FEDERAL COURT OF AUSTRALIA

Bachelard v Australian Federal Police [2025] FCAFC 5

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Administrative Review Tribunal (differently constituted) to be determined in accordance with the law.

3.    The respondent pay the applicant’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

WIGNEY J:

1    The applicant, Mr Michael Bachelard, is a journalist. He requested the respondent, the Australian Federal Police (AFP), to give him access to certain documents pursuant to s 15 of the Freedom of Information Act 1982 (Cth) (FOI Act). The documents specified in the request were statements of three identified persons and a report by “AFP professional standards” in respect of an identified subject-matter. The AFP identified four documents that fell within the scope of the request, however a delegate of the AFP decided to refuse access to all four documents in full on various grounds.

2    After unsuccessfully pursuing an internal review and a review by the Australian Information Commissioner, Mr Bachelard applied to the then Administrative Appeals Tribunal for a review of the AFP’s decision. The Tribunal affirmed the AFP’s decision to refuse access to the requested documents on various grounds, including that: the documents would disclose, or enable a person to ascertain, the existence or identity of a “confidential source of information … in relation to the enforcement or administration of the law” and were therefore exempt documents pursuant to s 37(1)(b) of the FOI Act; disclosure of the documents would, or could reasonably be expected to have “a substantial adverse effect on the management or assessment of personnel” by the AFP, or have a “substantial adverse effect on the proper and efficient conduct of the operations” of the AFP, and were therefore conditionally exempt pursuant to s 47E(c) and (d) of the FOI Act; disclosure of the documents would involve the “unreasonable disclosure of personal information about any person” and were therefore conditionally exempt pursuant to s 47F(1) of the FOI Act; and, in respect of the documents said to be conditionally exempt, access to the documents would, on balance, be contrary to the public interest pursuant to s 11A(5) of the FOI Act.

3    Mr Bachelard appealed to this Court from the Tribunal’s decision on a question of law pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). He identified several questions of law and contended that the Tribunal made several errors of law.

4    The reasons for judgment of McDonald J comprehensively address the procedural history of the matter, the facts and evidence before the Tribunal, the Tribunal’s reasons for judgment, Mr Bachelard’s grounds of appeal, and the parties’ respective submissions. I gratefully adopt what his Honour has written in that regard. It is unnecessary to add to it. I agree with McDonald J that the Tribunal erred in law in affirming the AFP’s decision, that Mr Bachelard’s appeal should be allowed, that the Tribunal’s decision should be set aside, and that the matter should be remitted to the Administrative Review Tribunal to be determined in accordance with law.

5    I also substantially agree with McDonald J’s reasons for arriving at those conclusions. I propose, however, to provide some short additional reasons in respect of Mr Bachelard’s first ground of appeal, which concerns the Tribunal’s finding that the requested documents were exempt documents because their disclosure would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement or administration of the law. In my view, the Tribunal’s reasons for finding that disclosure of the documents would disclose the identity of confidential sources of information reveal that the Tribunal misconstrued the expression “confidential source of information” in s 37(1)(b) of the FOI Act and asked itself the wrong question in addressing whether the documents were exempt documents pursuant to that provision.

6    The expression “confidential source of information” in s 37(1)(b) of the FOI Act has typically been construed consistently with the principles applicable to the public interest immunity that attaches to information that would reveal the identity of confidential police (or other law enforcement agency) informants. That species of public interest immunity has been recognised in many cases since Marks v Beyfus (1890) 25 QBD 494: see Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674. The rationale for the immunity is that, if the police or other law enforcement agencies could be compelled to reveal the identity of confidential informers, “sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime”: Stuart at 674-675.

7    In Re Croom v Accident Compensation Commission (1989) 3 VAR 441 at 459, the President of the Victorian Administrative Appeals Tribunal (Judge Jones) at the time noted, in respect of the provision in the Freedom of Information Act 1982 (Vic) which was in relevantly the same terms as s 37(1)(b) of the FOI Act, that the provision was “analogous to that aspect of the law of public interest privilege in litigation which embraces statements made by informers to the police or to other governmental or non-governmental bodies” and was “designed to protect the identity of the informer”. The President also noted that what is “at the heart of the exemption is the protection of the informer not the subject matter of the communication”. The President concluded, among other things, that statements which various people had provided to an investigator were not confidential sources of information because “the statements did not result from an undertaking that they would be kept confidential and only provided on that basis” (at 459).

8    An appeal from the President’s decision was dismissed by the Supreme Court of Victoria. Justice O’Bryan, with whom Young CJ and Vincent J agreed, held that it was “clearly open to the tribunal to arrive at the finding that the evidence did not disclose that any witness provided information in confidence”: Accident Compensation Commission v Croom [1991] 2 VR 322 at 329. His Honour went on to observe that the “plain meaning one might ascribe to [the relevant provision] is that it is concerned with protection of the ‘informer’ and not with the protection of a potential witness who would prefer not to be identified”. His Honour emphasised in that regard that “[p]ublic interest has dictated for a long time the need to protect the true ‘informer’ but a reluctant witness has never attracted immunity at common law” and that “the words ‘confidential source of information’ do not apply to a potential witness in a civil proceeding who would prefer to remain anonymous for the time being”.

9    In Jorgensen v Australian Securities and Investments Commission (2004) 208 ALR 73; [2004] FCA 143, Weinberg J similarly observed (at [66]) that s 37(1)(b) “protects the position of confidential informants in relation to the enforcement of the law”.

10    In Department of Health v Jephcott (1985) 8 FCR 85; [1985] FCA 536, Forster J (at 89) adopted the interpretation of the expression “confidential source” in a decision of the United States District Court in Luzaich v United States 435 F Supp 31 (D Minn 1977) at 35, which was that “a source is confidential if the information was provided under an express or implied pledge of confidentiality”. His Honour went on to note that “[n]o doubt the main reason for protecting the identity of informants is to encourage them and others like them to give information, or at least not to discourage them from doing so, in order to assist the enforcement or the administration of the law”. Keely J held (at 90) that “a confidential source of information” in s 37(1)(b) of the FOI Act “means a person who has supplied information on the understanding, express or implied, that his or her identity will remain confidential”.

11    It may be noted that the meaning that has been given to the expression “confidential source of information” in s 37(1)(b) of the FOI Act, and cognate provisions in other legislation, essentially focusses on the position of the informer and the circumstances in which he or she provided information to the law enforcement authorities. In particular, the focus is on whether the informer or source provided the information subject to, or as a consequence of, an assurance or undertaking given by the law enforcement authority that their identity would remain confidential and not be revealed, or at least an understanding from the circumstances in which the information was provided that the law enforcement authority would not disclose their identity. The rationale for the protection afforded to information that would tend to reveal the confidential source’s identity is that people in a like position to the source may be reluctant to provide information to the authorities if, despite having been given such an assurance or undertaking, law enforcement authorities may nonetheless be compelled to disclose information that would reveal the identity of the source.

12    Three other points should be noted about the meaning to be given to the expression “confidential source of information” in this context.

13    First, the protection that is afforded is in respect of information that would reveal the identity of the confidential source of information, not in respect of the information provided to the authorities by the source.

14    Second, in determining whether a person is or was a confidential source of information, the focus is not so much on the position of the recipient of the information - the relevant law enforcement authority - and how it intended or was required to treat or deal with the information from the source. In particular, the question is not whether the recipient of the information unilaterally considered that the information it received from the source should remain confidential, or considered that the identity of the source should remain confidential, or had a practice of treating such information as confidential information, or was required by statute or otherwise to keep such information confidential. A source does not become a confidential source simply because the recipient of the information decided or was required to treat the information received from the source, including their identity, as being confidential. Rather, the focus of the assessment is on the position of the informer, and the circumstances and basis upon which they provided information to the authorities. Did the source provide the information under an express or implied assurance or undertaking that their identity would remain confidential, or on the understanding gleaned from the circumstances in which the information was provided that the law enforcement agency would not disclose their identity?

15    Third, the exemption is concerned with the protection of informers, not with mere reluctant witnesses who would prefer to remain anonymous until they were required to give evidence.

16    The Tribunal’s reasons for finding that the disclosure of the four documents in question would, or could reasonably be expected to, disclose or enable a person to ascertain the existence or identity of a confidential source, focussed entirely, or almost entirely, on the position of the AFP as the recipient of information from a source or sources, and on the nature of that information. In particular, the Tribunal’s reasons focussed entirely, or almost entirely, on the fact that AFP officers, employees and appointees are subject to broad secrecy provisions that, in general terms, prohibit them from divulging or communicating any information received by them in the course of their duties, except where the information is divulged or communicated for particular purposes relating to the execution of their duties.

