Secretary, Department of Prime Minister and Cabinet v Haneef

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

BETWEEN: SECRETARY, DEPARTMENT OF PRIME MINISTER AND CABINET

1. The application for review be dismissed; and
2. The parties have liberty to apply as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

BETWEEN: SECRETARY, DEPARTMENT OF PRIME MINISTER AND CABINET

BETWEEN: SECRETARY, DEPARTMENT OF PRIME MINISTER AND CABINET

INTRODUCTION 1 These proceedings have their genesis in a freedom of information request (the "FOI request") made by the respondent, Mohamed Haneef, to the Secretary of the Department of Prime Minister and Cabinet (the "Secretary") in June 2008. By that request, the respondent sought access to: (a)ll documents, created or brought into existence, or received by [the Department of Prime Minister and Cabinet], on or after 2 July 2007, to the present date, relating to: 1. the cancellation of [Mr Haneef's] visa subclass 457 Business (long stay) (Class C), which had an expiry date of 30 August 2010; 2. the decision to detain [Mr Haneef], and his ongoing detention; 3. the issue of a Criminal Justice Stay Certificate, or any other Criminal Justice Certificate in relation to [Mr Haneef], and/or any associate criminal justice visa; 4. the making of a residence determination under subdiv.B, Div. 7, Part 2 of the Migration Act, in favour of [Mr Haneef]; 5. communications with other government Departments or agencies, regarding [Mr Haneef]. 2 The Secretary decided that certain documents or parts thereof were exempt from disclosure pursuant to the Freedom of Information Act 1982 (Cth) (the "FOI Act"). The respondent applied to the Administrative Appeals Tribunal (the "Tribunal") for review of the Secretary's decision. 3 On 9 October 2009, the Tribunal granted the respondent access to certain documents or parts thereof and published its reasons (the "original decision"). It stayed its order for a period of 14 days in order to allow the Secretary to take any steps thought appropriate: Mohamed Haneef and Secretary, Department of Prime Minister and Cabinet [2009] AATA 777. Within that 14 day period, for reasons set out below, the Secretary applied to the Tribunal for reconsideration of its decision concerning one document ("document 5"). This application was ultimately refused: Mohamed Haneef and Secretary, Department of Prime Minister and Cabinet [2009] AATA 916 (the "second decision"). Document 5 and a second document ("document 76"), are the only documents which are presently relevant. 4 In proceedings numbered QUD 265 of 2009, the Secretary appealed against the original decision as it concerned Document 76 (the "appeal proceedings"). The appeal was pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act"). In proceedings numbered QUD 300 of 2009 the Secretary sought review of the second decision (concerning only document 5) (the "review proceedings") pursuant to s 39B of the Judiciary Act 1903 (Cth) (the "Judiciary Act"). On 18 December 2009 I granted the Secretary leave to amend the notice of appeal in the appeal proceedings to include an appeal against the original decision as it concerned document 5. Because the position with respect to document 5 is somewhat complicated, I will first consider document 76.

