given, in both open and closed sessions, by a senior officer of ASIO whom I shall refer to as "witness X" to avoid infringing s.92 of the Australian Security Intelligence Organisation Act 1979 ("the ASIO Act").

7. Necessarily, since these proceedings relate essentially to matters of national security, the Tribunal is subject to somewhat special and restrictive constraints, not only in terms of the records themselves which are claimed to be exempt but also in respect of the extent to which some of the supplementary documentary evidence and certain oral evidence could be disclosed. In the course of proceedings, I made specific orders pursuant to s.35(2)(b) of the AAT Act that certain evidence or parts of evidence not be disclosed other than to certain persons being myself and my then associate, certain officers of the two affected agencies (the respondent and ASIO) and nominated legal representatives of the respondent. I further directed, pursuant to s.35(2)(a) of the AAT Act, that the evidence of witness X be given in private (ie. in closed session) with all persons other than those just mentioned excluded. Dr Flick, on behalf of the applicant, objected to certain aspects of these orders, and in particular, whilst he did not contend that the applicant should be present when evidence was given in closed session, he objected to his exclusion, as the applicant's legal representative, from each of the two sessions in which sensitive evidence was given in confidence by a senior officer of ASIO. He submitted that his exclusion would deprive the applicant of a reasonable opportunity to respond to the evidence led in closed session. As Brennan J (President) said in re Pochi and the Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482, at 508:

"Serious though the exclusion of the public is, the exclusion

of a party from a hearing which affects his interests is a much

graver step. To exclude a party from such a hearing, even if his

legal advisers are permitted to remain, is to deny him a full

opportunity to cross-examine upon, to comment on or to controvert

the case against him - a denial which, in the absence of

statutory authority, would constitute an indefensible denial of

fair treatment by the Tribunal."

8. As I indicated at the time, I made the relevant ruling in my discretion, having regard to the rather peculiar and unique circumstances that any documents such as correspondence produced to substantiate the claims to exemption and any supporting oral evidence from witness X could possibly have national security implications of the very kind in issue under s.33 of the Archives Act. This required, as I saw it, some exceptional restriction and modification to the normal rules of natural justice. In this regard, though s.35(3) of the AAT Act recognises and enshrines the policy of the common law that proceedings should be held in public, there were overbearing considerations, in my opinion, in the present case to justify a departure from the normal rule. Sub-section (3) of s.35, to the extent that it recognises that exceptional circumstances justifying restriction may exist, provides a statutory warrant so to do in this instance when read in the context of s.33 of the Archives Act. As Tucker L.J. said in Russell v Duke of Norfolk (1949) 1 All ER 109 at 118:

"The requirements of natural justice must depend on the

circumstances of the case, the nature of the inquiry, the rules

under which the tribunal is acting, the subject-matter that is

being dealt with, and so forth."

9. Dr Flick's particular concern was that evidence could be led in those circumstances the nature of which might not be indicated, in general terms, in the open affidavits filed with the Tribunal. He gave as an instance the possibility that correspondence admitted in evidence in closed session might travel beyond the limits of the matters addressed in paragraph 16 of the affidavit of 29 April 1991 (exhibit 4). As it happened, I was able to indicate to him upon resumption in open session after the first closed session the broad nature of the further evidence submitted to me under cover of the order made under s.35(2) and, further, assure him that materials so admitted did not trespass into areas beyond the subject matter described in the open affidavits.

10. The legislative scheme by which this matter calls to be determined is set forth in detail in Schedule 2 of these reasons.

11. Shortly summarised, relevantly to this application, the scheme works in this way. The documents in dispute fall within the description of "Commonwealth records" for the purposes of s.3(1), either as being "originally" the property of the Commonwealth or alternatively those of a Commonwealth institution (ie. ASIO). Those records in turn would constitute "archival resources of the Commonwealth" unless they are excluded by reason of being "exempt material" for the purposes of s.3(2)(j).

12. Since the records in question have been held for a period of at least 30 years, they fall, by reason of s.3(7) within the "open access period". By virtue of s.7(2) the Director-General of the Australian Archives is authorised to exercise any powers conferred on the Archives and perform any duties imposed upon that body. So far as this application is concerned, a decision given by the Archives is deemed to have been given by the Director-General (see s.50).

13. Section 31(1) requires all Commonwealth records in the open access period, other than exempt records, to be made available for public access. Such access is achieved by virtue of arrangements made between the Archives and the relevant institution (s.31(2)).

14. The critical provision as far as these proceedings are concerned is s.33 which sets forth the criteria by which a Commonwealth record is to be determined an exempt record. That depends on whether it contains information or matter on the various kinds specified in subsection (1). Relevantly to the present application, exemption is claimed in respect of the records in dispute under various nominated paragraphs of that provision. The specific claims for exemption in respect of each document are particularised in the schedule to the open affidavit of witness X dated 29 April 1991 (exhibit 4). (The description "open" is used in respect of materials or proceedings not subject to an order of non-disclosure under s.35(2) of the AAT Act. In the case of exhibit 4, the name of the deponent and identifying initials are subject to a non-disclosure order, the rest of the contents are open).

15. The procedure for making applications for access is addressed in s.40. Section 42 deals with internal reconsideration of decisions refusing access. If access is still denied s.43 establishes the jurisdiction of this Tribunal to entertain applications for review of relevant decisions of the Archives in respect of access to particular records, including, as in this case, refusal on the ground that the records are exempt.

16. Section 44 empowers this Tribunal, in conducting a review of any decision of the Archives for access to a record to decide any matter which could have been decided by the Archives in relation to that application. It is this provision that, according to the applicant's submission, provides a foundation for this Tribunal considering and determining whether in fact the searches made to date by ASIO of the files within the archival material has been adequately pursued.

17. In the open affidavit dated 29 April 1991 (exhibit 4) witness X in support of the claims that the respective documents were exempt, stated as follows:

"7. On the basis of my experience as an ASIO officer, the

knowledge I have gained as the Senior Executive Officer within

ASIO responsible for overseas liaison and the expressed views of

the United Kingdom Security Service ("UKSS") I can affirm that

folios 3 and 4 of item 312, which are together a report compiled

by a colonial police force, and folio 8 of item 407 (which is a

memorandum from a UKSS Liaison Officer) were passed in confidence

by the UKSS to the CIS.

8. In the performance of its functions and the provision of

advice to the Australian Government, ASIO cooperates with

friendly overseas liaison services as sources of information,

particularly in regard to counter-espionage, counter-terrorism

and technical research and development in a number of spheres.

The UKSS is such a service. The information obtained through

this cooperation is extremely important in allowing ASIO to

conduct its statutory functions effectively. There is no

prospect of such information being obtained by means other than

liaison with cooperating overseas security services. ...

9. In this regard the UKSS is a major source of information

and assistance. ...

10. ...Experience of a similar, recent incident involving

release of information into the public domain to which the United

Kingdom authorities objected causes me to believe that, at the

very least, an early result would be a review of liaison

intelligence exchange arrangements with ASIO and the UKSS. Such

a review would result in diminished confidence by the British

security and intelligence services, and by the British

Government, in the protection of confidentiality afforded to

their information passed to Australian agencies. A likely

consequence of such an assessment would be a reduction in the

quality and quantity of intelligence passed together with the

imposition of restrictive caveats constraining the purposes to

which that information may be put.