17    For instance, at [36] of its Decision and Reasons for Decision dated 29 February 2024, the Tribunal observed that “[t]here is a general secrecy provision in s 60A of the AFP Act [the Australian Federal Police Act 1979 (Cth) – AFP Act] that prohibits relevant AFP personnel from divulging or communicating any information obtained in the course of carrying out, performing or exercising a duty, function or power under the AFP Act”. The Tribunal similarly noted that there was a “more specific confidentiality obligation” in the AFP Commissioner’s Order on professional standards, the effect of which was said to be that “any information obtained when investigating or managing a complaint must be treated in confidence”: Reasons at [36]. The Tribunal concluded that the “express statutory obligation of confidentiality” - which was presumably a reference to s 60A of the AFP Act - extended to “the identity of those who provided the three statements”: Reasons at [37].

18    The Tribunal did briefly refer to the evidence which had been relied on by the AFP in support of its objection to disclosure, being an affidavit sworn by a senior AFP officer, Commander Jason Kennedy. That evidence was said by the Tribunal to establish that the three statements “are confidential and have not been publicly disclosed” and that the AFP “at all times has treated its sources as confidential and has not disclosed them”: Reasons at [38]. The assertions of Commander Kennedy which were identified and relied on by the Tribunal focussed almost entirely on the confidentiality of the statements from the AFP’s perspective. The statements were said to be confidential because the AFP had treated them as such and had not disclosed them.

19    Commander Kennedy’s affidavit did not include any evidence, or any clear or unequivocal evidence, about the precise circumstances in which the information in the three statements was provided to the AFP. In particular, Commander Kennedy’s affidavit contained no evidence, or no clear and unequivocal evidence, to the effect that the sources provided the information in the statements subject to, or because they had been given, an assurance or understanding that their identities would remain confidential. Nor did Commander Kennedy’s affidavit contain any clear or unequivocal evidence to the effect that the circumstances in which the information was provided were such that the sources had cause to understand or believe that their identities would always remain confidential. The high point of Commander Kennedy’s evidence concerning the circumstances in which the source or sources provided the information in the statements to the AFP was a bare assertion (in paragraph 26c. of his affidavit) that the “information provided was obtained in confidence”. Even that assertion appeared to focus on the obtaining of the information from the AFP’s perspective. The information was said to have been obtained by the AFP in confidence. It was not said to have been provided by the source in confidence, or on the basis of an express or implied assurance or undertaking by the AFP that the information would at all times be treated confidentially.

20    In its reasons, the Tribunal stated that Commander Kennedy’s assertion that the three statements were confidential was “consistent with the position expressed by the statement providers who did not consent to disclosure”: Reasons at [38]. The evidentiary basis for that statement is at best unclear. There does not appear to have been any evidence before the Tribunal to the effect that the persons who provided the statements had indicated, at the time they provided the statements, that they did not consent to the disclosure of their statements because they did not consent to their identities being revealed. Commander Kennedy’s affidavit does not include any evidence to that effect.

21    During the Tribunal hearing, the AFP’s legal representative informed the Tribunal, somewhat obliquely, that certain individuals had been consulted pursuant to s 27A of the FOI Act, and that those individuals had responded that they did not consent to the disclosure of their information. The Tribunal was referred in that context to redacted copies of those responses that were apparently included in the “T” documents that were before the Tribunal, as well as unredacted copies that were also apparently included in the confidential “CT” documents that were before the Tribunal. There was an equally oblique reference to that topic in the AFP’s confidential statement of facts, issues and contentions. If that was the source of the Tribunal’s finding (at Reasons [38]) that the statement providers did not consent to the disclosure of their statements, the Tribunal erred in having regard to that material in determining whether the statement providers were a “confidential source of information” for the purposes of s 37(1)(b) of the FOI Act. Responses that the AFP may have received as part of the consultation procedure in s 27A of the FOI Act may have been relevant to the application of the personal privacy conditional exemption under s 47F of the FOI Act. It is, however, difficult to see how those responses could be relevant to the question whether the sources were, or considered themselves to be, confidential sources for the purposes of s 37(1)(b) of the FOI Act.

22    The Tribunal’s reasons in my view reveal that the Tribunal misconstrued s 37(1)(b) of the FOI Act and asked itself the wrong question. The Tribunal did not consider, or ask itself, whether the person or persons who provided the information recorded in the three statements were “confidential sources of information” for the purposes of s 37(1)(b) of the FOI Act because they provided the information subject to, or as a consequence of, an express or implied assurance or undertaking that their identities would remain confidential and not be revealed, or because they understood from the circumstances in which they provided the information that their identities would not be revealed. Indeed, the Tribunal gave little, if any attention, to the circumstances of the sources and the basis upon which they provided information to the AFP. Rather, the Tribunal focussed entirely, or almost entirely, on the position of the AFP and reasoned, in effect, that because AFP officers and employees are bound by general secrecy obligations, it must follow that all information provided to the AFP during an inquiry is provided in confidence, and therefore all the sources of that information are confidential sources. In so reasoning, the Tribunal effectively construed the expression “confidential source of information” as covering all information provided to the AFP which is subject to the general secrecy obligations in s 60A of the AFP Act. In my view that is an overly broad and erroneous construction of the expression.

23    The mere fact that AFP officers and employees are bound by the secrecy obligations in s 60A of the AFP Act in my view cannot alone support a finding that the source or sources of the information in the three statements were or are confidential sources for the purposes of s 37(1)(b) of the FOI Act. If that were the case, every person who provided information to the AFP during an AFP investigation would be a confidential source, even if the person provided the information willingly and openly and without any understanding, or assurance from the AFP, that their identity would not be disclosed. It is difficult to see how a person who provided information to the AFP could be said to be a confidential source simply because the AFP officer or employee to whom the information was provided was bound by general secrecy obligations, even if the source was unconcerned about whether their identity could or would be disclosed.

24    I should perhaps emphasise that I do not suggest that the fact that a person provided information to the AFP during, or for the purposes of, an AFP investigation, including an investigation under Pt V of the AFP Act, is irrelevant to the question whether the person who provided the information was or was not a confidential source. That is a circumstance that may, in conjunction with other circumstantial evidence, support an inference that the person provided the information on the understanding that his or her identity would remain confidential and would not be disclosed by the AFP. The point is that the fact that the information was provided in circumstances which engaged the general secrecy provision in s 60A of the AFP Act, or any similar general secrecy provision, would be unlikely alone to support that inference. The same can be said concerning the circumstance that the AFP considered the information to be confidential when it was received.

25    I should finally note that I also agree with McDonald J that the Tribunal’s reasons for finding that disclosure of the documents in question would disclose the identity of confidential sources of information were based on a misunderstanding of s 60A of the AFP Act. Most significantly, the Tribunal appears to have proceeded on the basis that s 60A of the AFP Act effectively precluded the AFP, or its members or officers, from disclosing the three statements, and therefore the identity of the person or persons who provided those statements, in any circumstances. As McDonald J has pointed out, however, the general prohibition in s 60A of the AFP Act in respect of the divulging or communication of information obtained by an AFP officer or employee in the course of their duties is subject to several exceptions. Perhaps most significantly, an AFP officer or member is not prohibited from divulging or communicating information in carrying out, performing or exercising their duties, functions or power under, inter alia, the AFP Act. It follows that an AFP officer or member would not be prohibited from disclosing the contents of the three statements in question in this matter, and therefore the identity of the source or sources of the information in those statements, if that disclosure occurred in the performance or exercise of the officer or member’s duties, functions or powers under the AFP Act.

26    A simple example is capable of both demonstrating the far-reaching scope of that exception and why the general secrecy provision in s 60A of the AFP Act cannot alone provide a proper basis for a finding that a person who provided information to the AFP was necessarily a confidential source for the purposes of s 37(1)(b) of the FOI Act. There could be little doubt that, if the outcome of the relevant AFP professional standards inquiry had been that a person was charged with an offence, or became the subject of some disciplinary or civil proceeding, s 60A of the AFP Act would not preclude any officer or employee of the AFP from disclosing the contents of the three statements for the purposes of that prosecution or other proceeding. The disclosure of the statements in those circumstances would be permitted because the disclosure would be for the purpose of the performance or exercise of the officer or member’s duties, functions or powers.

27    It is also highly likely that a person who provided a statement to the AFP for the purposes of an investigation or inquiry (including an investigation or inquiry pursuant to Pt V of the AFP Act concerning professional standards and AFP conduct and practice issues) would be aware that the AFP would be permitted, if not required, to disclose the statement (and therefore the person’s identity) if the investigation or inquiry resulted in court or other curial proceedings. It is, in those circumstances, difficult to see how a person who provided a statement to the AFP during an investigation or inquiry could be said to be a confidential source simply because of the general secrecy obligations in s 60A of the AFP Act.

28    A similar point was made in Re Croom. In that case, the respondent claimed, among other things, that an investigator’s report was an exempt document under the equivalent Victorian legislation on the basis that disclosure of the report would reveal the identity of confidential sources of information, namely persons who had provided statements to an investigator who had been retained by an insurance company that was disputing the applicant’s insurance or workers compensation claims. The investigator had told the people who made the statements that he would do his best to keep the statements confidential. In the Victorian Administrative Appeals Tribunal, the President found that the people who provided the statements were not “confidential sources of information”. The President’s reasoning included the following (at 460):

The reality is that the people interviewed by [the investigator] were potential witnesses at a hearing in a court or before the Tribunal or body dealing with workers compensation. In my view, they would be likely to realise this and that, notwithstanding the statements by [the investigator] about confidentiality, the information they provide might ultimately become public through some formal process. Indeed, that could easily occur through the tender of the report in proceedings before the ACT [Accident Compensation Tribunal], which is a relatively common occurrence.