DOCUMENT 76 5 Document 76 is a summary of a conversation between the Head of Mission at the Australian High Commission in India and the Joint Secretary of the Indian Ministry of External Affairs. Section 33(1) of the FOI Act provides as follows: A document is an exempt document if disclosure of the document under this Act: (a) would, or could reasonably be expected to, cause damage to: (i) the security of the Commonwealth; (ii) the defence of the Commonwealth; or (iii) the international relations of the Commonwealth; or (b) would divulge any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth. 6 The Secretary claimed that document 76 was exempt from disclosure, relying on s 33(1)(a)(iii) and s 33(1)(b) of the FOI Act. The focus was upon paras 4, 5, 6, 7 and 8 of the document. The Tribunal decided that pursuant to both provisions, paras 7 and 8 were exempt from disclosure. The Tribunal did not accept that paras 4, 5 and 6 were exempt pursuant to s 33(1)(a)(iii). It then considered the operation of s 33(1)(b) upon those paragraphs, concluding that although the conversation had taken place in private, "that does not mean the material was necessarily communicated in confidence. It is necessary to look at the objective nature of the material in the circumstances in which it was communicated before reaching the conclusion that it was communicated in confidence". The Tribunal then observed, concerning paras 4, 5 and 6 of the document, at paras 168-170 of its reasons: 168. I turn firstly to numbered paragraph four. The first sentence is obviously not communicated in confidence. The second sentence looks as if it was. The third sentence does not appear to be of a confidential nature. The fourth sentence is more sensitive and probably was intended to be confidential. I am satisfied the exemption under s 33(1)(b) should only be available in respect of the second and fourth sentences in that paragraph. 169. I do not see anything in numbered paragraph five that bears the hallmarks of confidentiality. There is nothing embarrassing in the material. For the most part, it is of a general nature. There is no reason to believe it was sensitive information or that it was intended to remain a secret. The exemption should not be available in respect of that material. 170. The material in numbered paragraph six is more complicated. The first and second sentences do not bear the hallmarks of confidentiality. The third sentence is arguably more sensitive; the fourth sentence is only sensitive in so far as it sheds light on what the preceding sentence says. The last two sentences are not obviously sensitive and there is no reason to believe they were communicated in confidence (as opposed to communicated in private). The exemption under s 33(1)(b) should only be available with respect to the third and fourth sentences of paragraph six. 7 The operation of s 33(1)(a)(iii) and s 33(1)(b) had to be determined in the context of an affidavit from Deborah Stokes, a senior officer in the Department of Foreign Affairs and Trade with responsibility for relations with India. Ms Stokes said at para 4 of her affidavit: In the field of inter-governmental relations, it is commonly understood that conversations between diplomats are conducted in private and the contents are presumed to be confidential unless explicitly stated otherwise. Conveying to a third party the contents of such conversations, or to reveal this information publicly, could harm the relationship with the country concerned. It could also reduce the preparedness of diplomats from a range of countries to engage with Australian diplomats as they would be concerned that the contents of conversations would not be protected. It is also the role of diplomats to provide frank judgments about the host government, its policy and its actions. To reveal these judgments could offend the country concerned and create tension in the relationship and limit the preparedness of Australian diplomats to provide frank advice in writing. 8 In that context Ms Stokes asserted, concerning document 76: The ability of the Head of Mission and other officers at the Australian High Commission to hold frank and open discussions with Indian authorities is the result of the good working relationships formed between officers at this level. The fact that discussions of this nature were conducted is itself testament to the cooperative relations being nurtured by officers at the Australian High Commission in New Delhi. The release of this information could prevent such critical communications in the future and effectively destroy the trust and confidence between the two Governments. Paragraphs 4, 5, 6, 7 and 8 also contain information communicated to the Head of Mission in New Delhi by a senior Indian official. In my opinion, based on my knowledge of diplomatic practices as well as familiarity with the Indian environment, it is highly likely that the senior Indian official conveyed this information on the understanding that it would be treated in confidence by the Australian Government. If information of this nature were to be disclosed it is likely to take the Commonwealth's reputation, reduce trust and confidence and the likelihood of foreign governments providing information to Australian officials, both through diplomatic and other channels. 9 As set out above, the Tribunal accepted that at least some of the content of para 4 "looks as if" it was communicated "in confidence". However it considered that para 5 did not bear "the hallmarks of confidentiality", commenting that: There is nothing embarrassing in the materials. For the most part, it is of a general nature. There is no reason to believe that it was sensitive information or that it was intended to remain a secret. The exemption should not be available in respect of that material. 10 As to para 6, the Tribunal took an approach similar to that which it adopted in dealing with para 4. 11 The Tribunal's reasons bespeak an error of law. Section 33(1)(b) protects any information or matter communicated "in confidence". The question of confidence must be resolved as between the communicator and the person to whom the communication is made. It is not a question of determining whether or not individual aspects of the relevant disclosure are of a kind which a third person (in this case, the Tribunal) might wish to keep confidential. Quite apart from the wording of the provision, I doubt whether the Tribunal could know, with any degree of certainty, the views which a senior Indian civil servant or, for that matter, an Australian diplomat might have concerning such matters. The Tribunal has drawn inferences as to whether the parties intended that parts of the conversation be confidential based simply upon his assessment of whether such parts are worthy of being so characterized. Whilst some conversations may proceed upon the basis that parts are confidential and parts are not, there is nothing in the text of this document to suggest that the conversation in question was conducted on that basis. The evidence from Ms Stokes suggests that in her opinion, as an experienced diplomat, and in the Indian context, such a conversation would have been treated by the parties as confidential. In my view that is the question addressed by s 33(1)(b). 12 I am anxious not to infringe upon the Tribunal's fact-finding function. However I am satisfied that the Tribunal, in taking a fragmented approach to the various passages in the memorandum, has failed to appreciate the extent of the protection provided by s 33(1)(b), a protection based upon the understandings of the parties participating in the conversation, rather than the subject matter. Of course it is possible that some conversations may be clearly "unofficial" in subject matter, but this is not such a case. 13 The Tribunal did not reject Ms Stokes' evidence. It rather substituted its own views for hers. It did so in the mistaken view that the protection offered by s 33(1)(b) was limited by subject matter rather than the intention of the parties as to the conversation, a matter regarding which Ms Stokes could speak, based on her experience. 14 In this respect the appeal should be allowed.