11. Therefore, I believe that the consequence of breaching

the confidentiality of UKSS supplied information would seriously

damage the security of Australia through the limiting of ASIO's

capacity to obtain information relevant to the performance of its

functions under the ASIO Act. In addition, the public release of

folios 3, and 4 of Item 312 and folio 2 of Item 407 would become

known to the United Kingdom authorities other than the UKSS and

that those authorities would react in a manner similar to the

UKSS, not only in their consideration of what information they

may provide to ASIO, but also in their attitude to the

confidential arrangements which may exist between them and other

Commonwealth agencies. ...

13. On the basis of discussions with senior officers of the

UKSS, I believe that the United Kingdom authorities including the

security service are concerned to ensure that the principle of

confidentiality of a source, and of the contents of information

provided, is to be preserved regardless of whether a specific

item of information is, was, or remains sensitive. All such

information transmitted from such sources is treated in

confidence by long-standing convention accepted and honoured by

the security services in many countries with which we have

dealings. It is understood by ASIO and the security and

intelligence agencies with which it cooperates that, unless

explicitly advised to the contrary by the donor service, all

exchanges of intelligence are made in confidence regardless of

when they were made and that this confidentiality exists until

such time as the originator of the document agrees that it may be

released in so far as the release of the information/material

into the public domain may be involved.

16. On 19 September 1984, ASIO sought from the UKSS a

letter explaining its position with regard to the release of

intelligence exchanges under the Australian Archives Act. On 3

October 1984 the UKSS replied confirming that" ...intelligence

exchanges are and always have been conducted on the basis that

they are in confidence... such exchanges remain in confidence

irrespective of the lapse of time". ...

17. Folio 8 of Item 312 is a report received by the Regional

Director of the CIS in Victoria... The material obtained therein

was obtained from a confidential source. It would be possible

for the source to be identified from the document. There is, and

always has been, a confidential relationship between ASIO and

providers of information to it and such a relationship existed

between ASIO's predecessor organisations and their providers of

information. Further, material contained in this folio would, if

released, be an unreasonable disclosure of the personal affairs

of persons described in the report.

18. Material contained in folio 9 of Item 312 and folios 34,

45-49, 73, 84-86 of Item 407 were obtained from confidential

sources by ASIO officers. The public disclosure of information

concerning the existence, identity or management of a source

would give rise to concern amongst ASIO's existing and potential

sources that the extent and nature of their assistance could be

disclosed at some future date. ...

19. Material contained in folios 84 and 87-88 of Item 407

was supplied to ASIO by sources in confidence. To release this

material into the public domain would constitute a breach of that

confidence and would further diminish the willingness of other

sources to continue providing ASIO with information relevant to

security.

20. Material contained in folio 8 of Item 312 and folios

4-5, 6, 9, 33, 41, 45-48, 72, 82-86 and 91 of Item 407 could be

used to gain an understanding of ASIO's modus operandi which has

in many respects changed little to this day. Such an

understanding could prejudice the operations of ASIO and thus

reduce the effectiveness of the Organisation in meeting its

statutory obligations. ...

21. Material contained in folio 9 of Item 312 and folios 45-48,

49 and 84-86 of Item 407 could enable a researcher to discern

the identity of a confidential source. The effect of such an

identification taking place even after thirty years could further

discourage existing sources from cooperation with ASIO.

22. Material contained in folios 87 and 88 of Item 407

relates to a confidential interview between Dr Cairns and an ASIO

officer, ...The interview was held at Dr Cairns' request and was

regarded by both parties as being confidential. To release this

information, even after 32 years, would be a breach of confidence

both to Dr Cairns and the third party concerned. ..."

Prime Ministerial Directives and the Hope Report Recommendation

18. Because they play a significant part in the evidence given by witness X, it is appropriate to set forth the terms of those parts of the two Prime Ministerial Directives that were given to the Director-General of ASIO by Prime Ministers B Chifley on 16 March 1949 and R Menzies on 6 July 1950, respectively (exhibit 14):

a. The Chifley Directive

5. The Security Service is part of the Defence Forces of the

Commonwealth and save as herein expressed has no concern with the

enforcement of the criminal law. Its task is the defence of the

Commonwealth from external and internal dangers arising from

attempts at espionage and sabotage, or from actions of persons

and organisations, whether directed from within or without the

country, which may be judged to be subversive of the security of

the Commonwealth.

6. You will take especial care to ensure that the work of the

Security Service is strictly limited to what is necessary for the

purposes of this task and that you are fully aware of the extent

of its activities...

7. No enquiry is to be carried out on behalf of any Government

Department unless you are satisfied that an important public

interest bearing on the defence of the Commonwealth as defined in

paragraph 5 is at stake.

10. You will establish a comprehensive set of security records.

In order to do this you will arrange that all Government

Departments and agencies submit to you for inclusion in your

records all information bearing on security which may be in or

come into their possession. You will also arrange to have such

access to the records of Government Departments and agencies as

you may deem necessary for the purposes of your work.

b. The Menzies Directive (Charter of ASIO)

5. The Organisation is part of the defence system of the

Commonwealth, and save as herein expressed has no concern with

the enforcement of the criminal law. Its task is the defence of

the Commonwealth and its Territories from external and internal

dangers arising from attempts at espionage and sabotage, or from

actions of persons and organisations, whether directed from

within or without the country, which may be judged to be

subversive of the security of Australia.

6. You will take especial care to ensure that the work of the

Organisation is strictly limited to what is necessary for the

purposes of this task, and that you are fully aware of the extent

of its activities...

7. No enquiry is to be carried out on behalf of any Government

Department unless you are satisfied that an important public

interest bearing of the safety of the Commonwealth as defined in

paragraph 5 is at stake.

12. For the purposes of the Organisation you will establish the

maximum co-operation with other agencies, whether of the

Commonwealth or of the States, operating in the field of security

(and, where appropriate, in the field of law-enforcement) in

Australia, and will maintain effective contact with appropriate

security agencies in other countries.

(emphasis added)

19. Also referred to in evidence were the recommendations made by Mr Justice R Hope in the first report of the Royal Commission on Intelligence, (exhibit 15). Relevantly the report states (at p 102):

"188. ASIO is an intelligence organisation and is required

to make assessments based on the information it collects.

Consequently one of its primary requirements is to have an

adequate records system for the storage and retrieval of

information."

20. In the first open session, witness X affirmed the statements made in the 3 affidavits sworn by him (subject to corrections of a typographical kind made to paragraph 18 of his affidavit of 31 January 1991). He also gave evidence subsequently, the effect of which is summarised below.

21. At the first closed session he also submitted 3 further letters which the Tribunal has accepted as exhibits 6, 7 and 8. These were submitted to the Tribunal in substantiation of paragraph 16 of the open affidavit of 24 April 1991 (exhibit 4) as well as the final point made in paragraph 17 thereof. They addressed the concern of the overseas agencies about the maintenance and importance of confidentiality to the existing relationships. The Tribunal would emphasise that the further material submitted did not introduce any new matter but stood by way of amplification or substantiation of the claims made in those two paragraphs. To similar effect was a further telex (exhibit 9) unavailable at the time of the hearing but subsequently filed with the Tribunal. The Tribunal made an order pursuant to s.35(2) of the AAT Act restricting disclosure of exhibits 6, 7, 8 and 9.