29    As noted earlier, the President’s decision was upheld on appeal by the Supreme Court of Victoria in Croom. The statements by O’Bryan J, referred to earlier, to the effect that the provision in the relevant Victorian legislation equivalent to s 37(1)(b) was not concerned with the “protection of a potential witness who would prefer not to be identified” may be taken to be a reference to that aspect of the President’s reasoning.

30    For the above reasons, and for the reasons given by McDonald J, I would conclude that the Tribunal misconstrued s 37(1)(b) of the FOI Act and erred in law in concluding, for the reasons it gave, that the four documents in question were exempt documents by reason of that provision.

31    As noted earlier, I substantially agree with McDonald J’s reasoning in respect of all the other grounds of appeal. It is unnecessary for me to add anything in respect of the other grounds of appeal. I agree with McDonald J’s conclusions in respect of the other grounds of appeal and with the orders proposed by his Honour.

Associate:

Dated:    3 February 2025

REASONS FOR JUDGMENT

THAWLEY J:

32    I agree with the orders proposed by McDonald J and with his Honour’s reasons for those orders. I write only to add some observations in relation to Ground 1, concerning s 37(1)(b) of the Freedom of Information Act 1982 (Cth) (FOI Act).

33    The FOI Act creates a legally enforceable right to access an agency’s documents, other than exempt documents, on request – see: ss 11, 11A and 15. The principal purpose of s 37(1)(b) is to exempt documents from the right to access, where the granting of access to the document could reasonably be expected to disclose, or enable a person to ascertain, the existence or identity (or the non-existence) of a confidential source of information in relation to the enforcement or administration of the law.

34    The exemption is intended to preserve the anonymity of people who are confidential sources of information in relation to the enforcement or administration of the law. The exemption in s 37(1)(b) is not intended to protect reluctant witnesses or to provide a temporary protection from disclosure of the existence or identity of witnesses who are to be called at a hearing: Accident Compensation Commission v Croom [1991] 2 VR 322 at 329.

35    For the exemption to apply: (a) the information supplied must be information provided in relation to the enforcement or administration of the law; and (b) the person who supplied that information must have done so on the basis that the recipient of the information was obliged to keep the person’s identity confidential.

36    The obligation to maintain confidentiality can be express or implied: Department of Health v Jephcott (1985) 8 FCR 85, 89, 90 and 91; [1985] FCA 536. It may be inferred from the nature and content of the document and the circumstances in which the information was supplied: Jephcott at 89. The circumstances in which the information was supplied in the present case included that the information was supplied in the context of an investigation under Part V of the Australian Federal Police Act 1979 (Cth) (AFP Act). The statutory regime, including s 60A of the AFP Act, forms a part of the context relevant to determining what inference should be drawn about confidentiality, as do the practices of the Australian Federal Police (AFP) (see Jephcott at 89), particularly those known to or adopted by those persons who supplied information within the scope of s 37(1)(b).

37    The obligation of confidentiality must exist with respect to the existence or identity of the source of the information. The existence of an obligation of confidentiality with respect to the information provided is not a requirement for s 37(1)(b) to be engaged. However, the existence (or otherwise) of an obligation of confidentiality with respect to the information provided can inform a conclusion about whether there was an obligation of confidentiality in relation to the identity of the source of information. The Administrative Appeals Tribunal proceeded on that basis – see: T[32], [37]. The Tribunal’s consideration of whether the information provided was confidential was both relevant and material to a decision about whether the person who supplied the information did so on the basis that the recipient of the information was obliged to keep the person’s identity confidential.

38    It might be that a member of the public providing information to police officers responsible for investigating possible police corruption or misconduct would assume that the person’s identity as the source of the information would be kept confidential – see, for example, the observations of the President of the Victorian Civil and Administrative Tribunal in XYZ v Victoria Police (2010) 33 VAR 1; [2010] VCAT 255 at [156] and [157] (Bell J). Members of the public might well be reluctant to provide information in relation to corruption or misconduct unless the person thought that the person’s identity would be kept confidential. That may not necessarily always be the case.

39    It might also be that a police officer providing information about police corruption or misconduct for the purposes of an investigation into corruption or misconduct might have the understanding that the officer’s identity would be kept confidential. There are several reasons why this might be so, including the potential (or, where applicable, obvious) prejudice to an investigation and the willingness of police officers to participate should their identity be capable of disclosure. The fact that an officer might later be prepared to give evidence should a decision be made to take some formal action, such as prosecution, does not necessarily answer the question whether the officer provided the information as a confidential source at the time the information was provided.

40    In the absence of direct evidence about the officer’s understanding as to whether the officer’s identity would be kept confidential, the question is whether such an inference should be drawn having regard to the absence of direct evidence on the topic, the context, and the facts and circumstances as established by the material before the Tribunal. Some matters which might be relevant to drawing such an inference in any given case include:

    whether the investigation is likely to have been prejudiced if the source was not kept confidential;

    whether the practices and procedures of the agency were to keep the source of information confidential;

    whether those practices and procedures were known to or (where relevant) were adopted by the person providing the information;

    the reasonably expected risks or consequences to the person should their identity as a source of information come to the knowledge of others.

41    Before the Tribunal, the AFP adopted the usual course of providing both “open” and “confidential” information to the Tribunal for the purposes of determining the issues which arose on the review.

42    Commander Kennedy swore an “open” affidavit for the purposes of the Tribunal’s review. This affidavit focussed on Part V investigations generally and not in any detail about the particular circumstances in which the three statements had been obtained.

43    His affidavit included:

1.    I hold the position of Commander Professional Standards for the Australian Federal Police (AFP). I have held this position for 3 years having been appointed in 2020. I have been a sworn member of the AFP since 1994 and have been involved in various operational matters …

…

3.    The AFP’s Professional Standards Investigation Unit (PRS) investigates and makes findings in relation to AFP appointee’s breaches of the AFP code of conduct, and potentially run concurrent investigations if allegations rise to a level of criminal culpability. Investigations into allegations of misconduct by AFP appointees are conducted in accordance with Part V of the Australian Federal Police Act 1979 (Cth) (AFP Act).

4.     The confidentiality of PRS investigations is generally reflected in the structure of the Command itself, it’s [sic] systems and the protections afforded by the AFP Integrity Framework:

a.     The AFP Act, and in particular Part V of that Act, which establishes the legal processes and procedures by which AFP conduct and practice issues are to be dealt with;

b.     the Australian Federal Police Regulations 2018 (Cth) (AFP Regulations), and in particular Parts 2 and 3 of those Regulations, which deal with specific matters relevant to integrity issues;

c.    the Australian Federal Police Categories of Conduct Determination 2023 (Cth). This document sets out the types of conduct that fall within the three categories of conduct (categories 1, 2 and 3) prescribed in the AFP Act;

d.    The AFP Commissioner’s Order on professional standards (known as ‘C02’) … C02 was first introduced on 2 February 2004; and

e.    The AFP National Guideline on complaint management and grievance resolution (National Guideline) … The National Guideline was first introduced on 30 December 2006.

5.     PRS is in many ways separate from the other areas and commands within the AFP. The AFP operates its systems and document storage generally through the PROMIS platform. However, PRS has a separate and self-contained platform known as PROMIS Integrity, which is only accessible by members of PRS and the Security Command. Access to PROMIS Integrity is limited within PRS on the basis of role and need. In addition, members of PRS can only access information on a ‘need to know’ basis.

…

7.     The confidentiality of information obtained by and for the purposes of PRS investigations is foundational and essential to the effective operation of the Command.

8.    The Part V process is the primary way in which the AFP identifies and investigates allegations of misconduct by its appointees. Appointees hold a trusted position in the community and the integrity of those appointees is absolutely vital to the proper functioning of the AFP. By its very nature, the investigative process under Part V will require appointees to report on the behaviour or conduct of their colleagues. It is essential that those reports are done in a confidential manner, so as to ensure the frank and fulsome disclosure of information to PRS and participation in Part V processes.

…

25.     Having reviewed Statements A, B and C, I confirm that they are statements by certain persons associated with or members of the AFP. The statements were provided for the purposes of the investigation into an alleged breach of the law and contain detailed information about the subject matter of that investigation. The content of the statements has not been publicly disclosed.

26.     In my opinion, it would not be reasonable to disclose the content of Statements A, B and C in circumstances where:

a.     the content of each statement is contextual so that the disclosure of any information within would reasonably identify the individual;

b.     the statements were given in the context of an investigation of a breach of the law. The persons who gave the statements are not publicly connected with the subject matter;

c.     the information provided was obtained in confidence, such that if individuals were aware that information provided in statements could be released other than for the purposes of the investigation, it would impact the participation of appointees giving such statements in the future.

