Secretary, Department of Foreign Affairs and Trade v Paul Whittaker

(b) Document 40 - a cable dated 9 March 2001 from an Australian High Commission to the Department attaching a communication received from another government.

(c) Document 43 - a cable dated 21 February 2001 from an Australian High Commission to the Department reporting on a communication received from another government.

(d) Document 44 - a cable dated 20 February 2001 from the Department to an Australian High Commission requesting specific communications be made with another government.'

RELEVANT SCHEME OF THE ACT 6 The Secretary is an agency within the meaning of the Act. Section 11(1) of the Act provides that, subject to the Act, every person has a legally enforceable right to obtain access, in accordance with the Act, to a document of an agency, other than an exempt document. Section 15(1) provides that a person who wishes to obtain access to a document of an agency may request access to the document. Under s 18(1), where a request is made by a person to an agency for access to a document of the agency and any charge that is required to be paid before access is granted has been paid, the person is to be given access to the document in accordance with the Act. However, under s 18(2), an agency is not required by the Act to give access to a document at a time when the document is an exempt document. 7 Relevantly for present purposes, s 33(1) of the Act provides that a document is an exempt document if disclosure of the document under the Act:

• would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth - s 33(1)(a)(iii) (emphasis added); or · would divulge any information or matter communicated in confidence by or on behalf of a foreign government to the government of the Commonwealth - s 33(1)(b) (emphasis added).

The Secretary contends that each of documents 39, 40, 43 and 44 is exempt under the first head and that each of documents 39, 40 and 43 is exempt under the second head.

THE DECISION OF THE TRIBUNAL 8 The Tribunal heard evidence, so far as is presently relevant, from:

• Mr D. O. Chester, a Deputy Secretary of the Department, who has held other appointments, including an appointment as an Australian High Commissioner;
• Ms L. H. Hand, the Chief of Protocol for the Department, who has also held other appointments including as an Australian Ambassador; · Mr G. S. R. Wood, a former Deputy Secretary of the Department of Prime Minister and Cabinet and a former Australian High Commissioner to Canada.

Mr Chester and Ms Hand were called by the Secretary and Mr Wood was called by Mr Whittaker. The Tribunal accepted all of the witnesses as reliable and truthful. 9 As explained by the Tribunal at [29] of its reasons the process of agrément is the diplomatic process by which the government of a sending country arranges for consent of the government of a receiving country to the appointment of a new head of the sending country's diplomatic mission in the receiving country. The process of agrément involves nomination by the sending country and the acceptance of that nomination by the receiving country and communication of that acceptance to the sending country. Such an appointment can only take effect after the receiving country has consented to the person to be appointed as head of mission. Consent may be refused or withheld and no reason need be given. 10 The Tribunal found that, until the appointment of the head of mission is put on the public record, the process of obtaining agrément with the receiving country is conducted on a strictly confidential basis. Communication between governments is through the head of mission in the receiving country, with communication being effected by encrypted cables. The Tribunal also found that it is recognised internationally that the agrément process is, and is expected to be, a process conducted in confidence between the respective governments. The confidentiality of the agrément process is one of the conventions that have to be observed at all times, regardless of what the outcome of the process is. The procedures when Australia is the receiving country are also conducted on a controlled, in-confidence, basis. The Australian practice in relation to agrément is consistent with general international diplomatic practice. 11 In his evidence to the Tribunal, Mr Chester said that there is a long standing practice in the international community that documents of the nature of those under consideration are kept confidential, so that countries can consider, in an unfettered way, the request for a particular person to be appointed as a country's head of mission. The Tribunal found that there is a legitimate concern that release of documents concerning an appointment would bring into question Australia's relationship with other countries, because there would be uncertainty as to whether similar documents, involving other countries, would also be released. The Tribunal found that the release of the documents in question, relating to the possible appointment of Dr Herron to Canada, could cause damage to Australia's international relations with Canada. 12 The Tribunal also found that the documents in question were treated as confidential within the Department, so that only a small number of the Department's officers would have access to them and then only on a need to know basis. The Tribunal also found that, until Prime Ministerial approval is received for a proposed nomination, only four senior officers in the Department are involved in the nomination process. In addition, the Tribunal accepted that there is a reasonable desire to ensure that a nomination is not made known prior to Executive Council approval and that the nomination process proceeds to agrément with the receiving country without public disclosure of the nomination. The Tribunal accepted that the secure arrangements in that regard reflect the high risk of damage to Australia's international relations should the nomination process be compromised. 13 The Tribunal accepted the evidence of Ms Hand that the process of agrément for appointment of heads of mission on behalf of Australia is a controlled, confidential process. Strict procedures are in place to protect the integrity of the process, any leakage or associated public speculation could prejudice an agreement being reached and also raise broader concerns about Australia's management of confidential information. The Tribunal found that, at the time the documents in question were created, they were confidential in character and formed part of a process in which confidentiality was protected at each step in deference to the receiving country and also in deference to the nominee. 14 Mr Wood drew a distinction between the sensitivity of documents during the agrément process and the sensitivity of the same documents after the process has been completed on a positive basis. He considered that documents would remain sensitive if there was a rejection of agrément by a receiving country. However, he said that a receiving government that had agreed to an appointment would be uneasy as to a failure to disclose documents because there could be an inference of possible rejection of the nominee by the receiving government. 15 The Tribunal concluded that it was reasonable to infer that, where a receiving government has agreed to a nominee as head of mission of a sending government, the sending government would, in due course, make public the appointment without seeking a further consent from the receiving government. However, the Tribunal said nothing about making confidential documents public, as distinct from making the appointment public.