22. During the first closed session the witness also referred to instances in substantiation of the proposition that individuals who had acted as sources for ASIO were concerned about possible repercussions if their identity came to light. The earliest of these instances dated from the early 1960's. On the basis of the evidence received in closed session I am satisfied that foreign security agencies with which Australia cooperates would in fact take an unfavourable view about the extent of future cooperation if information supplied by them, even four decades previously, were revealed in Australia without their concurrence. I am also satisfied that there would in fact be legitimate instances in which particular individuals would be concerned if their assistance as ASIO sources were revealed despite the long passage of years since the information in question was obtained.

23. In the second closed session witness X also elaborated on ways in which during the cold war years espionage activities were carried on by Soviet agencies in Australia through the vehicle of the Communist Party of Australia ("the CPA") and how an organisation could become the subject of interest to that party. The witness spoke to circumstances where the concern of ASIO was not merely about specific people who were actually doing things that could be judged as prejudicial to security, but also about others whose activities may have security implications. I accept that in pursuing its enquiries it was necessary for ASIO to cast the investigatory net widely, and encompass persons who had no communist connections themselves and certainly no malevolent intent towards Australia's security.

24. In respect of particular matters, the witness gave evidence as follows:

. No personal knowledge of Dr Cairns

In cross-examination by Dr Flick, witness X conceded that

though he had been an officer of ASIO for 21 years his duties had

not involved any investigation of Dr Cairns nor had he had reason

to acquire information about the latter. Accordingly, his

experience with ASIO did not enable him to form a personal view

about the role which that organisation had been taking in

relation to Dr Cairns. Nevertheless, the witness asserted that

his knowledge of what was disclosed in the documents in dispute

was based on his reading of them and his considerable experience

in collecting intelligence including the problems that are

associated with it.

. Relationship with other security agencies

With respect to the effect of disclosure on operational

security relationships with the United Kingdom, his judgment was

based on his experience in the organisation since 1969. He

assumed that the relationship between ASIO and its UK counterpart

had been constant after and prior to 1968. His judgment of such

matters was based, in part, on advice communicated in a document

emanating from the United Kingdom dated 16 April 1991. This and

other documents received since 1986, from the United Kingdom had

sought to clarify the relationship in security matters between

the two countries. The documents could be seen to be a

restatement of the conditions which applied prior to 1986.

Witness X further conceded that in the United Kingdom some

security material is released at times. In relation to the

exempt materials, the subject of this application, the United

Kingdom authorities had not been asked, however, whether or not

the information in the documents in dispute remained confidential

or whether the information was publicly available in the United

Kingdom.

. Other documents known to refer to Dr Cairns

Witness X was shown two pages apparently marked as folios 68

and 69 (exhibit 13) and asked whether they formed part of the

sequence of the folios 66-70 of item 407. Subsequently, on the

second hearing day, the witness was able to confirm that the

folios in question were not folios 68 and 69 of item 407. His

affidavit of 14 June 1991 (exhibit 12) confirmed this. The

witness then explained that the two pages constituting exhibit 13

were obviously part of ASIO's records at one point of time that

had been transferred to the Australian Archives so that the

organisation no longer had a copy of the original in its

possession at the time that Mr McKnight made his application. He

added that whilst in the possession of ASIO the document would

have been in a subject file relating to the Communist Party of

Australia Dissolution Bill Referendum Campaign 1952 but, because

it had not been considered relevant to the file relating to Dr

Cairns, it would not have been included in the latter's file. On

a practical level, there might well be a number of other

documents relating to Dr Cairns which would not have been

accessed because the filing system would not have been directed

to the specific subject of Dr Cairns himself. He therefore

conceded that there may be other documents collected in relation

to Dr Cairns apart from the ones that he had read.

. Protection of "modus operandi"

The witness was also asked a number of questions in

cross-examination concerning the effect of disclosure of what had been

called in his affidavits, the "modus operandi" of the

organisation and how such disclosure would bring the information

within the purview s.33(1)(a) of the Act. He agreed that the

protection sought by ASIO extended not only to the disclosure of

any methodology employed by the organisation to acquire and

assimilate information but also to the particular circumstances

in which a methodology was employed. He did not agree that much

of the methodology actually employed by ASIO was already the

subject of public analysis and disclosure. It was true, however,

that among the methodologies employed to gather information,

telephone interception and the interception of telexes were

employed. As the witness pointed out, these are available,

subject to Ministerial authorisation, under the provisions of the

ASIO Act itself. (See, for example, s.26 and s.27 relating to

use of listening devices and inspection of postal materials).

He also confirmed that ASIO employed the method of keeping

people under surveillance and that of intercepting mail. He

went on to draw a distinction between the act of surveillance

itself and the particular techniques of how surveillance was

conducted and the circumstances in which it was used. In the

case of the information, the subject of the present application,

the witness believed that something in the methodology used in a

particular case was different from what had already been publicly

disclosed. With respect to some of the documents in dispute the

witness denied that the methodology of surveillance of student

groups was apparent, though in a more general sense he conceded

that the organisation did collect information about student

groups. It was therefore true to say that some of the documents

in dispute did disclose that ASIO had acquired information about

various student groups. Nevertheless, ASIO did not want to

indicate the precise details of the method used in a particular

instance since revelation of the method would be damaging to

ASIO's ability to do its job at the present time. A distinction

should be drawn between general modes of surveillance and the

particular method. In the latter respect, having access to

certain precise bits of information containing the analysis of

primary information collected by ASIO could itself reveal how the

information was obtained and could lead further to the

identification of a confidential source.

With respect to the specific documents included as folios 4

and 5 of item 407 (in respect of which only a partial exemption

is asserted), though it was clear that the document disclosed

membership of the Malayan Students Association of Victoria, the

location of its headquarters and information about its various

committees, the witness maintained there would be prejudice in

releasing the balance of the information since it could disclose

both a source of that information as well as an analysis of it.

In qualification of whether it disclosed a confidential source,

the concern of the witness was that whilst the document itself

might not disclose the source, put together with other documents

it might well do so (see "Mosaic" theory in following section).

From ASIO's point of view, it was not possible to consider one

document in isolation. He conceded that if the judgment was to

be made solely on folios 4 and 5 of item 407 and without regard

to other information, it would be hard to support the denial of

access on that ground.

Further cross-examined on the meaning of modus operandi, the

witness agreed that surveillance includes following people

covertly, but that ASIO engaged in covertly obtaining information

by methods other than following people. In such cases it was the

actual mechanism whereby information was covertly obtained that

would constitute a method which ASIO would not wish to have

publicly disclosed.

. The "Mosaic" Theory

With respect to what has generally been described as the

"mosaic" theory, the witness conceded that he was unable to point

to any other document in issue in these proceedings which might

affect the disclosure of the three specific paragraphs claimed in

folios 4 and 5 of item 407.