44    The only evidence before the Tribunal which could potentially be regarded as directly addressing the understanding of the providers of the three statements with respect to any obligation of confidentiality in relation to their identities was the statement by Commander Kennedy in the final paragraph of his affidavit (paragraph 26c) that he considered it “would not be reasonable to disclose the content of” the three statements in circumstances where “the information provided was obtained in confidence, such that if individuals were aware that information provided in statements could be released other than for the purposes of the investigation, it would impact the participation of appointees giving such statements in the future”.

45    This statement could be interpreted in different ways. To the extent paragraph 26c is capable of being understood as containing more than an expression of Commander Kennedy’s opinion, it appears to be directed more to the (relevant and material) question of the confidentiality of the information provided and the general impact on future investigations if “information provided in [such] statements could be released” than to the critical question of whether the persons who supplied the information did so on the basis that the recipient of the information was obliged to keep the persons’ identities confidential. It is not clear what the Tribunal understood paragraph 26c to mean.

46    In a case like the present, and noting that the evidence could be given confidentially or in closed session, it is difficult to see why direct evidence could not be given by the person providing the information said to fall within s 37(1)(b), or a person directly involved in receiving that information, as to any agreement or understanding about whether the identity of the person giving the information was to be kept confidential.

47    The Tribunal’s reasons as to whether there was “an understanding of confidentiality” are contained under that heading at [36] to [38] of its reasons. The Tribunal based its conclusion that there was “an understanding of confidentiality” on two matters: first and more importantly, the regime of confidentiality with respect to the information obtained; and secondly, a conclusion that the statement providers did not consent to disclosure. These conclusions are contained in [36] to [38] of the reasons:

(1)    The Tribunal concluded at [36] that there was “a clear obligation that any information obtained when investigating or managing a complaint must be treated in confidence”. This finding was based on s 60A of the AFP Act and the AFP Commissioner’s Order on professional standards. The Tribunal concluded at [37] that there was “an express statutory obligation of confidentiality which extends to the identity of those who provided the three statements”. In context, the reference to “an express statutory obligation of confidentiality” must be a reference to s 60A.

(2)    The Tribunal referred at [38] to Commander Kennedy’s evidence that the statements were confidential and stated that “[t]his confidentiality is consistent with the position expressed by the statement providers who did not consent to disclosure”.

48    When it came to considering the application of s 37(1)(b), the Tribunal failed adequately to address whether the providers of the statements made those statements on the express or implied basis that their identities would be kept confidential. As to the two matters referred to immediately above:

(1)    To the extent that the Tribunal can be seen to have inferred from the statutory regime (and the Commissioner’s Order) that the statements were provided on the basis that the statement providers’ identities would be kept confidential, the Tribunal has not explained how that inference arises on the facts of this case on a correct understanding of the operation of s 60A. As McDonald J explains, s 60A does not prevent disclosure of information, or the existence or identity of a source of information, in all circumstances. For example, it does not prevent such disclosure where the disclosure is for the purposes of the AFP Act or regulations made thereunder: s 60A(2)(c). Whilst the existence of s 60A and the Commissioner’s Order are both relevant and material to whether the makers of the three statements provided information on the express or implied basis that their identities would be kept confidential, they do not of themselves supply the answer to that issue (see [37] above). I agree with McDonald J that the Tribunal proceeded on an incorrect understanding of the operation of s 60A, by failing to take the exceptions contained in s 60A into account. The Tribunal proceeded on the basis that s 60A had a broader application than it in fact does. Further, the Tribunal appears to have reasoned that, because s 60A applied with respect to the information obtained, the identity of the source was necessarily confidential. This is not correct.

(2)    The Tribunal’s statement about the position “expressed by the statement providers” – that they “did not consent to disclosure” – was not supported by any evidence. If it was based on a submission, it is not clear whether:

(a)    the Tribunal’s statement about the position expressed by the statement providers related to disclosure of the identity of the person or disclosure of the information provided or both; and

(b)    the position said to be “expressed by the statement providers” was the position of those persons at the time they each provided the information as opposed to some later position said to have been adopted by them.

49    It follows that the Tribunal’s decision in respect of s 37(1)(b) is affected by error. As noted earlier, I agree with the orders proposed by McDonald J.

Associate:

Dated:    3 February 2025

REASONS FOR JUDGMENT

MCDONALD J:

INTRODUCTION

50    The applicant, Michael Bachelard, is an experienced journalist who writes for The Age newspaper. On 30 June 2021, he made a request to the respondent (AFP) for access to certain documents under the Freedom of Information Act 1982 (Cth) (FOI Act).

51    On 26 November 2021, a delegate of the Commissioner of the AFP advised that four documents falling within the scope of the request had been identified. Access to the documents was refused in full. Mr Bachelard sought internal review of that decision and it was affirmed on 19 December 2021. The decision on internal review was an “IC reviewable decision”: FOI Act, s 54L(2).

52    On 3 May 2022, Mr Bachelard applied to the Office of the Australian Information Commissioner for review of the decision on internal review. On 18 April 2023, a delegate of the Australian Information Commissioner declined to undertake a review in the exercise of the power conferred by s 54W of the FOI Act, on the basis that the interests of the administration of the FOI Act made it desirable that the IC reviewable decision be considered by the Administrative Appeals Tribunal (Tribunal). Accordingly, on 16 May 2023, Mr Bachelard applied to the Tribunal for review of the decision pursuant to s 57A(1) of the FOI Act. On 29 February 2024, the Tribunal, constituted by a Deputy President, made a decision affirming the decision under review.

53    Mr Bachelard now appeals to this Court against the decision of the Tribunal. The appeal lies only on a question of law: Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), s 44(1). In accordance with s 44(3) of the AAT Act, this Court’s jurisdiction to hear and determine the appeal is to be exercised by a Full Court.

54    Since the commencement of this appeal, the AAT Act has been repealed and the Tribunal has been replaced by the Administrative Review Tribunal (ART). Item 25(2) of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) provides that, in a proceeding in a court that relates to a decision made by the Tribunal, and which is not finalised before the commencement of the Administrative Review Tribunal Act 2024 (Cth), “[a]nything the court could have done in relation to [the Tribunal] before the transition time may be done in relation to the ART”.

55    For the reasons that follow, in my view, the appeal should be allowed. The decision of the Tribunal should be set aside and the matter should be remitted to the ART (differently constituted) to be determined in accordance with the law. The AFP should pay Mr Bachelard’s costs of the appeal.

Background facts

56    Mr Bachelard’s request for documents under the FOI Act was for witness statements and a report concerning an investigation relating to certain conduct of a former Commissioner of the AFP, Mr Keelty.

57    In 2020, media outlets, including The Age, reported allegations that Ben Roberts-Smith, a highly decorated soldier in the Special Air Service Regiment, had committed war crimes during his service in Afghanistan. Mr Roberts-Smith later commenced an action in defamation against The Age and the journalists working for The Age who had reported the allegations. That action was dismissed by Besanko J on 1 June 2023: Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 (Roberts-Smith (No 41)). Justice Besanko’s decision is presently the subject of an appeal to the Full Court of this Court.

58    On 16 August 2020, The Age published an article in which it was reported that the AFP’s investigation in relation to the conduct of Mr Roberts-Smith had been “compromised” after former AFP Commissioner Mick Keelty was provided with confidential information by serving police officers and then passed that information on to Mr Roberts-Smith. Among other things, the article stated that:

(a)    in about late May 2018, the AFP had received two confidential referrals from the office of the Inspector-General of the Australian Defence Force regarding allegations that Mr Roberts-Smith had been involved in the commission of war crimes during his service as a special forces soldier in Afghanistan;

(b)    at around the same time, the AFP also received a complaint from a woman alleging that Mr Roberts-Smith had punched her in the face while they were conducting an extramarital affair;

(c)    in early June 2018, the AFP commenced a covert investigation into the three referrals regarding Mr Roberts-Smith’s conduct;

(d)    in the days following the launch of the investigation, Mr Keelty had met with Mr Roberts-Smith on two occasions in June 2018 and passed on confidential information to Mr Roberts-Smith which “confirmed to Mr Roberts-Smith that he was the subject of police interest”;

(e)    the Australian Commission for Law Enforcement Integrity (ACLEI) had confirmed that it had commenced an inquiry into “a potential corruption issue relating to the alleged release of information by an unknown AFP member to Mr Ben Roberts-Smith about an investigation into Mr Roberts-Smith”;

(f)    ACLEI only had power to investigate allegations of corrupt conduct by serving AFP members and The Age was not suggesting “that Mr Keelty had engaged in corruption, only that his disclosures compromised a covert inquiry”;

(g)    in a statement to The Age, the AFP had declined to comment apart from saying that it had referred the disclosures to ACLEI in June 2018;

