FEDERAL COURT OF AUSTRALIA

National Archives of Australia v Fernandes [2014] FCAFC 158

THE COURT ORDERS THAT:

1.    Appeal allowed.

2.    The decision of the Administrative Appeals Tribunal made on 30 January 2014 and 3 February 2014, to the extent that it varied the decision of National Archives of Australia in relation to public access to the “first line” (in fact the first two lines, excluding the last word on the second line) of the handwritten text at Part 21 Folio 130 and the first paragraph of Part 21 Folio 133, be set aside and that part of the decision be remitted to the Tribunal for reconsideration according to law.

3.    The applicant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an appeal in the original jurisdiction under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Tribunal constituted by the President concerning documents held by the National Archives of Australia (Archives).

2    The documents with which the Tribunal was concerned broadly concern events in the late 1970s and following years that occurred after Indonesia’s incorporation of East Timor.

3    Dr Fernandes had sought access to documents that are relevant by their nature to his historical research of the period. No question of standing arises.

4    The Tribunal examined the documents in question and concluded that most of the documents were exempt under s 33(1)(a) of the Archives Act 1983 (Cth) that section being in the following terms:

(1)    For the purposes of this Act, a Commonwealth record is an exempt record if it contains information or matter of any of the following kinds:

(a)    information or matter the disclosure of which under this Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth;

5    The Tribunal also came to the view, after examining the documents line-by-line and word-by-word, that part of the documents (being what was referred to as the first line of the handwritten text at part 21, folio 130 - in fact being two lines - and the first paragraph of part 21, folio 133) were not exempt under the Archives Act. That latter finding was a qualification upon the decision of the original decision-maker, Archives, which had found all the documents to be exempt records. The Tribunal, therefore, otherwise affirmed the decision under review of Archives.

6    The material before the Tribunal consisted of open evidence (to which Dr Fernandes and his counsel had access) and closed secret evidence (to which they did not). The matter was heard in open session and in closed session (with the same exclusion of Dr Fernandes and his counsel) and the Tribunal gave its reasons in open reasons and closed reasons.

7    The approach of the Tribunal to the assessment of the documents and their content can be seen in particular at [59] of the open reasons, which was in the following terms:

Before I turn to conclusions that I have reached I should briefly mention the submission put forward by the applicant that the responsibility of the Tribunal is to go through each proposed redaction line by line and word by word. In broad principle, the Tribunal accepts that proposition but it also accepts the qualification urged upon by the Tribunal by Mr Hyland that there will be some instances where it is plain that the whole of the documents falls within one of the exempted classifications, such that the intent of the Act makes plain that the whole of the document would be an exempt record.

8    Parts of the closed reasons reflect the same approach: to examine the document line-by-line to assess whether each line and the document is exempt under s 33(1)(a); see, in particular, [54] and [64]-[74] of the closed reasons.

9    As can be seen from [59] of the open reasons, the Tribunal was led to this approach by the submissions of the parties. This was frankly conceded by Mr Howe, Senior Counsel for Archives, on appeal. If there be an error in the approach, as I think there is, the fact that the parties may have effectively consented to the approach will not, in some cases (and this is one) mean that the decision should not be set aside: see Kuswardana v Minister for Immigration and Ethnic Affairs [1981] FCA 64; 54 FLR 335. Here, for the reasons that follow, it is to be concluded that the Tribunal asked itself the wrong question central to the exercise of power on a subject matter of national importance.

10    It is necessary to examine the Archives Act and, in particular, ss 38, 44, 50A and 51.

38     Access to part of exempt record

Where a record that would otherwise be required to be made available for public access under this Part is an exempt record, the Archives may, where it is reasonably practicable to do so, make arrangements for part of, or a copy of part of, that record to which access could be given without disclosing information or matter by reason of which the record is an exempt record to be made available for public access in accordance with this Part.

44     Powers of Tribunal

(1) Subject to this section, in proceedings under this Division, the Tribunal has, in addition to any other power, the power to review any decision of the Archives upon an application for access to record and to decide any matter in relation to that application that under this Act, could have been or could be decided by the Archives, and any decision of the Tribunal under this section has the same effect as a decision of the Archives.

(2) Where an applicant makes an application under section 43 in respect of a decision of the kind referred to in paragraph (1)(d) of that section, the Tribunal has power to grant access to the record to which the application relates, or to grant access to that record on particular conditions, notwithstanding any determination made by the Director-General under section 37 in relation to that record.

(3) Where, in proceedings before the Tribunal in pursuance of an application under section 43, it is established that a record is an exempt record, the Tribunal does not, except as provided by subsection (7), have power to decide that access is to be granted to the record.

(7) On a review in pursuance of an application to the Tribunal under section 43, the Tribunal may, if it is satisfied that it would be practicable to give access to, or to a copy of, part of an exempt record in a form that would not disclose information or matter by reason of which the record is an exempt record, direct that access be given accordingly.