With respect to folio 82 of item 407 the witness asserted

that disclosure of the particular notation on the document might

enable people to look at other documents and draw conclusions

from them in terms of identifying an individual or acquiring

information that could form part of the mosaic theory. In

relation to the mosaic theory, the witness was of the view that

it was necessary to err on the side of caution.

In that respect the witness identified, by reference to folio

5 of item 407, that if two of the deletions made to that folio

were put together with other information they could led to the

identification of the source. The witness conceded that

identification would depend on whether someone had sufficient

information about the person so that the subject of the

information involving a number of incidents could, by a process

of deduction, result in the identification of the source. The

witness could not however identify any concrete circumstance

within his knowledge that could form part of the mosaic.

Re-examined about the mosaic theory, he explained that the

information that could be brought to bear to come to such

conclusions might not be contained in ASIO's records themselves

but be known to persons engaged in researching security issues.

In this respect it was relevant to recall that, firstly, ASIO

could not be sure about what other information might be held by a

researcher such as the applicant. Further, given that the number

of persons in the groups who associated with Dr Cairns was

relatively small, an interested person like the applicant could

possibly deduce the identity of a confidential source from other

information held by that person.

The witness was referred to folio 40 of item 407, a document

which, as appears from page 7 of the Schedule to the affidavit of

witness X sworn 29 April 1991 (exhibit 4), contains technical

exemptions not in dispute between the parties. The witness

stated that the document attracted s.33(1)(a) because it revealed

a source of information which should be kept confidential. The

witness conceded that relation to this and other documents in

respect of which exempt status was claimed he had had no personal

involvement as an ASIO officer. His judgment was based upon the

content of the document and his experience. Shown a document by

Dr Flick (exhibit 11) which was the same as the one in respect of

which exemption was claimed the witness said it would not

surprise him to know that that document had in fact been released

by Archives. He said that nevertheless it would not change his

opinion in any substantial way to know that.

. Whether ASIO acted within its charter

In respect of a more general issue raised by an applicant,

namely whether ASIO was acting within the terms of its charter

when accumulating any of the documents in dispute, the witness

stated that he was not aware of the particular task that ASIO was

engaged in in 1949 or 1951 that might have caused the documents

to be collected or produced. Not being able to identify the

tasks that were being pursued by ASIO in the early 1950's which

led to the production of the documents, the witness could not say

whether the information contained in them was strictly limited to

what was necessary for the purposes of pursuing those tasks.

Concerning the directives of Prime Minister Chifley and Prime

Minister Menzies, the witness stated that he believed that the

information in the documents in contention was generated in the

course of ASIO pursuing the general task of defence of the

Commonwealth from external and internal dangers. His knowledge

was not such that he could tell the Tribunal why the information

in the documents was essential to that task.

In subsequent re-examination of the witness he stated that at

the time when it was collecting the information the subject of

the proceedings one of the tasks of ASIO was investigation into

the activities of the Communist Party of Australia. It had

exploited other groups by having members of the CPA join in those

groups, quite often without declaring their affiliation with the

party, and seeking to influence the activities of those groups.

In his view, entities mentioned in the documents in question were

organisations of interest to the CPA and it was ASIO's task at

the time to establish the extent of the success of particular

communists within those organisations. ASIO had had to come to

some conclusions as to whether the activities of those communists

were relevant to security or not. The East West Committee, from

his experience, was such an entity and, from the documents, he

would conclude that the Malayan Students Association of Victoria

was also such an entity of interest to the party.

. Adequacy of records

With respect to the maintenance of records, the witness

confirmed that in the 22 years that he had worked for ASIO, he

had been responsible for the ASIO registry which included the

filing system. He confirmed that the filing section had at least

2 components, that is files classified according to subject

matter and a category according to particular persons. This

system, the witness stated had remained much the same since its

inception and would only have involved small changes from 1955 to

1985. When first questioned about it by Dr Flick, the witness

said that it could not be described as a "comprehensive" filing

system. In latter evidence he explained what he understood by

"comprehensive".

The witness confirmed there was a file in the name of Dr

Cairns. He agreed that the more comprehensive a filing system

was the more complete the response that could be given by ASIO to

a request for access. When referred to the directive by Mr

Chifley, Prime Minister, establishing ASIO, and in particular the

direction that the organisation should establish a comprehensive

set of security records, and asked whether he would agree with

the proposition that at no point since 1949 had ASIO kept "a

comprehensive set of security records", the witness described

that proposition as correct. He qualified this by agreeing that

the retrieval system was nevertheless "adequate". With respect

to the recommendation in the Hope Royal Commission's first report

that ASIO maintain an adequate record system for retrieval of

information (see p 12 above), he stated that that recommendation

had not been implemented at the date of hearing. The witness

later pointed out that whether one held the opinion that the

records were comprehensive depended on the interpretation of the

word "comprehensive". He maintained nevertheless that the

organisation had taken significant steps to computerise the

indices of the files though the information in the files was not

on computer. The fact of automating the indices did have a

result that searchers can now be far more efficient than was the

case with the retrieval information in 1977.

In re-examination, when asked about the requirement in the

Prime Ministerial Directive that ASIO establish a comprehensive

set of security records (see p 11 above), the witness stated that

he believed ASIO was complying with them in that the records were

"comprehensive" in the sense of enabling the organisation to

perform its functions of obtaining intelligence relevant to

security and advising governments where necessary. When, in

cross-examination, he had expressed the opinion that ASIO's

records were not comprehensive, he had taken the question to mean

whether the records were capable of retrieving information about

every name that might appear in those records. He conceded that

they were not comprehensive in that sense but were sufficiently

comprehensive for ASIO's purposes of obtaining and recording

information relevant to security.

The witness further explained that there would certainly be

other files where Dr Cairns' name would occur but a decision

would have been made by the record keepers of the day not to copy

that information onto Dr Cairns' personal file. Thus while

records could exist within ASIO's holdings which include the name

of Dr Cairns or contain other information about him, that

information was not necessarily linked to the reasons why ASIO

held a personal file on Dr Cairns. It would take a considerable

research task, if, besides looking through Dr Cairns' personal

files, a search were to be made by taking the name of every other

individual or organisation with which he was associated, going

through that file, and continuing that process further.

Submissions of Parties

Applicant's contentions

By way of general observations, Dr Flick submitted that so

far as the respondent's claim that particular documents or parts

of them are exempt was based on paragraphs (a) and (e) of

s.33(1), the requirement of a reasonable expectation in each case

could not be satisfied if any relevant expectation entertained

about those documents was irrational, absurd or ridiculous.