DOCUMENT 5 15 Document 5 is an "Information Brief" to the Minister for Immigration and Citizenship. The subject is said to be "National Security Investigation into QLD 457 Visa Holders". The passages in connection with which the Tribunal's decision is challenged are on p 1 of attachment A. That page bears details concerning three persons, one of whom is the present respondent. The passages in question concern the manner in which the Department of Immigration and Citizenship conducts security checks and processes visa applications. The Secretary asserted that document 5 is exempt from disclosure by virtue of the operation of s 33(1)(a)(i). 16 The Tribunal said, concerning this document: 16. Attachment A… includes material in the second dot point of the first two entries (and the third dot point in the third entry), which the respondent says is exempt under s 33(1)(a)(i). That provision deals with material that would (or could be reasonably be expected to) damage the security, defence or international relations of the Commonwealth. Mr Frew's affidavit explains (at [11]) the material is sensitive because it reveals "details of the procedures employed by the intelligence agency, namely the Australian Security and Intelligence Organsiation, concerned to identify visa applicants for screening." I fail to see how the redacted material reveals anything about the procedures. Certainly, it does not reveal anything more than what Mr Frew's open affidavit makes clear; ie, that ASIO is involved in a screening process. Out of an abundance of caution, I would accept that the name of the document to which decision-makers refer (the fifth, sixth and seventh words in the third sentence in the second dot point) should be exempt pursuant to s 33(1)(a)(i) because the name of the document would alert someone to its significance and utility. That would be damaging. 17 On 22 October 2009, following the publication of those reasons, the Australian Government Solicitor wrote to the Tribunal observing that: The respondent respectfully notes that no reference [has been] made to the affidavits (both open and closed) in oral evidence of "Keith Drummond", which, together with Mr Frew's evidence, were expressly relied upon by the respondent. If the Tribunal has not had regard to that material, it is respectively requested that it reconsider and stay the decision in this regard until re-determination takes place. If the Tribunal has had regard to this evidence, in particular the confidential evidence of Mr Drummond, it is requested that reasons be given for not accepting Mr Drummond's evidence, which is the effect of the decision. 18 There was a subsequent hearing by telephone, and written submissions were provided. On 27 November 2009 the Tribunal delivered the second decision. It concluded that its earlier decision was "beyond recall", and indicated that it did not intend to revisit substantive matters. It also indicated that in considering its original decision, it had referred to the confidential affidavit and oral evidence of Mr Drummond and had considered that evidence in conjunction with that of Mr Frew. The Tribunal observed that at the time, it was not persuaded by that evidence as to the entitlement to exemption of the relevant passages. However it said that, having re-read the evidence in the light of the Secretary's request for reconsideration: I have now developed a clearer appreciation of the risk to which Mr Drummond (and, in fairness, Mr Frew) referred. If I were entitled to revisit the decision, I would accept that the claim for exemption under section 33(1)(a)(i) in respect of each of the three sentences was made out. 19 In the appeal proceedings, the Secretary submits that the original decision was manifestly unreasonable and that the Tribunal denied him natural justice, constructively failed to exercise its jurisdiction, failed to give reasons and asked the wrong question. In the review proceedings, it seeks review of the second decision upon the ground that the Tribunal was entitled to revisit the original decision and ought to have done so. 20 I shall first deal with the question of whether the Tribunal was able to revisit the original decision. The High Court considered this question in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. The effect of that case is that a tribunal's power to re-visit a decision will depend upon construction of the relevant legislation, considering, in particular, whether the tribunal has done that which the relevant legislation required it to do. In that case, the relevant tribunal acted without regard to the fact that a party was unable to attend a hearing but wished to do so. Thus the party was denied procedural fairness. That is some distance from the present case in which the parties were heard, the evidence considered and a decision made. Further, the Tribunal's decision concerned many other documents. There is no challenge to its determinations concerning documents other than documents 5 and 76. It may be that the Tribunal misunderstood the evidence or the case which the Secretary sought to make concerning document 5, but that can hardly lead to the conclusion that there has been no exercise of the Tribunal's jurisdiction. In my view the Tribunal correctly concluded that it had no power to re-visit the original decision. In those circumstances, it is unfortunate that the Tribunal chose to cast doubt upon the correctness of its decision. No doubt it was concerned to be totally frank with the parties. In any event, it is not necessary to consider further the correctness of the second decision. 21 The review proceedings should be dismissed. 22 Moving to the appeal proceedings, the grounds of appeal are that the Tribunal fell into at least one of four "errors of law", namely, that it: (a) Did not give proper, genuine or realistic consideration to the evidence; (b) Failed to consider or have regard to relevant evidence or submissions on matters of substance which were capable of affecting the outcome of the case and thereby denied the Applicant natural justice and/or constructively failed to exercise jurisdiction; (c) Failed to give reasons as required by s 43(2B) of the [AAT Act]; or (d) Asked itself the wrong question in relation to the proper construction of s 33(1)(a)(i) of the FOI Act

