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PRACTICE AND PROCEDURE - freedom of information - application for exercise of powers in the Intelligence and Security jurisdictional area - 'national security information' - respondent says that the document in issue is an exempt document under s 33(a)(i) of the Freedom of Information Act 1982 (Cth) - respondent says that the proceeding would involve national security information and that the Tribunal should exercise discretion under s 134(2) of the Administrative Review Tribunal Act 2024 (Cth) - satisfaction - exercise of discretion - direction made

Administrative Review Tribunal Act 2024 (Cth)

Freedom of Information Act 1982 (Cth)

National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth)

Director, Australian War Memorial and Patrick (Practice and procedure) [2025] ARTA 540

1. The respondent has requested that the President direct under s 134(2) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) that the Tribunal's powers in relation to this proceeding be exercised in the Intelligence and Security jurisdictional area (ISJA). The President has delegated to me his powers under s 134(2) of the ART Act.
2. The applicant opposes the respondent's request. The parties have provided written submissions.
3. The request is to be determined by reference to s 134 of the ART Act:

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

4. As delegate of the President, I have a discretion to direct that the Tribunal's powers in relation to this proceeding are to be exercised in the ISJA. The precondition to the exercise of discretion is that I am satisfied that this proceeding 'would involve national security information.'
5. National security information by definition in s 4(1) of the ART Act has the same meaning as in s 7(1) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act), namely:

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

6. Under s 8 of the NSI Act, 'national security' means Australia's defence, security, international relations or law enforcement interests.
7. It follows that the relevant issue is whether I am satisfied that this proceeding would involve information that relates to national security or information the disclosure of which may affect national security, noting that national security includes Australia's defence, security, international relations and law enforcement interests.
8. 'Law enforcement interests' is defined at s 11 of the NSI Act and relevantly includes interests in:

(a) avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence and security intelligence;

(b) protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence, foreign intelligence or security intelligence;

(c) the protection and safety of informants and of persons associated with informants;

1. The proceedings in the Tribunal are three applications made by the applicant on 17 August 2025 for review of decisions under the Freedom of Information Act 1982 (Cth) (FOI Act) by which the applicant was denied access to the documents he requested. In response to the access request, the respondent has now claimed that the documents in issue are exempt documents pursuant to s 33(a) of the FOI Act which provides:

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:

(iii) the international relations of the Commonwealth.

1. The respondent says that the majority of the documents sought by the applicant concern Australia's national security, international relations and law enforcement interests. The respondent neither confirms nor denies the existence of the documents sought but says in the written submissions dated 16 January 2026 that, should they exist, they would concern law enforcement interests, including criminal intelligence and investigations, the methods and procedures used in respect of those activities or to collect that intelligence, and would relate to the safety of informants or those associated with them.
2. Further, the respondent says in the written submissions that it is extremely likely, if not inevitable, that the evidence and submissions to be presented in the proceedings will involve, 'national security information', at the least because they concern consideration of Australia's law enforcement interests.
3. The respondent is entitled to raise s 33(a) of the FOI Act in the Tribunal proceedings to support its claim that the documents in issue are exempt documents that should not be disclosed to the applicant. The issue for the Tribunal on the substantive application will be whether the disclosure of the document in issue would, or could reasonably be expected to, cause damage to the security, defence or international relations of the Commonwealth.
4. Satisfaction under s 134(2) of the ART Act that the proceeding would involve national security information does not require the respondent to establish that disclosure of the documents in issue would, or could reasonably be expected to, cause damage to the Commonwealth.[1] Section 134(2) is not intended to require satisfaction as to the substantive issue.
5. The applicant contends that the respondent's application is founded on speculation, conditional assertions, and reliance on unidentified future evidence, rather than a demonstrated factual basis that the proceeding would involve national security information.
6. The respondent has not filed any affidavit evidence or given oral evidence in support of its interlocutory application. It is not unusual on an interlocutory application for the Tribunal to inform itself about the facts of the matter from written and oral submissions, correspondence and the T documents. There is no need for formal evidence to be given under oath or on affirmation. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate.[2]
7. The applicant's primary contention is that the respondent has not established the statutory pre-condition that the proceeding would involve national security information.
8. In support of its contention that the proceeding will involve national security information, the respondent states in the written submissions that the evidence likely to be given will involve 'national security information' because it concerns consideration of Australia's law enforcement interests. Further, the respondent states that, if the documents in issue exist, they would concern law enforcement interests including criminal intelligence and investigations.
9. I accept these statements in the submissions from the respondent. There is no reason to reject them. It is hardly surprising, on an application for review in which s 33(a) of the FOI Act is relied upon, that evidence relating to national security will be given. Indeed, it would be open to the Tribunal to infer that on any application in which s 33(a) is relied upon, evidence relating to national security will be given. In this case, no such inference is required because the respondent has advised the Tribunal what evidence will likely be given.
10. It follows that, based on the material before the Tribunal, I am satisfied that the 'proceeding in the Tribunal would involve national security information'. The proceedings involve national security information because evidence relating to law enforcement interests will be given at the hearing. The definition of national security in the NSI Act expressly refers to law enforcement interests. Having satisfied myself in terms of s 134(2) of the ART Act, I would exercise my discretion to direct that the Tribunal's powers in relation to the proceeding are to be exercised in the ISJA. I do so for the purpose of ensuring that national security information is treated appropriately and is not disclosed to the public.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

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Danielle Edwards (Australian Government Solicitor)

[1] Director, Australian War Memorial and Patrick (Practice and procedure) [2025] ARTA 540 at [39].