(Attorney-General's Department v Cockroft (1986) 12 ALD 468). He

further submitted that the requirement was not satisfied for any

one of four reasons:

i. As a factual matter that negated the ability of the

respondent to assert that there was a reasonable expectation of

damage, the lack of knowledge on the part of the witness as to

whether or not the information contained in particular documents

had or had not been released in the United Kingdom left it a

matter of speculation as to whether or not damage of the

requisite kind would follow. Being speculation, this Tribunal

could not say that there was a reasonable basis for any

expectation of damage. This was compounded by the fact that as

recently as 16 April 1991 an enquiry had been directed to the

United Kingdom authorities, to ascertain the general situation

with respect to possible release of documents such as those in

dispute, but the respondent had not taken advantage of that

opportunity to check if any of the information in contention in

which the UK authorities had an interest had been released in

that country. This was not to say that there was an obligation

upon the respondent to make enquiries to see whether other

parties objected to the release of information, but given that

the opportunity was there it should have been taken to pursue the

matter further.

ii. Further, in addressing the mosaic theory as a basis for

claiming that the release of a particular piece of information,

innocuous in itself, could, in conjunction with other known

information, be reasonably expected to cause relevant damage,

counsel for the applicant accepted that it might apply where

disclosure of a particular piece of information about

circumstances in which surveillance was being conducted could,

when taken with other specific facts, (eg. of the particular

location), fit into a larger mosaic where that mosaic was

concrete and tangible. In the present circumstances, however,

since witness X could not clarify what the elements of any

particular mosaic might be, it was therefore a matter of pure

speculation about what damaging effects release might have. Since

he had not been able to identify any particular circumstances

which might contribute to the mosaic theory in relation to the

information claimed to be exempt, the Tribunal could not say that

there was a reasonable expectation of the kind of damage that

might ensue. This was particularly so as regards a claim under

s.33(1)(e)(ii) of the Act seeking to prevent disclosure of a

confidential source of information. This was not only the case

with respect to the identification of particular facts, matters

and circumstances limited to the information in issue; it was the

case so far as it concerned any information on a far broader

basis. As such it was, again, a matter of pure speculation

whether some such other information forming part of a mosaic

might exist. As a matter of speculation, lacking something

concrete or tangible, it must be regarded as something absurd or

irrational and could not satisfy the condition of a reasonable

expectation.

iii. Prior to 1956, (ie. when the Australian Security

Intelligence Organisation Act 1956 came into operation), at the

time when a large number of the documents in dispute came into

existence, ASIO was operating on the Prime Ministerial

Directives. Its task as stipulated in those directives was the

defence of the Commonwealth from internal or external dangers

arising from attempts at espionage. It was part of this

responsibility that the organisation should take special care to

ensure that the work of the security service was strictly limited

to what was "necessary" for the purposes of that task (eg.

paragraph 6 of Chifley Directive). Since no clarification had

been provided by the witness of why collecting the information in

dispute in these proceedings had been necessary for those

purposes, it was open for the Tribunal to conclude that there was

no basis upon which the information could be said to be strictly

necessary for the task of protection against communism (which was

the principal task undertaken by the organisation). If ASIO was

acting outside the charter entrusted to it, it could not claim

that there were would be damage to security within the meaning of

s.33(1 )(a) of the Act. That is, information not relevant to

that issue would not legitimately be within the subject of the

legislative structure. This would turn, to some degree, upon the

meaning of the expression "damage to security, defence or

international relations" and involve an implication that exempt

information would have to have been acquired legitimately by ASIO

in discharging its responsibilities.

As an alternative way of approaching the subject, even if release

of information collected in pursuit of an impermissible task

could still damage security, to do so could not be said to create

a reasonable expectation of damage in the absence of any concrete

identification of what were the necessary objects of the

acquisition.

iv. The Tribunal, in deciding what weight to place on the evidence

of the witness, should take into account that by his own

concession, he had no familiarity with the transactions that were

the subject of the information in dispute, hence little reliance

could be placed on his evaluation of the circumstances of each

document. Thus when confronted with the fact that one of the

documents (item 407 folio 40) referred to in his affidavit of 26

April 1991, though not in contest in these proceedings, had in

fact been the subject of release (see exhibit 11), his judgment

about whatever damage might have been caused could not be relied

on in the absence of any direct knowledge.

. Adequacy of Search

Relating to the adequacy of the search (described by Dr Flick

as "the subsidiary issue"), it was submitted for the respondent

that this Tribunal possessed the power to direct further searches

and that this was a proper case in which that should be done.

This flowed from the fact that the legislation provided that

there was a right of access to certain documents. That right of

access could not be frustrated or impaired by a totally

inadequate filing system, if that were the case in this instance.

Dr Flick submitted that it was not enough to say the filing

system was sufficient to allow retrieval of information relevant

to ASIO's purposes (in terms of discharging ASIO's primary

function and statutory responsibilities) but whether it was

adequate to locate documents to give effect to the statutory

right of access.

In this particular case it was submitted there had been a

total disregard to the Directives of Prime Ministers Chifley and

Menzies and a further disregard of the recommendations of the

Hope Royal Commission regarding maintenance of an adequate record

system. He referred in particular to the Directive that the

Director-General of Security should "establish a comprehensive

set of security records" (paragraph 10 of Chifley Directive) and

further that:

"In order to do this you will arrange with all government

departments and agencies to submit to you for inclusion in your

records, all information bearing on security which may or may not

come into their possession."

Based on the answers of the witness, that the records

retrieval system had remained constant and had changed very

little over four decades, although the indices to the filing

system had been computerised, this Tribunal could not say with

any confidence, so it was submitted, that all the documents

within the ambit of the request had been identified, either for

the purposes of release or for the claim of exemption. This was

in the context where the onus of making any exemptions remained

on the respondent (s.51(a) of the Act). Nor was the proper

response to say that the files of ASIO were directed towards ASIO

accessing information for its national security purposes and not

for complying with any other legislative requirements. In this

instance the applicant had himself been able to point to another

document (exhibit 11) and establish that witness X was unaware

that it had been released. Arguably, it also fell within the

request for disclosure. This demonstrated that an adequate

search had not been conducted.

b. Respondent's contentions

(i) As to whether there was a reasonable expectation of

damage to international relations, the respondent primarily

relied on exhibits 6, 7,8 and 9. These established the guidelines

upon which foreign agencies have established and re-established

their relationship with the Australian securities services in

relation to the release of documents and information supplied by

those foreign services. The question posed in respect of damage

within s.33(1)(a) was not limited to any harm that could

reasonably be expected to flow merely from a release of the

information itself, but extends to the harm of disruption to

security relationships that could reasonably be expected to flow

from non-compliance and non-fulfilment of the procedures that

have been established between the agencies and different

governments. Hence what the British authorities might choose to

do by way of release of documents in the United Kingdom should be

viewed differently from the consequences that might follow if the

Australian authorities released the same information in

Australia.

(ii) Turning to the mosaic theory, it was submitted that

merely because a witness was not able to give a concrete example

of why release of a particular piece of information would be

prejudicial, that did not detract from the contention that there

was a well-recognised way in which the analysis of information by

reference to an increase of other information could lead to the

discovery of a person's identity. The absence of an example

could not make the expectation of damage unreasonable.

(iii) With regard to the arguments based on the possibility

that ASIO may have been collecting information outside its

charter, Mr Robertson contended that there was simply no factual

basis supporting such a claim. The fact that the witness was not

able to address, from his knowledge, the precise details of the

operations engaged in by ASIO provided no basis for saying that

the activities might have been beyond the relevant functions of

the organisation at the time. In fact, on the contrary, it was

open to the Tribunal to find that the information gathered, on

the face of the documents, quite clearly related to matters that

were at the heart of one of the major functions of ASIO at the

time, going as they did to the question of the impact of the

Soviet Union on the domestic affairs of Australia during the Cold

War period.