(h)    the ACLEI inquiry had “targeted” former AFP Deputy Commissioner Ramzi Jabbour;

(i)    Mr Keelty had provided a written statement to The Age and the Sydney Morning Herald regarding his actions, in which he said that on about 15 June 2018, he had received a text message from Mr Jabbour saying that “something was on its way” regarding the referrals made by the Inspector-General to the AFP in relation to Mr Roberts-Smith;

(j)    Mr Keelty also said that on about 20 June 2018, he called Mr Jabbour to discuss the investigation, and that during that conversation Mr Keelty stated that Mr Jabbour told him to contact AFP Assistant Commissioner Neil Gaughan, who was the senior officer overseeing the referrals made by the Defence Inspector-General to the AFP at the time;

(k)    “according to multiple sources”, Mr Gaughan had disclosed Mr Keelty’s contact with Mr Roberts-Smith to the AFP’s Internal Affairs Unit;

(l)    Mr Keelty had stated that he contacted Andrew Colvin, the AFP Commissioner at that time, to inform him that Mr Keelty had been asked to reach out to Mr Roberts-Smith out of concern for Mr Roberts-Smith’s welfare, and Mr Colvin had agreed to such an approach; and

(m)    Mr Keelty had further said that Mr Colvin had made no direct reference to ongoing investigations during his conversation with Mr Keelty, but mentioned to Mr Keelty that he was not in a position to contact Mr Roberts-Smith at that time as there was “stuff running around” that prevented him from contacting Mr Roberts-Smith.

Mr Bachelard’s request for documents under the FOI Act

59    Mr Bachelard’s request for documents, made by email on 30 June 2021, was in the following terms:

This is a request under the FOI Act for statements written by:

Neil Gaughan

Nigel Ryan

Andrew Colvin.

Concerning approaches made by Mick Keelty to the AFP in June 2018 concerning Ben Roberts-Smith.

This FOI is also seeking the final report by AFP professional standards about Mr Keelty’s interaction with serving members.

As the nature of Mr Keelty’s conduct in contacting various AFP members has already been widely canvassed in media reports which relied on a public statement by Mr Keelty, and as the Professional Standards inquiry (at least as per how it pertains to Mr Keelty’s conduct) is now complete, there is no reason why these documents should not be released …

60    On 26 November 2021, a delegate of the Commissioner of the AFP wrote to Mr Bachelard identifying four documents relevant to his FOI request.

61    The documents identified were three witness statements (Statements) and a report that has been described as the “Professional Standards Report” or “PRS Report” (Report).

62    The delegate refused access to the four documents in full, relying on ss 22(1)(a)(ii), 37(1)(a), 47E(c) and(d) and 47F of the FOI Act. As has been noted above, Mr Bachelard sought internal review of the AFP’s decision, the result of which was that the original decision was affirmed. Mr Bachelard then applied to the Australian Information Commissioner for review of the decision and a delegate of the Australian Information Commissioner determined not to review the decision on the basis that the interests of the administration of the FOI Act made it desirable that the IC reviewable decision be considered by the Tribunal. Mr Bachelard then applied to the Tribunal for review of the AFP’s decision pursuant to s 57A(1) of the FOI Act.

The decision of the Tribunal

63    Before the Tribunal, the AFP relied on an affidavit of Commander Jason Kennedy sworn on 27 October 2023. Commander Kennedy held the position of Commander, Professional Standards in the AFP. Mr Bachelard relied on an affidavit affirmed by him on 27 November 2023, in which he referred to various media reports regarding the allegations against Mr Roberts-Smith, and findings made by Besanko J in relation to the disclosure made by Mr Keelty at [2434]-[2437] of the decision in Roberts-Smith (No 41).

64    The Tribunal conducted a hearing on 1 December 2023. Neither of the deponents was cross-examined on his affidavit. On 29 February 2024, the Tribunal made a decision affirming the decision under review. In its reasons for the decision, the Tribunal held that:

(a)    the Statements and the Report were exempt documents under s 37(1)(b) of the FOI Act;

(b)    the Statements and the Report were conditionally exempt under s 47E(c) and (d) of the FOI Act;

(c)    the Statements and the Report were conditionally exempt under s 47F of the FOI Act; and

(d)    granting access to any of the Statements or the Report would be contrary to the public interest pursuant to s 11A(5) of the FOI Act.

65    The reasons of the Tribunal in relation to each of these aspects of its decision are considered in greater detail below in the course of considering Mr Bachelard’s grounds of appeal and submissions.

THE APPEAL TO THIS COURT

66    In this Court, Mr Bachelard relies on the following grounds of appeal (slightly paraphrased):

(1)    The Tribunal misconstrued and/or misapplied s 37(1)(b) of the FOI Act in finding that the providers of the Statements were “confidential sources of information”.

(2)    The Tribunal erred in law in finding that the Report, in its entirety, and the Statements, in their entirety, were exempt documents under s 37(1)(b), and/or in failing to confine the effect of its decision to the disclosure of a “confidential source”.

(3)    The Tribunal misconstrued and/or misapplied s 47E(c) and (d) of the FOI Act in finding that disclosure of the Report and the Statements would have a substantial adverse effect because:

(a)    the material before the Tribunal was not capable of supporting that finding; and

(b)    the Tribunal overlooked and/or failed to consider relevant facts.

(4)    The Tribunal erred in law in finding that the Statements were exempt documents under s 47E(c) and (d) of the FOI Act in circumstances where the AFP did not rely on either of those statutory provisions.

(5)    The Tribunal erred in law in finding that the Report and the Statements, in their entirety (ie, without redaction), were exempt under s 47E(c) and (d) of the FOI Act and failing to consider and/or apply redactions.

(6)    The Tribunal misconstrued and/or misapplied s 47F of the FOI Act in finding that the Statements and the Report, in their entirety (ie, without redaction), were conditionally exempt because they contained personal information which it would be unreasonable to disclose.

(7)    The Tribunal misconstrued and/or misapplied the “public interest” under s 11A(5) of the FOI Act in finding that disclosure of the Statements and the Report would be contrary to the public interest.

(8)    The Tribunal erred in finding that parts of the Report were irrelevant and outside the scope of the request by misconstruing the request and/or failing to consider relevant matters.

67    Most of the grounds of appeal were supplemented by particulars. The substance of the issues arising in respect of each ground is explained as I address the grounds below. In light of the view I take about the issues I address below, it will not be necessary to address every ground, or every aspect of every ground.

68    For the purposes of the appeal, the AFP provided the judges constituting the Court with complete copies of the Statements and the Report on a confidential basis. Neither Mr Bachelard nor his representatives have been provided with copies of the Report or the Statements in any form.

69    The decision of the Tribunal was that access should not be given to any of the documents or to edited versions of any of the documents. The effect of the conclusions I have reached is that the question of whether the documents (or edited versions of the documents) are exempt from disclosure under the FOI Act should be re-determined. The position of the AFP remains that each of the Statements and the Report is a document that should not be released in any form. It has therefore been necessary to express these reasons in a manner that avoids describing the contents of the Report or the Statements except in general terms.

70    In reading and interpreting the reasons of the Tribunal, I am conscious that the Tribunal, too, was unable to refer to the contents of the Report or the Statements and I have taken this into account in considering the meaning of the Tribunal’s reasons and what they should be understood as revealing about the reasoning of the Tribunal.

RELEVANT PROVISIONS OF THE FOI ACT

71    Section 11A of the FOI Act provides:

11A Access to documents on request

Scope

(1)    This section applies if:

(a)    a request is made by a person, in accordance with subsection 15(2), to an agency or Minister for access to:

(i)    a document of the agency; or

(ii)    an official document of the Minister; and

(b)    any charge that, under the regulations, is required to be paid before access is given has been paid.

(2)    This section applies subject to this Act.

Mandatory access—general rule

(3)    The agency or Minister must give the person access to the document in accordance with this Act, subject to this section.

Exemptions and conditional exemptions

(4)    The agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

(5)    The agency or Minister must give the person access to the document if it is conditionally exempt at a particular time unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest.

(6)    Despite subsection (5), the agency or Minister is not required to give access to the document at a particular time if, at that time, the document is both:

(a)    a conditionally exempt document; and

(b)    an exempt document:

(i)    under Division 2 of Part IV (exemptions); or

(ii)    within the meaning of paragraph (b) or (c) of the definition of exempt document in subsection 4(1).

(Notes omitted.)

72    The expression “exempt document” which is used in s 11A(4) is (so far as is relevant to the present appeal) defined in s 4(1) of the FOI Act to mean “a document that is exempt for the purposes of Part IV”. Part IV of the FOI Act is entitled “Exempt Documents”. Within Division 1 of that Part, s 31B provides:

31B Exempt documents for the purposes of this Part

A document is exempt for the purposes of this Part if:

(a)     it is an exempt document under Division 2; or

(b)     it is conditionally exempt under Division 3, and access to the document would, on balance, be contrary to the public interest for the purposes of subsection 11A(5).

(Notes omitted.)