23 The purported errors of law depend upon the statements of the Tribunal in the two sets of reasons and inferences drawn from those statements. The respondent submits that the second decision merely demonstrated that the Tribunal had a "change of heart", going only to "persuasion and the merits and not to any unlawfulness, either procedural or substantive." 24 However I infer from the two decisions that the Tribunal did not understand the Secretary's submissions in relation to the application of s 33(1)(a)(i) to the three relevant passages. In particular, it did not understand the basis upon which the Secretary asserted that disclosure could reasonably be expected to cause damage to the security of the Commonwealth. This is an error of law of the kind identified by the Full Court in Willcox v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276-7. In that case, it was held that when a submission that was "worthy of serious consideration" and "seriously advanced" was not taken into account, the Tribunal committed an error of law, raising a question of law for the purposes of s 44. I do not accept that the Tribunal merely had a "change of heart". Its silence as to the evidence of Mr Drummond in its first decision and the statement as to its changed view in the second decision suggest strongly that it misunderstood the real thrust of the submission put and so, in truth, did not take it into account. 25 In this respect, the appeal should be allowed.

ORDERS 26 I make the following orders:

1. That the application for review be dismissed;
2. That the appeal be allowed;
3. That the decision of the Tribunal made on 9 October 2009, to the extent dealt with in these reasons, be set aside;
4. That to the same extent the matter be remitted to the Tribunal for further consideration according to law;
5. That the parties have liberty to apply as to costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.