In this respect it was not proper to interpose between the

language of a statute and the documents to which the language of

the statute had to be applied, the Prime Ministerial Directives

concerning the function of the organisation since, by their

nature, they did not give rise to any right to information. They

were commands to people in the executive arm of government,

primarily the Director-General of the organisation, as to how

they should conduct the affairs of the organisation. They could

not be taken to be legal prescriptions. Rather, the question with

which the Tribunal was concerned was the quality of the

information in the documents.

(iv) The fact that the witness was not directly involved in

the transactions concerned in collecting the information in the

disputed records should not be taken to detract from the fact

that the witness had 22 years experience of intelligence

gathering and analysis. No adverse inference should therefore be

drawn from his evidence. He was entitled to take the view that

he did not agree with the release of a particular document that

was in contention in these proceedings. This view was consistent

with the decision of Deputy President Todd in re Slater and Cox

(Director-General, Australian Archives) [1988] AATA 110; (1985) 15 ALD 20 and at

29. It was conceded that the fact that it had been released

might complicate the matter but this did not prevent the

respondent maintaining its view about the information. In this

regard the respondent accepted that disclosure would weaken a

claim to exemption but insisted that the question was still

whether the further disclosure could reasonably be expected to

have the relevant consequence. The fact that a document had been

released does not mean that it necessarily loses its character as

an exempt document.

. Adequacy of Search

Going to the adequacy of search, Mr Robertson conceded that

in relation to the powers of the Tribunal, and particularly

stemming from s.44 of the Act, the Tribunal could say that it was

satisfied there was a particular document in existence that had

not been produced, or that there was a particular class of

document that existed that had not been produced.

In the latter respect, the Tribunal should distinguish

between documents which merely had some peripheral relationship

to Dr Cairns in the sense of perhaps mentioning his name or the

name of someone with whom he was associated, and those documents

in issue in this hearing that had a more substantial relationship

to Dr Cairns.

In the light of the extensive searches that had been made and,

following communication with the applicant which led to further

searches of files relating to particular nominated organisations,

which process had more documents being produced, there was no

obligation upon the respondent to seek further for other

documents.

The fact that the system had been constant for 40 years was

not to be taken as criticism of the system. Hence, overall,

there was no basis for the Tribunal, as a matter of evidence, to

make any order for any further searches to be done.

Discussion of general submissions and relevant findings

25. In respect of the matters discussed below, I have proceeded on the basis that, by virtue of s.51 of the Act, the onus lies on the respondent to sustain the claim that the records in dispute are exempt.

26. For the purposes of dealing with the above submissions, I make the following findings based on the evidence I have read and heard in this matter.

(a) Witness X was not aware prior to the hearing whether any

of the information contained in the materials in dispute had been

released in the United Kingdom.

(b) Witness X was not able to refer to particular instances

in the materials in dispute, or in any other document, which when

read with specific pieces of information claimed to be exempt,

could lead to the identification of a confidential source of

information.

(c) Witness X was not involved in, or had any direct

knowledge, of the transactions concerned with the collection of

the information in dispute.

(d) Disclosure of the notations on document folio 82 of Item

407 could allow inferences to be drawn that could lead to the

identification of individuals as sources if put in context with

information in other documents.

(e) The document received in evidence as exhibit 11 is the

same as that in item 407, folio 40.

(f) There is no basis in the evidence including the documents

themselves to suggest that in collecting the information in

dispute, ASIO, at the time, was acting beyond or outside the

terms of its charter as specified in the Prime Ministerial

directives.

(g) In relation to the techniques and methods employed by

ASIO to gather information, revelation of the circumstances in

which it was gathered may also disclose the technique or method.

Other relevant findings are made below.

27. It is true that, when evaluating for the purposes of s.33(1)(a) and (e) of the Act whether the disclosure of any particular information could reasonably be expected to cause damage to Australia's relationship with other security organisations and hence impair the future exchange of relevant information, the grounds for such a claim must not be fanciful, imaginary or contrived but must be reasonable in the sense that they are based on reason, or agreeable to reason, and are not irrational, absurd or ridiculous (Attorney-General's Department v Cockroft (1986) 12 ALD 468; Slater 15 ALD at 26). I do not accept, however, that the inability of the respondent to establish whether or not any of the information in dispute has or has not been released by overseas authorities leads to the conclusion that the ground for claiming exemption can be described as fanciful or irrational. The fact that ASIO could have verified whether any of the information had been released elsewhere does not require, as a matter of logic, that any of the material claimed to come within s.33(1)(a) or (e) of the Act loses its exempt status. Further, the Tribunal is satisfied, on the materials before it, particularly the communications of overseas authorities and those emanating from overseas governments (exhibits 6 to 9), that there would be a substantial detriment to the further release of current and future intelligence information if they were not secure in the belief that, even in many years to come, the confidentiality of information so supplied would be respected. It is true that there must be something more than the mere possibility of damage (re Maher and Attorney-General's Department (1985) 7 ALD 731, at 742). In this respect it is the potential detriment in terms of a possible diminution of the flow of intelligence that is relevant, not whether the attitude of those foreign authorities and governments is itself reasonable. It is enough if the Tribunal finds, as I do, that disclosure of exempt material furnished by a foreign government would lessen the confidence which another country reposes in the Australian authorities (Maher, above, at 742). As Deputy President Todd pointed out in Slater, 15 ALD at 29, "security is a particularly sensitive area and particularly dependent for its effectiveness upon an adequate flow of information". The damage that can be reasonably expected to flow from such disclosure can be characterised as being both to Australia's international relations, in the first instance, and to its defence and security as a consequence.

28. In general terms, I do not regard the mosaic theory, otherwise described as a theory of "cumulative prejudice", to be discredited merely because those seeking to uphold it are not able to verify or identify the other circumstance which, when put with information to which access is sought, may reveal either a source of information or a particular method for collecting such information, or disclosure of the kind of circumstances which may be the subject of security analysis. The mosaic theory does not depend, as I understand it, simply upon information within the possession or knowledge of a security organisation. It may be accepted that claims made in respect of the mosaic theory are ultra cautious but it would be a logical fallacy to conclude that even an excessive degree of caution exercised in that respect demonstrates, in itself, a lack of rationality. Where particular claims for exempt status rely on this theory, the Tribunal should be slow to substitute its own non-expert judgement for that of officers who have had a long connection with intelligence gathering. This Tribunal has consistently given credence to the mosaic theory (see Slater 15 ALD at 27; re Robinson and Department of Foreign Affairs (1986) 11 ALN N48, re Throssell and Australian Archives (1986) 10 ALD 403 at 406 and 407 (Throssell (No 1)) and re Throssell and Department of Foreign Affairs [1987] AATA 545; (1987) 14 ALD 296 (Throssell No 2)). Whilst I accept that in the present instance, on the evidence before me, including that of witness X, there is a degree of speculation, I am nevertheless satisfied that, if regard is had to the kind of materials dealt with in the documents in issue, and especially the possibilities of an informed researcher making deductions from the kind of analyses there recorded, given the relatively small size of the group of persons involved, that speculative element is not sufficient of itself to defeat a claim for exemption.