50A     Inspector-General of Intelligence and Security must be requested to give evidence in certain proceedings

(1)    This section applies in any proceedings before the Tribunal under this Act in relation to a record that is claimed to be an exempt record for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b).

(2)    Before determining that the record is not an exempt record, the Tribunal must request the Inspector-General of Intelligence and Security to appear personally and give evidence on:

(a) the damage that could reasonably be expected to be caused to the security, defence or international relations of the Commonwealth if the record were made available for public access; or

(b) whether it would be reasonable to maintain the confidentiality of information or matter to which both of the following apply by not making the record available for public access:

(i) the information or matter was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity);

(ii) the foreign entity advises the Commonwealth entity that the information or matter is still confidential.

(3)    Before determining that part of, or a copy of part of, the record is to be made available for public access under section 38, the Tribunal must request the Inspector-General to appear personally and give evidence on:

(a) whether making that part, or a copy of that part, of the record available for public access could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth; or

(b) whether it would be reasonable to maintain the confidentiality of information or matter to which both of the following apply by not making that part, or a copy of that part, of the record available for public access:

(i) the information or matter was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the foreign entity) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the Commonwealth entity);

(ii) the foreign entity advises the Commonwealth entity that the information or matter is still confidential.

(4)    Before hearing the evidence of the Inspector-General, the Tribunal must hear any evidence to be given or submissions to be made by or on behalf of:

(a) the Archives; or

(b) the Commonwealth institution of which the record is property.

(5)    The Inspector-General must comply with a request under subsection (2) or (3) unless, in the opinion of the Inspector-General, the Inspector-General is not appropriately qualified to give evidence on the matters in relation to which the Inspector-General has been requested to give evidence.

(6)    For the purposes of enabling the Inspector-General to comply with a request under subsection (2) or (3):

(a) the Tribunal must allow the Inspector-General to take possession of, and make copies of or take extracts from, any record given to the Tribunal for the purposes of the proceeding; and

(b) the Inspector-General may require the production of the record that is claimed to be an exempt record for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b); and

(c) the Inspector-General may require the production of any Commonwealth record that relates to the record mentioned in paragraph (b); and

(d) the Inspector-General may make copies of, or take extracts, from the records mentioned in paragraphs (b) and (c); and

(e) after such period as is reasonably necessary for the purposes of giving evidence to the Tribunal, the Inspector-General must:

(i) return the original of any record to the Tribunal or to the entity that produced the record; and

(ii) destroy any copies of or extracts taken from any record.

(7) The Inspector-General must permit a person who would be entitled to inspect a record mentioned in paragraphs (6)(a) to (d) if it were not in the possession of the Inspector-General to inspect the record at all reasonable times as the person would be so entitled.

(8)    The Tribunal is not bound by any opinion of the Inspector-General expressed while giving evidence under this section.

(9)    The Tribunal must allow the Inspector-General a period within which to consider the records mentioned in paragraphs (6)(a) to (d) that is reasonable having regard to:

(a) the nature of the evidence that the Inspector-General has been requested to give; and

(b) the time required by the Inspector-General to perform the Inspector-General’s other functions.

(10)    The fact that a person is obliged to produce a document under subsection (6) does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that document.

51     Onus

In proceedings before the Tribunal in pursuance of an application under section 43:

(a) the Archives has the onus of establishing that a decision given by the Archives was justified or that the Tribunal should give a decision adverse to the applicant; and

(b) the Tribunal is not restricted by any determination made at any time under section 35.

11    Section 38 was not directly engaged because Archives came to the view that all the documents were exempt in whole.

12    The Tribunal, on review, was bound to consider the matter for itself, as it did. Section 44(7) (a section concerned with power) allows the Tribunal to give access to part of the document on the same grounds as Archives can under s 38, “not disclose” (s 44(7)); “without disclosing” (s 38); “information or matter by reason of which the record is an exempt record” (ss 38 and 44(7)).

13    Thus, once a document has been examined and the Tribunal is of the view that at least part of the document is exempt and so the record is exempt, but that some other part of it may not be controversial, the question becomes that to which ss 44(7) and 38 are directed, not simply a continuation of the line-by-line analysis for an evaluation by reference to s 33(1)(a).

14    In these circumstances, s 50A(3) is engaged. That provision refers in the chapeau to the Tribunal making documents available under s 38. That reference can be taken to be to the combined operations of ss 38 and 44(7) in that, when the Tribunal is exercising power under s 44(7), it is standing in the shoes of Archives in the exercise of its power under s 38. The two sources of power are equivalent.