73    Section 32 is relevant to the interpretation of the provisions that identify the exemptions and conditional exemptions. It states:

32 Interpretation

A provision of this Part by virtue of which documents referred to in the provision are exempt documents, or are conditionally exempt:

(a)     shall not be construed as limited in its scope or operation in any way by any other provision of this Part by virtue of which documents are exempt documents, or are conditionally exempt; and

(b)    shall not be construed as not applying to a particular document by reason that another provision of this Part of a kind mentioned in paragraph (a) also applies to that document.

74    The effect of s 32 is that no implication or inference about the interpretation of one exemption is to be drawn from the existence or terms of any other exemption: each exemption stands alone and is to be construed without making any assumption that exemptions were not intended to overlap.

75    The provisions of Division 2 of Part IV (ss 33-47A) identify categories of documents which are exempt documents, while the provisions of Division 3 of Part IV (ss 47B-47J) identify categories of documents which are conditionally exempt, in the sense that they are exempt documents if, but only if, access to them would, on balance, be contrary to the public interest.

76    Section 15 of the FOI Act provides for the making of requests for access to documents. It relevantly states:

15 Requests for access

Persons may request access

(1)     Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.

Requirements for request

(2)     The request must:

(a)     be in writing; and

(aa)     state that the request is an application for the purposes of this Act; and

(b)     provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it; and

(c)     give details of how notices under this Act may be sent to the applicant (for example, by providing an electronic address to which notices may be sent by electronic communication).

…

77    Before the Tribunal, the AFP relied on the exemption provided for in s 37(1)(b) of the FOI Act and the conditional exemptions provided for in ss 47E(c) and (d) and 47F.

78    Section 37(1) of the FOI Act relevantly provides:

37 Documents affecting enforcement of law and protection of public safety

(1)     A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

…

(b)     disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; or

…

Section 37(2A) identifies a class of persons who are “taken to be” confidential sources of information for the purposes of s 37(1), but s 37(2A) does not exhaustively define who are confidential sources and has no immediate relevance to the issues arising on this appeal.

79    Section 47E of the FOI Act relevantly provides as follows:

47E Public interest conditional exemptions—certain operations of agencies

A document is conditionally exempt if its disclosure under this Act would, or could reasonably be expected to, do any of the following:

…

(c)     have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or by an agency;

(d)     have a substantial adverse effect on the proper and efficient conduct of the operations of an agency.

80    Section 47F of the FOI Act relevantly provides as follows:

47F Public interest conditional exemptions—personal privacy

General rule

(1)    A document is conditionally exempt if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).

(2)    In determining whether the disclosure of the document would involve the unreasonable disclosure of personal information, an agency or Minister must have regard to the following matters:

(a)    the extent to which the information is well known;

(b)    whether the person to whom the information relates is known to be (or to have been) associated with the matters dealt with in the document;

(c)    the availability of the information from publicly accessible sources;

(d)    any other matters that the agency or Minister considers relevant.

(3)    Subject to subsection (5), subsection (1) does not have effect in relation to a request by a person for access to a document by reason only of the inclusion in the document of matter relating to that person.

…

81    The provisions identifying classes of exempt documents and conditionally exempt documents generally do so by reference to what disclosure of a document would “involve” or by reference to effects which disclosure of a document would have, or could reasonably be expected to have. Although the focus of s 11A(1) of the FOI Act is on requests for “documents”, and s 11A(4) requires agencies (and, on review, the Australian Information Commissioner or the Tribunal) to determine whether a document is an “exempt document”, s 4(1) of the FOI Act also defines the useful concept of “exempt matter” as follows:

exempt matter means matter the inclusion of which in a document causes the document to be an exempt document.

82    Section 22 of the FOI Act provides that:

22 Access to edited copies with exempt or irrelevant matter deleted

Scope

(1)    This section applies if:

(a)    an agency or Minister decides:

(i)    to refuse to give access to an exempt document; or

(ii)     that to give access to a document would disclose information that would reasonably be regarded as irrelevant to the request for access; and

(b)     it is possible for the agency or Minister to prepare a copy (an edited copy) of the document, modified by deletions, ensuring that:

(i)     access to the edited copy would be required to be given under section 11A (access to documents on request); and

(ii)     the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request; and

(c)     it is reasonably practicable for the agency or Minister to prepare the edited copy, having regard to:

(i)     the nature and extent of the modification; and

(ii)     the resources available to modify the document; and

(d)     it is not apparent (from the request or from consultation with the applicant) that the applicant would decline access to the edited copy.

Access to edited copy

(2)     The agency or Minister must:

(a)     prepare the edited copy as mentioned in paragraph (1)(b); and

(b)     give the applicant access to the edited copy.

Notice to applicant

(3)     The agency or Minister must give the applicant notice in writing:

(a)     that the edited copy has been prepared; and

(b)     of the grounds for the deletions; and

(c)     if any matter deleted is exempt matter—that the matter deleted is exempt matter because of a specified provision of this Act.

(4)     Section 26 (reasons for decision) does not apply to the decision to refuse access to the whole document unless the applicant requests the agency or Minister to give the applicant a notice in writing in accordance with that section.

83    Broadly speaking, the effect of s 22(2) is to require the relevant agency to provide at least an edited copy of a document that is the subject of a request if it is possible and reasonably practicable to prepare an edited copy that contains no exempt matter and no “information that would reasonably be regarded as irrelevant to the request for access”.

84    Section 61(1) of the FOI Act should also be noted. Insofar as it is presently relevant, it provides:

61 Onus

(1)     In proceedings under this Part for review of a decision in relation to a request … :

…

(b)     if the applicant in relation to the request … applied for the review—the agency to which, or the Minister to whom, the request … was made has the onus of establishing that the decision is justified, or that the Tribunal should give a decision adverse to the applicant.

85    The effect of s 61(1) is that, in proceedings on a review in the Tribunal, the agency – in this case the AFP – bears the onus of establishing the facts necessary to support the conclusion that an exemption or conditional exemption applies.

THE POSITION TAKEN BY THE AFP IN THE PROCEEDINGS BEFORE THE TRIBUNAL

The issues before the Tribunal as identified in the Statements of Facts, Issues and Contentions

86    It is convenient to begin by identifying the issues before the Tribunal and, in particular, the position taken by the AFP before the Tribunal.

87    In the proceedings before the Tribunal, both Mr Bachelard and the AFP filed Statements of Facts, Issues and Contentions (SFICs). One apparent purpose of those documents was to define the issues in contention between the parties which the Tribunal would be required to decide. In accordance with procedural directions made by the Tribunal, the AFP provided two SFICs, one which was provided to Mr Bachelard (AFP Open SFIC) and one which was provided only to the Tribunal on a confidential basis (AFP Confidential SFIC).

88    At [15], the AFP Open SFIC stated:

Attached to this SFIC and marked Attachment A is a schedule which itemises the relevant FOI Act provision relied on by the respondent, in respect to each of the Documents.

89    At [17], the AFP Open SFIC referred to s 22(1)(a)(ii) of the FOI Act and at [18] it said:

The Respondent submits that those parts of the Professional Standards Report identified in the schedule at Attachment A are outside the scope of the access application.

90    Both parties accepted that the references in these paragraphs to “Attachment A” were to a particular document entitled “Schedule of documents in dispute” which (although not in fact identified on its face as “Attachment A”) contained a table identifying the four documents, and the grounds of exemption and the FOI Act provisions on which the AFP relied (Schedule). The Schedule indicated that the AFP’s position with respect to the Report, and each of the Statements, was that access should be “refused in full”.

The issues joined between the parties in relation to the Report

91    In relation to the Report, the Schedule indicated that the provisions of the FOI Act relied upon were ss 22(1)(a)(ii), 37(1)(b), 47E(c) and (d), and 47F. The Schedule did not expressly state whether the AFP’s position was that the entirety of the Report was covered by each of those provisions considered on its own, or whether each of the identified provisions applied to all or part of the Report so that, between them, they covered the whole of the Report. However, given that s 22(1)(a)(ii) (relating to the redaction of “information that would reasonably be regarded as irrelevant to the request”) was one of the provisions referred to, the Schedule could not be sensibly interpreted as claiming that each of the provisions, on its own, covered the entirety of the Report: a document identified by the AFP as within Mr Bachelard’s FOI request could not logically consist wholly of material that the AFP regarded as irrelevant to that request or “out of scope”.

92    Moreover, there were other passages in the AFP Open SFIC that clearly indicated that at least some of the exemptions on which the AFP relied were only said to be relevant to limited parts of the Report. At [20]-[21], the AFP Open SFIC said:

[20] To the extent the Professional Standards Report discusses matters other than the AFP’s Professional Standards Investigation Unit’s (PRS’s) investigation of Mr Keelty’s conduct in respect of Mr Roberts-Smith in June 2018, the information is outside the scope of the access application and access ought be refused under section 22(1)(a)(ii) of the FOI Act on the basis that it is irrelevant to the access application.