29. In response to the argument that the Tribunal could not be satisfied that ASIO was acting within its charter at the time when the relevant information was being collected, and further if that be the case, the respondent could not claim that the release of the information to which access is sought could compromise the pursuit of the legitimate objectives of ASIO, I am of the opinion that, in the first place, even if the collection of any particular piece of information in dispute had travelled outside the strict boundaries of the task given to ASIO in the Prime Ministerial Directives, that does not, of itself, invalidate the claim to exemption. Even if, to put the case at its highest, the information had been illegally or improperly obtained, its disclosure could still seriously prejudice the ongoing operations of ASIO. To say that is not to sanction any possible breach of the law: it is to say that release to someone such as the applicant is not an appropriate remedy. In this regard, I agreed with counsel for the respondent that the Directives were administrative commands addressed to the organisation: they were not directed to providing a mandate for access.

30. More significantly, the activity of gathering such information necessarily occurs in a context where information may be sought even though at the time of seeking it, its relevance to a particular security matter may not have been established. I accept, in any event, that the information in dispute was pursued as part of an exercise to gather information about the extent of penetration of particular organisations by the CPA and about the activities of particular individuals who, though they might not themselves be members of that Party, were subject to its influence.

31. The Tribunal further accepts that that is a judgement that should be evaluated according to the perceptions current in the late 1940's and early 1950's. At that time covert activities by the CPA were considered to be detrimental to the security and defence of Australia. In other words even if to a present-day eye a different conclusion might be drawn about whether surveillance of particular individuals or activities was justified, or whether or not there was an undue concentration on particular activities, that is not to the point. At the time when the information was being collected, the organisation was not constituted by statute. Nevertheless to the extent that, as in the case of Australian Security Intelligence Service discussed in Slater (above), the organisation drew its authority from the prerogative or executive powers of the Commonwealth, relying on a combination of constitutional powers such as s.61 in execution of s.51(vi) and s.51(xxxix) and the "inherent power of nationhood" (see Protective Security Review, Report of Justice Hope, 1979, Parl. Paper 397 at 149 discussed in P W Johnston, Re Tracey: Some Implications for the Military - Civil Authority Relationship (1990) 20 UWA Rev 73 at 79) the ambit of its tasks and powers should be read in an expansive manner. Moulding my interpretation of the Prime Ministerial Directives to that broad understanding, I do not accept that the activities of ASIO indicated in the records under review can be found to be in excess of its stipulated role, even taking into account that the mandate given by the charter is that the organisation restrict its activities to those strictly necessary for the preservation of Australia's defence and security.

32. On the evidence before me, including my reading of the documents in dispute, I am therefore satisfied that ASIO did not exceed its charter, and to that extent the argument relying on that feature cannot succeed. The kind of interest shown towards organisations such as the Malayan Students Association, though perhaps curious at this remove of time, could fall legitimately within ASIO's charter to protect the nation against threats to its defence and internal security and thus fit within paragraph 6 of the Chifley and Menzies Directives respectively.

33. Further, I am not prepared to hold that the lack of specific knowledge on the part of the witness about what dangers the activities or associations of Dr Cairns constituted, or why he was the subject of interest by ASIO, can defeat the claims for exemption. The character of the activities and the nature of ASIO's investigations at the time are not dependent on the state of knowledge of a particular witness. In this regard, even if it be the case, in hindsight, that the interest shown by the organisation in Dr Cairns was misguided and misplaced, that does not of itself render illegitimate the information-gathering so conducted.

34. In particular, the claim for exemption does not fail, in my opinion, even if it should be established (which it has not been) that there had been an exceeding on the part of ASIO of its charter under the Prime Ministerial Directives, because of some public interest consideration. There is in fact no public interest test requiring a balance between the statutory right to access and the interests of security imposed in relation to s.33 of the Act (Slater, 15 ALD at 26; Throssell (No 1) above, at 406). Unlike s.33A(2)(b) of the Freedom of Information Act 1982, s.33 of the Archives Act contains no balancing test.

35. The fact that a particular document has been released into the public domain in my opinion, does throw a significant shadow over a claim for exempt status. I agree with counsel for the respondent that release is not determinative and as Deputy President Todd did in Slater (15 ALD at 29) I accept that a claim for exemption may be sustained despite such release. Nevertheless the weight of a claim for exemption in relation to a document already released must be substantially discounted in such circumstances.

36. So far as the adequacy of search is concerned, I have found this the most problematic aspect of this application. I accept, in the first place, the general proposition advanced by Dr Flick that the adequacy of the filing system employed by ASIO is a matter properly within the consideration of the Tribunal in order to make effective the right of a person to request access to archival matter available for public access pursuant to s.31(1) of the Act. I also accept that incidental to its review function under s.44(1) of the Act the Tribunal has at its disposal such necessary powers vested in it by virtue of s.50(a) of the Act as the Director-General of the Archives could exercise under s.7 of the Act. This would entail a power to give directions relating to further searches if proper grounds exist. Not to be so armed would sterilise the Tribunal's effective review of this application.

37. It should firstly be said that I do not accept that the matter rises or falls on whether or not ASIO has maintained, in general terms, "a comprehensive" set of records within the terms of the Prime Ministerial Directives. Though there was much debate about the meaning of the word "comprehensive" and in particular whether the judgement of whether the system was such was to be made having regard to the function of retrieval of such information for the purposes of the organisation, or for the purposes of satisfying public requests for access, that, as I see it, is not to the point. A finding that the records are not 'comprehensive' within the terms of the Prime Ministerial Directives does not necessarily carry with it a conclusion that this Tribunal should require further measures to be undertaken so that all documents that potentially are within the applicant's request can be identified. The question of adequacy must be approached from the point of view of the state of the records as they now exist, including the capability of the system for locating particular records subject to the Archives Act.

38. So far as this application is concerned, it was, at least in its original terms, directed to the files of ASIO that directly concern Dr Cairns. The initial response of the respondent was in those terms, taking into account that the personal indexes are the prime source of information in that regard. Accepting the possibility (as I do) that he maybe the subject of other records or documents that have been within ASIO's possession, and which may be disclosed by further searches according to various categories of subject matter, it is significant, in my view, that the Act does permit someone in the position of the applicant, whose researches may encompass a very wide range of knowledge of relevant organisations, to make other requests for access based on such knowledge, in terms of disclosure of information in those files which relates to Dr Cairns. That is in fact what happened here. Absent a clear or even substantial indication that there is a particular area of information that should be further searched for the purposes of satisfying the requests on which this application is founded, I am not prepared to find that the searches to date have been inadequate insofar as they have failed to disclose other documents that could fall within those requests. I take the view that this is a matter where it is open to the applicant, as the requestor, to initiate lines of enquiries that may then be pursued seriatum by the respondent in a co-operative way, mindful of its responsibilities under the Act. In regard to the latter, I am satisfied that the respondent has not been deficient or desultory in seeking to discharge its duties under the Act in its responses to date. The fact that a particular document relating to Dr Cairns has been produced from those released publicly, which document was not previously included in those provided to the applicant in response to his request does not, in my view, detract from that finding. It illustrates the difficulty of locating individual documents among the large number within ASIO's collection at the time, many of which will bear dual or multiple characterisation depending on what were the principal reasons why the information in them was recorded.