15    Looked at thus, the Tribunal was obliged to direct itself to the question in s 44(7) and to request the Inspector-General to appear personally and give evidence on the matters in s 50A(3)(a) and (b). I note parenthetically that the subject matter in para (a) of s 50(3)(a) is expressed in terms of the content of s 33(1)(a), not s 44(7) or s 38. That curiosity does not, however, detract from the central importance of addressing the correct question under ss 44(7) and 38. It may simply reflect the cognate nature of the subject matter of the questions under ss 33(1)(a) and 44(7) or s 38.

16    There was evidence from the Inspector-General as to the first paragraph of part 21, folio 133, but not the so-called first line (being two lines) of the handwritten text at part 21, folio 130. Thus, in part, s 50A(3) was complied with, at least substantively. Nevertheless, the approach of the Tribunal was not to consider whether, on that evidence (and all the other evidence), it was satisfied that part of the document could be made available in a form that would not disclose information or matter by reason of which the record is an exempt record, but, rather, to assess whether that part fell within s 33(1)(a). The two questions are different, subtly but importantly. Not being persuaded that disclosure could reasonably be expected to cause damage of the kind in s 33(1)(a), is not the same as being satisfied that making available part of a record will not disclose information or matter by reason of which the record is exempt.

17    This is made plain when one examines the closed evidence, especially at closed transcript 29 January 2014 at p 99, line 40 to p 100, line 10 and p 107, lines 16 and following, and p 109, and closed transcript of 3 February 2014 at pp 202-208, 210 and 226. There, evidence was given that had a degree of equivocation. That equivocation may well be sufficient to lead the Tribunal to the view that it was not persuaded of the matters in s 33(1)(a). The same evidence, however, may be the foundation for a view that the Tribunal could not be satisfied of the matters in s 44(7).

18    I express no view on the answer or outcome to the correct question being asked. That is not a matter for this Court. What is clear, however, is that the Tribunal did not direct itself to s 44(3) and (7). This is plain from the open and closed reasons and the open and closed evidence. In another case on another subject matter, this may have been a case where the Court, exercising its original jurisdiction, may have engaged in a degree of fact finding permitted under the Administrative Appeals Tribunal Act to obviate any further costs to the parties. Given the subject matter of this proceeding, it is appropriate that the executive, not the judiciary, make factual findings in relation to the subject matter of the documents.

19    In fairness to the learned President, the error that, in my respectful view, appears was the product of how the matter was argued, especially, if I may respectfully say so, by Archives. Also, it may, in part, have been a product of the burden taken on by the Tribunal in acting to the extent appropriate as a contradictor.

20    For the above reasons, in my view, the decision of the Tribunal made on 30 January 2014 and 3 February 2014, to the extent that it varied the decision of Archives in relation to public access to the “first line” (in fact the first two lines, excluding the last word on the second line) of the handwritten text at Part 21 Folio 130 and the first paragraph of Part 21 Folio 133, should be set aside and that part of the decision should be remitted to the Tribunal for reconsideration according to law

21    The Tribunal should not take it from these reasons that the Court is imposing on it any restriction on what evidence is able to be led by the parties. That is a matter for the Tribunal. Though it may be entirely unnecessary to say it, for the avoidance of any doubt, there appears to me to be no reason, and none was put to us, as to why the Tribunal, on remitter, should not be constituted by the learned President once again.

22    Dr Fernandes has been unsuccessful in the appeal on a point raised in an amendment only last week. If the matter had been addressed in accordance with the above views before the learned President, the appeal may not have been necessary. In those circumstances, it is just, in my view, that Dr Fernandes have his costs of the appeal. In the first instance, that may be satisfied by having a certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) for his costs of the appeal. Section 18 of that Act, however, restricts the amount he is to receive to the prescribed amount, which Mr Latham indicates is, at present, $3000. It may be a matter for adjustment between different parts of the one branch of government, but, in my view, the simplest way to deal with this is to simply order that the applicant pay the respondent’s costs of the appeal.

23    For those reasons, the orders I would make are as I have identified.

FLICK J:

24    Concurrence is expressed with the reasons and conclusions of the Chief Justice and the orders proposed.

WIGNEY J:

25    I agree with the orders proposed by the Chief Justice. I also agree with the Chief Justice’s reasons.

ALLSOP CJ:

26    The orders of the Court are as follows:

     1.    The appeal be allowed.

     2.    The decision of the Administrative Appeals Tribunal made on 30 January 2014 and 3 February 2014, to the extent that it varied the decision of National Archives of Australia in relation to public access to the “first line” (in fact the first two lines, excluding the last word on the second line) of the handwritten text at Part 21 Folio 130 and the first paragraph of Part 21 Folio 133, be set aside and that part of the decision be remitted to the Tribunal for reconsideration according to law.

     3.    The applicant pay the respondent’s costs of the appeal.

Associate:

Dated:    17 November 2014