DAMAGE TO THE INTERNATIONAL RELATIONS OF THE COMMONWEALTH 16 The Tribunal observed that, under s 33(1)(a)(iii), there must be real and substantial grounds for an expectation that damage would be caused by granting access to a document. The Tribunal observed that the decision of the Secretary under the Act was made without reference to the other governments involved, namely the government of Canada and the government of the United Kingdom (in relation to the appointment to Bermuda). There was, of course, no requirement for the Secretary to refer to either government. 17 The Tribunal accepted the following propositions:

• Damage to international relations might reasonably be expected where the disclosure of a document may disclose sensitive information so as to cause, or reasonably be expected to cause, actual and significant damage.
• The concept of damage is not to be confined and may include damage to intangibles, such as personal relationships between high level officials and politicians.
• There is no public interest test criterion extending beyond the terms of the exemption provision, in that a document is either within the provision or it is not.
• The test is not whether there is a risk of damage to international relations: the test requires a higher degree of certainty of damage.
• The test is to be applied to the documents at the time of decision and not at the time of creation of the documents. The Secretary did not dispute the correctness of any of those propositions. 18 Having stated the propositions, however, the Tribunal simply concluded that the exemption under s 33(1)(a)(iii) was not applicable in the present case. The Tribunal provided no reasoning for that conclusion. 19 As indicated above, the Tribunal found that disclosure of the documents in question couldcause damage to Australia's international relations with Canada. While the Tribunal referred to the proposition that a higher degree of certainty than mere risk of damage is required, the Tribunal did not expressly address the question whether disclosure of the documents in question would, or could reasonably be expected to,cause damage to Australia's international relations with Canada. 20 Rather, the Tribunal referred to an instance where the Secretary had published sensitive communications between the government of Indonesia and the government of Australia in relation to the 1998 offer by Indonesia to grant full autonomy to East Timor. The Tribunal observed that that release of documents, made within three years of the creation of the documents, did not raise issues of damage to the international relations of the Commonwealth, because the documents had ceased to be sensitive. The Tribunal went on to say that the circumstances of East Timor's constitutional relationship with Indonesia had been resolved, at least at the diplomatic level. Thus, it said, the sensitivity had evaporated because of a change of circumstances. That observation, however correct though it may be, has no bearing on the question of whether s 33(1)(a)(iii) of the Act applies in the present circumstances. There was no finding by the Tribunal that any sensitivity of the documents presently in question had evaporated by reason of changed circumstances or by the passage of time. 21 As indicated above, the Tribunal accepted that there is a legitimate concern that disclosure of documents concerning an appointment could bring into question Australia's relationship with other countries. That is because other countries would be concerned about Australia's reliability in maintaining confidence. Mr Wood's evidence, as summarised by the Tribunal, is not entirely clear. Where a receiving country agreed to an appointment that did not proceed, it appears that the receiving country might prefer disclosure to take place in order to avoid an inference that the failure to proceed with the appointment was as a result of rejection by the receiving government. However, Mr Wood does not appear to have made any observation about the attitude of a receiving government to the disclosure of documents after acceptance of a nomination and the appointment of the nominee. 22 It is possible that the Tribunal meant that, while disclosure of the documents could cause damage to Australia's international relations with Canada, it was not satisfied that disclosure of the documents would cause damage or could reasonably be expected to cause damage. Nevertheless, the Tribunal did not deal with the question and did not explain why, even though it was satisfied that the disclosure of the documents could cause damage, it was not satisfied that their disclosure could reasonably be expected to cause damage. For example, the Tribunal did not address whether there is a distinction between when disclosure of documents could cause damage to international relations, on one hand, and when disclosure of documents could reasonably be expected to cause damage to international relations, on the other hand. 23 The reasons for the Tribunal's rejection of the Secretary's contention under this head are entirely unclear. The Tribunal has not given adequate reasons for its conclusion that the documents are not exempt under s 33(1)(a)(iii) of the Act.