[21] Also, and in the alternative, the Respondent submits that access to the complete Professional Standards Report should be refused on the basis that the information contained in the Professional Standards Report is exempt and/or conditionally exempt under Part IV Division 2 and Division 3 of the FOI Act.

93    The first of these paragraphs confirmed that s 22(1)(a)(ii) was relied on only in relation to part of the Report. The second of these paragraphs was ambiguous as to whether the AFP contended that each individual exemption applied to all matter in the Report or merely that, between them, the exemptions relied upon covered the whole of the Report. There were other paragraphs in the AFP Open SFIC which, on a fair reading, would have conveyed to a person in Mr Bachelard’s position that the AFP was only claiming that parts of the Report were covered by each individual exemption. For instance, the AFP Open SFIC at [30] said:

The Respondent submits that those parts of the Professional Standards Report identified in the schedule at Attachment A and all of documents A, B and C [ie, the Statements] are exempt from disclosure under section 37(1)(b) of the FOI Act.

94    Equivalent statements in the AFP Open SFIC indicated that the AFP contended that “those parts of the Professional Standards Report identified in the schedule at Attachment A” were conditionally exempt from disclosure under s 47E(c) (at [42]), s 47E(d) (at [50]) and s 47F (at [65]). These passages of the AFP Open SFIC would have been somewhat confusing to a person in Mr Bachelard’s position, because the Schedule did not in fact link particular exemptions or sections of the FOI Act to particular “parts” of the Report. Nevertheless, these passages suggested fairly clearly that the AFP was only claiming that each of the exemptions or conditional exemptions applied to “parts” of the Report. That is especially so in light of the apparent contrast drawn in [30] of the AFP Open SFIC between “parts of the Professional Standards Report” and “all of documents A, B and C”.

95    The position with respect to the Report is further complicated when regard is had to the copy of the Report that was provided confidentially to the Tribunal (and, on the appeal, to this Court). Of course, that copy was not available to Mr Bachelard. It was marked up in such a way as to identify whole pages and parts of pages of the Report to which s 22(1)(a)(ii) was claimed to apply, and other pages and parts of pages to which s 47E(c) was claimed to apply. There was no markup in the Report that identified any particular part of it that was claimed to be exempt by reason of ss 37(1)(b), 47E(d) or 47F.

96    One possible inference is that the AFP was claiming that ss 37(1)(b), 47E(d) and 47F applied to the whole of the Report, but that ss 47E(c) and 22(1)(a)(ii) only applied to the identified parts of the Report. However, it is not apparent why, for example, the AFP would claim that s 47E(c) applied only to parts of the Report but that s 47E(d) applied to the whole of the Report.

97    Another possible inference is that the exercise of identifying the parts of the Report to which each provision was claimed to apply had only been partially completed.

98    Since it was clear that the AFP did rely on the exemptions in each of ss 37(1)(b), 47E(c) and (d) and 47F in relation to the Report, I accept that, on balance, the most appropriate way to interpret the AFP Open SFIC and the confidential copy of the Report, when they are read together, is that the AFP was claiming that:

(a)    the whole of the Report was exempt under s 37(1)(b) of the FOI Act;

(b)    the whole of the Report was exempt under s 47E(d) of the FOI Act;

(c)    the whole of the Report was exempt under s 47F of the FOI Act;

(d)    particular parts of the Report contained matter which was exempt matter by reason of s 47E(c) of the FOI Act, being those parts marked up in the confidential copy of the Report with the label “s 47E(c)”; and

(e)    particular parts of the Report contained information which was irrelevant to the request and to which s 22(1)(a)(ii) of the FOI Act applied.

99    However, to a person in the position of Mr Bachelard, without access to the marked up copy of the Report, the most obvious and reasonable interpretation of the AFP Open SFIC was that the AFP was claiming that, while the provisions relied upon between them covered the whole of the Report, each provision (ss 22(1)(a)(ii), 37(1)(b), 47E(c) and (d) and 47F) was only relied upon in relation to some parts of the Report. There was, of course, no way for a person in Mr Bachelard’s position to tell which provisions were said to apply to which parts of the Report, or even to have any sense of how much matter in the Report was claimed to be exempt matter by reason of each provision.

The issues joined between the parties in relation to the Statements

100    In relation to each of the Statements, the Schedule indicated that the provisions of the FOI Act on which the AFP relied were ss 37(1)(b) and 47F. Notably, in connection with the Statements, the Schedule did not identify the exemptions on which the AFP relied as including those provided for in s 47E(c) or (d). This assumes significance in relation to ground 4 of Mr Bachelard’s appeal.

Observations about the definition of the issues before the Tribunal

101    An evident purpose of documents like the AFP Open SFIC is to define the issues for decision by the Tribunal. Ideally, that should be done in a way that will allow both the Tribunal and the FOI applicant to understand the issues and the extent of the material over which exemptions are claimed, insofar as that is possible having regard to the need to avoid inappropriately disclosing information about the material over which exemptions were claimed. An FOI applicant may be expected to make forensic decisions about the conduct of their case in the Tribunal in the light of their understanding of the issues, including (a) which exemptions are relied upon by the agency; (b) whether those exemptions are relied upon in relation to all or only some of the documents identified as relevant to the access request; and (c) whether particular exemptions are relied upon in relation to the whole or only parts of particular documents.

102    The difficulties associated with identifying whether the Report was claimed to be wholly or partly exempt under each exemption relied on by the AFP demonstrate the need for careful thought to be given to the way documents like the AFP Open SFIC are expressed, having regard, in particular, to the way a person in the position of an FOI applicant, in possession of less information than the agency and the Tribunal, would reasonably understand them.

GROUND 1 – MISCONSTRUCTION OF CONFIDENTIAL SOURCES EXEMPTION

103    By his first ground of appeal, Mr Bachelard contended that the Tribunal misconstrued or misapplied s 37(1)(b) of the FOI Act in finding that the providers of the Statements were “confidential sources of information”. Mr Bachelard advanced three distinct arguments in connection with this ground of appeal.

104    The first argument was advanced in two different ways. The first was that, on its proper construction, s 37(1)(b) of the FOI Act applies only to “informants” who voluntarily provide information in relation to the enforcement or administration of the law, and does not apply to information that is given under compulsion. Mr Bachelard submitted that the makers of the Statements were not “informants” and that the information they provided could not be from a “confidential source” because Part V of the Australian Federal Police Act 1979 (Cth) (AFP Act) contains provisions under which AFP members can be compelled to participate in investigations. The second way I understood the first argument to be advanced was by way of a submission that the fact that AFP members could be compelled to provide information was a mandatory relevant consideration to which the Tribunal was required to have regard in making its assessment as to whether the person who provided the Statements was a “confidential source”.

105    The second argument advanced in respect of this ground of appeal was that the makers of the statements were not confidential sources because their identities were ascertainable having regard to the evidence before the Tribunal about publicly available information.

106    The third argument was that the Tribunal failed to take into account several relevant considerations that Mr Bachelard submitted it was required to take into account in deciding whether the persons who had provided the Statements were “confidential sources”.

107    For the reasons that follow, I consider that one aspect of Mr Bachelard’s third argument should be upheld, namely that the Tribunal failed to consider the scope of the exceptions contained in s 60A of the AFP Act and consequently proceeded on an incorrect view or assumption as to the legal effect of s 60A. I would, however, characterise this error as the Tribunal proceeding on a misunderstanding of the legal effect of s 60A of the AFP Act, rather than as a failure to take into account a mandatory relevant consideration. Although the Tribunal’s reasons may not have relied on the legal effect of s 60A alone, it is clear that the Tribunal relied heavily on its understanding of the legal effect of s 60A, such that its failure to appreciate the legal effect of s 60A as a whole materially contributed to its assessment of whether the person, or each of the persons, who provided the Statements was a “confidential source”.

108    In light of this conclusion, I do not consider it necessary to address the other issues that arise under Mr Bachelard’s first ground of appeal.

The Tribunal’s reasons

109    The reasons of the Tribunal in relation to the exemption in s 37(1)(b) of the FOI Act appear at [25]-[54] of its reasons.

110    From [25]-[34], the Tribunal discussed the operation of s 37(1)(b) and referred to various authorities. At [35], the Tribunal turned from the identification of general principles to their application to the case before it. The Tribunal said at [35]:

It follows from my above analysis that a source will be considered confidential under s 37(1)(b) if:

(a)     the information was provided on the understanding, express or implied, that the identity of the source would remain confidential; and

(b)     the identity of the source remains confidential and has not been publicly disclosed.

111    At [36], the Tribunal said:

Commander Kennedy provides comprehensive evidence in his affidavit about the regime of confidentiality that applies to investigations conducted under Part V of the AFP Act. There is a general secrecy provision in s 60A of the AFP Act that prohibits relevant AFP personnel from divulging or communicating any information obtained in the course of carrying out, performing or exercising a duty, function or power under the AFP Act. This broad provision would cover the information in the Four Documents including the identities of the statement providers. A more specific confidentiality obligation arises from the AFP Commissioner’s Order on professional standards at clauses 8.14, 18.1 and 20. I find that there is a clear obligation that any information obtained when investigating or managing a complaint must be treated in confidence.