39. Put another way, the Tribunal has to approach this aspect of its task with a degree of practicality. Though there may be singular instances that suggest the potential existence of further documents, lacking something more tangible, the Tribunal should not give directions that would entail an exponentially widening search based merely on references to Dr Cairns. That would be to invite an endless search of corridors leading off corridors. Such a prospect can be avoided pragmatically, in the present case, by the applicant availing himself of his accumulated knowledge of Dr Cairns' affairs to make further requests for access to other files that, in the light of what he knows, might yield the further information he seeks.

40. Below, I deal with certain of the records claimed to be exempt where I have considered it desirable or necessary to make particular comments. In respect of other documents not so singled out, I have accepted the reasons more particularly set forth in the schedules to the affidavits of witness X (exhibits 4 and 5) and upheld the claim on the bases there indicated.

41. Where I have concluded that any part of a document should not be accepted as exempt, apart form generally indicating it in these reasons, I have specified it more particularly in the Confidential Schedule to the reasons, the contents of which are not to be made public until 14 days after delivery of this decision and reasons.

(a) Item 312, folios 3 and 4. This is a report supplied in

confidence through the UKSS. I am satisfied that this document

qualifies for exemption under both s.33(1)(a) and (b) as its

release could reasonably be expected to cause damage to

Australian security arrangements and international relations with

other countries and in consequence, damage to the security of the

Commonwealth itself by reason of the potential diminution of the

flow of intelligence from overseas sources. It also qualifies as

material passed in confidence by an authority of a foreign

government.

(b) Item 312, folio 8. This is a report of an investigating

officer. I am not satisfied that the disclosure of the

paragraphs numbered 2 and 3 in this report can be characterised

as exempt for the reasons set forth in either s.33(1)(a) or

(e)(i) of the Act. Whilst the information in those paragraphs

does relate to the methods and techniques by which ASIO, through

its past operational procedures, has gathered information, and to

the purposes for which that information might be sought, I

consider that the revelation that ASIO used the particular source

of information indicated there to ascertain the relationship

between individuals is a matter that would be apparent to anyone

who gives it a moment's thought. Since the onus is on the

respondent in this instance (see s.51 of the Act), I am not

satisfied that the onus has been discharged with respect to the

claims based on s.33(1)(a) and (e). I cannot accept that damage

can reasonably be expected to flow from the revelation of the

use of this source, anymore than it would be the case if it

became known that security organisations may from time to time

resort to the telephone book to establish an address. I have

formed the view, however, that paragraphs 2 and 3 of the document

are exempt by reason of s.33(1)(g) in that they do reveal

information of a private nature and that release of the same

would involve an unreasonable disclosure of private affairs. It

might be thought that the information so revealed is well known

and could be established through other sources but as I

understand s.33(1)(g) it is the aspect of privacy that is

paramount and merits special protection. There being a

reasonable basis for concluding that disclosure of the fact that

information was collected about an individual could embarrass

that person, I uphold the document as exempt under s.33(1)(g).

In respect of the balance of the document, for the reasons given

in the two affidavits of witness X (exhibits 4 and 5) I am

satisfied that it has a character falling within s.33(1)(a),

(e)(i) and (g). Particularly in respect of the latter provision

the information contained in the document, if disclosed, would

amount to an unreasonable revelation of, and intrusion into, the

private affairs of an individual.

(c) Item 312, folio 9. I accept and am satisfied that apart

from the information indicated below, the balance of this

document is exempt by reason of s.33(1)(a) and (e)(ii) since its

disclosure could reasonably be expected to cause damage to the

security of the Commonwealth, and further, the possible

revelation of the identity of a confidential source.

42. I am not so satisfied in respect of the part indicated in the Confidential Schedule to these reasons. The facts there recorded represent partly facts and partly the recording of an opinion which may or may not be true. The fact that the statement which I consider is not entitled to an exempt status was to be found in ASIO records is quite equivocal. Nothing is to be inferred either as to its accuracy or liability.

43. With respect to the remainder of the document, I am satisfied that the respondent has discharged its onus for the reasons given in the affidavits of witness X.

(d) Item 407, folio 2. Memorandum from UKSS to ASIO. I am

quite satisfied by virtue of s.33(1)(a) and (b) that this is a

document given in highest confidence by an agency of a foreign

government and its release could reasonably be expected to result

in damage to Australian security, particularly having regard to

the views expressed in exhibits 6 and 7. For the reasons claimed

in the schedule to the affidavits of witness X, I am satisfied

that the material deleted from this document is exempt.

(e) Item 407, folio 4 and 5. For the reasons given in the

affidavits of witness X, I consider this material is exempt. I

should say that the statement deleted from paragraph 3 of folio 4

should be regarded as exempt by reason of s.33(1)(a) alone.

(f) Item 407, folio 84. Whilst I would uphold the exempt

status of most of the deletions made to this folio for each of

the reasons asserted in the affidavit, I would not do so in

respect of the two references in the Confidential Schedule. My

reason for not being satisfied that those two items are exempt is

that I do not accept that a more precise identification of two

persons whose names are otherwise disclosed have any of the

detrimental effects alleged. Whilst this may be only a small

concession, I am of opinion that an overly rigorous resort to a

claim for exemption is not justified in this instance.

(g) Item 407, folio 86. Apart from the material listed in

the Confidential Schedule I would uphold the exempt status of the

information deleted in this document for the reasons appearing in

the schedule to the affidavit. My reason for not being satisfied

in relation to the particular sentence in question is that, put

on a commonsense basis, I am not persuaded that harm could

reasonably be expected to result from the disclosure I have

indicated in the Confidential Schedule. Nothing novel or

otherwise significant for security purpose flows, in my judgment,

from the revelation of the interest ASIO held in regard to the

information so indicated. In my opinion it should be disclosed

as not satisfying any of the tests presented by s.33(1)(a),

(e)(i) or (ii). I do not regard disclosure to the very limited

extent that I propose, as disclosing the modus operandi of the

organisation, or anything of substance about its process of

analysis that would lead to damage to Australian Security or

prejudice to the operations of the organisation. Nor am I

persuaded it would lead to the identification of a confidential

source.

44. I have carefully taken into account the evidence, including reading each record in the light of the grounds for the claim of exempt status set forth in the schedules to exhibits 4 and 5. I am satisfied that, subject to the variations I have indicated in the Confidential Schedule to these reasons, the decision under review should be affirmed in respect of the archival records to which access is sought by Mr McKnight and which are before me in the present application.

45. So far as the information that I have found not to be exempt is concerned, though no public interest test is to be read into s.33 of the Act, a sense of proportion should nevertheless be maintained in relation to records that fall within the open record period. The concessions made in this decision in favour of disclosure of particular information may not appear of great significance. But they represent my view of the relevant provisions of the Act that, consistently with the onus lying on the respondent to justify exemption, an overly strict approach is not to be encouraged.

46. For the reasons and in the light of the findings set forth above, I do not propose to give any directions for the conduct of further searches by the respondent or ASIO. This does not, however, prevent the applicant pursuing other requests for access to archival material that may relate to Dr Cairns.