INFORMATION OR MATTER COMMUNICATED IN CONFIDENCE 24 In relation to the Secretary's claim under s 33(1)(b), the Tribunal refers at different places to the various possible outcomes of an agrément process:

• "If that agreement [ie. of the receiving government] is not forthcoming…" (at [60])
• "If the agrément process results in the receiving government consenting to the nominee…" (at [61])
• "If the process is successful…" (at [62]) These references suggest to us that the Tribunal intended to draw a distinction between the different times at which the question whether documents are exempt might be considered. Indeed, the Tribunal expressly concluded that "the agrément process having been successful, the cloak of confidentiality ceases to exist because both governments expect that will be the case" (at [63]). 25 The Tribunal's conclusion appears to be that, because the nomination of Dr Herron was accepted by the government of Canada, disclosure of the documents in question would not divulge any information or matter communicated in confidence. That conclusion suggests a misconception. If the disclosure of a document would divulge any information or matter communicated in confidence, by a foreign government to the government of the Commonwealth, that is sufficient to attract the relevant exemption. The fact that the information or matter may no longer be confidential is not to the point. The only question is whether the disclosure of the document would divulge information or matter that had been communicated in confidence. 26 The exemption under s 33(1)(b) may be contrasted, in that respect, with the exemption under s 33(1)(a)(iii). Thus, in relation to the latter exemption, the relevant time for considering damage that might be caused by disclosure is the time at which disclosure is to occur. That is to say, disclosure of a document at the time of its creation might cause damage, but if at the time when access is sought disclosure would not cause damage, the document will not be exempt under s 33(1)(a)(iii). On the other hand, if disclosure of a document, whenever the disclosure is made, would divulge any matter communicated in confidence, the document will be exempt under s 33(1)(b), even if that matter is no longer confidential at the time when access is sought. 27 It remains to mention the distinction the Tribunal sought to make at [59] - [60] and [62] of its reasons. We see no proper basis for maintaining a distinction between the information that is exchanged in the agrément process and the routine process (to use the words of the Tribunal at [60]) of obtaining the agreement of the receiving government which the Tribunal accepted was a confidential process. The so-called routine process, which the Tribunal accepted as confidential must itself involve the exchange of information in confidence. 28 We should also note that it was common ground (although not mentioned in the reasons of the Tribunal) that the appointment of Dr Herron as Australian High Commissioner to Canada did not proceed. 29 The Tribunal appears to have proceeded on a misunderstanding of the requirements of the Act under s 33(1)(b). On the basis of the findings made by the Tribunal, it should have found that documents 39, 40 and 43 are exempt under this head

CONCLUSION 30 The Tribunal has given inadequate reasons for its conclusion in relation to s 33(1)(a)(iii). The claim for exemption under that head extends to all four documents. The Tribunal also erred as to the appropriate test to be applied in relation to s 33(1)(b). The claim for exemption under that head relates only to three of the documents. The Tribunal's decision should be set aside and the matter should be remitted to the Tribunal for reconsideration according to law. Mr Whittaker should pay the Secretary's costs of the appeal. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant: Mr R R S Tracey QC & Ms M Campbell

Solicitor for the Appellant: Australian Government Solicitor