112    At [37], the Tribunal shortly described Mr Bachelard’s submission about the “confidentiality regime” and expressed its conclusion, in the following terms:

The applicant contends that the respondent has failed to establish any obligation of confidentiality applicable to the identity of the source of information as opposed to the information itself. I reject this contention. This is a case where there is an express statutory obligation of confidentiality which extends to the identity of those who provided the three statements. Further, there is nothing in the confidentiality provisions which limit [sic] the obligations to the duration of any investigation.

113    At [38], the Tribunal said:

With respect to the Professional Standards Report and three statements the subject of this application, Commander Kennedy deposes specifically that they arose from the Part V investigation, are confidential and have not been publicly disclosed. The confidentiality is consistent with the position expressed by the statement providers who did not consent to disclosure. Further, it is relevant that the respondent at all times has treated its sources as confidential and has not disclosed them. There is clearly speculation as to the identity of the sources but that does not undermine the understanding that the sources would remain confidential and have been treated that way by the respondent.

114    That was the end of the Tribunal’s consideration of whether the providers of the Statements were “confidential sources”. From [39]-[45] of its reasons, the Tribunal addressed the issue of whether the identity of the providers of the statements had become publicly known.

Observations about relevant provisions of the AFP Act

115    In describing the “regime of confidentiality” applicable to the investigation, the Tribunal, at [36] of its reasons, referred to s 60A of the AFP Act and cll 8.14, 18.1 and 20 of the AFP Commissioner’s Order CO2 on professional standards (Commissioner’s Order 2) in support of its conclusion that the sources of information (that is, the person or persons who provided the Statements) were “confidential sources”.

116    The evidence of Commander Kennedy was somewhat unclear as to whether, in describing the “regime of confidentiality” applicable to investigations conducted under Part V of the AFP Act, he was merely describing what he understood to be the effect of ss 60A and 40ZA of the AFP Act and the relevant clauses of Commissioner’s Order 2. If Commander Kennedy’s evidence merely purported to describe his understanding of the effect of those provisions, his evidence could not support a finding that there was a “confidentiality regime” that was any greater than that provided for by the provisions themselves.

117    A possible reading of the Tribunal’s reasons at [36]-[38] is that it understood Commander Kennedy’s evidence in that way, although that is not clear. The Tribunal’s statement in the opening sentence of [36] referring to Commander Kennedy’s evidence “about the regime of confidentiality” is ambiguous in that regard. However, the fact that the Tribunal immediately went on to refer specifically to s 60A of the AFP Act and Commissioner’s Order 2, and did not refer to any other aspect of Commander Kennedy’s evidence in support of its conclusion that there was “a clear obligation that any information obtained when investigating or managing a complaint must be treated in confidence”, may suggest that the better reading of the Tribunal’s reasons is that its reference to “the regime” was merely to Commander Kennedy’s understanding of the effect of the statutory provisions to which he had referred.

118    In the proceedings before the Tribunal, the AFP bore the onus of establishing the facts on which the application of the exemption in s 37(1)(b) of the FOI Act depended: FOI Act, s 61(1). Relevantly, the AFP bore the onus of establishing that the disclosure of the Report or the Statements would “disclose, or enable a person to ascertain, the … identity of a confidential source of information”. If Commander Kennedy’s conclusion was based on any specific knowledge he had about the provision of assurances of confidentiality to a particular person or persons, one would ordinarily expect that his evidence would identify the relevant facts – for example, what was in fact said to the person or persons who provided the Statements about whether their names or identifying information would be kept confidential, and the limits of any such assurance of confidentiality – and not merely assert the general conclusion that there was “a clear obligation that any information obtained when investigating or managing a complaint must be treated in confidence”. If for some reason it was thought that that evidence could not be provided to Mr Bachelard, it would have been open to the AFP to seek to supplement the open affidavit of Commander Kennedy with a closed affidavit.

119    As I have said, however, Commander Kennedy was not cross-examined, so the factual basis for the conclusion he expressed was not explored. It may have been open to the Tribunal to regard his evidence as being based partly on his knowledge of the way Part V investigations generally were conducted, or the way this investigation in particular was conducted, and not solely on his understanding of the legal effect of s 60A of the AFP Act.

120    It is not necessary to reach a concluded view about this, because it is clear that the Tribunal did, at least, place heavy reliance on what it understood to be the legal effect of s 60A of the AFP Act. Its finding that the persons who provided the Statements were “confidential sources” was, at the least, strongly influenced by its interpretation of those provisions and, if that interpretation was wrong (as I think it was, for the reasons explained at [121]-[136] below), then it follows that the Tribunal proceeded on a wrong understanding of the law which affected its decision: see Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at 383 [192], quoting Waterford v The Commonwealth (1987) 163 CLR 54 at 77 (Brennan J).

The Tribunal misunderstood the relevant provisions of the AFP Act

121    Section 60A of the AFP Act is the first provision in Part VI of the Act (entitled “Miscellaneous”). As in force at the time of the Tribunal’s decision, and currently, it relevantly provides:

60A Secrecy

(1)     This section applies to a person who is, or was at any time:

(a)     the Commissioner; or

(b)     a Deputy Commissioner; or

(c)     an AFP employee; or

(d)     a special member; or

(da)     a special protective service officer; or

(e)     a person engaged under section 35; or

(f)     a person performing functions under an agreement under section 69D.

(2)     A person to whom this section applies must not, directly or indirectly:

(a)     make a record of any prescribed information; or

(b)     divulge or communicate any prescribed information to any other person;

except for:

(c)     the purposes of this Act or the regulations; or

(d)     the purposes of the National Anti‑Corruption Commission Act 2022 or regulations under that Act; or

(e)     the purposes of the Witness Protection Act 1994 or regulations under that Act; or

(ea)     the purposes of the Parliamentary Joint Committee on Law Enforcement Act 2010 or regulations under that Act; or

(f)     the carrying out, performance or exercise of any of the person’s duties, functions or powers under Acts or regulations mentioned in paragraphs (c), (d), (e) and (ea); or

(g)     the purposes of an IGIS official carrying out, performing or exercising any of the IGIS official’s duties, functions or powers as an IGIS official.

Penalty: Imprisonment for 2 years.

(2A)     This section does not apply to:

(a)     a divulgence or communication of prescribed information that is authorised by the Commissioner under subsection (2B); or

(b)     a divulgence or communication of personal information that is authorised by the Commissioner under subsection (2C).

(2B)     The Commissioner may, if he or she is of the opinion that it is in the interests of the due administration of justice to do so, authorise a person to whom this section applies to divulge or communicate prescribed information that relates to the National Witness Protection Program established by the Witness Protection Act 1994 to a person specified in the authorisation.

(2C)     The Commissioner may authorise a person to whom this section applies to divulge or communicate an individual’s personal information if the individual requests, or gives consent to, that divulgence or communication.

(2D)     Subsection (2C) does not require the Commissioner to authorise a divulgence or communication of personal information that is otherwise required or authorised under this Act.

(3)     In this section:

personal information has the same meaning as in the Privacy Act 1988.

prescribed information means information obtained by a person to whom this section applies:

(a)     in the course of carrying out, performing or exercising any of the person’s duties, functions or powers under:

(i)     this Act or the regulations; or

(ii)     the National Anti‑Corruption Commission Act 2022 or regulations under that Act; or

(iii)     the Witness Protection Act 1994 or regulations under that Act; or

(b)     otherwise in the course of the person’s service, employment or engagement under Acts or regulations mentioned in paragraph (a).

122    The prohibition imposed by s 60A(2) applies to all employees, members and protective services officers of the AFP (and the various other persons listed in s 60A(1)), in relation to all information obtained by them in the course of their official duties, functions or powers under the AFP Act and the regulations made thereunder. Those duties, powers and functions include the ordinary functions of policing performed by AFP officers in relation to the investigation of offences.

123    It is important to appreciate the true scope of the prohibition imposed by s 60A(2), rather than making assumptions about the disclosure and use of information which it prohibits. In particular, the scope of the prohibition can only be understood having regard to the exceptions to the prohibition that are set out in ss 60A(2)(c)-(g). The most important of those is that, by virtue of s 60A(2)(c), s 60A imposes no prohibition on any person making a record of prescribed information or divulging or communicating prescribed information for the purposes of the AFP Act or regulations made thereunder.

124    The purposes of the AFP Act include the performance, by the persons constituting the AFP (identified in s 6(1) of the AFP Act as the Commissioner, the Deputy Commissioner, AFP employees, special members and special protective services officers), of the various functions listed in s 8(1) of the AFP Act. Those functions are extensive:

(1)     The functions of the Australian Federal Police are:

(a)     subject to subsection (1A), the provision of police services in relation to the Australian Capital Territory; and

(aa)     the provision of police services in relation to the Jervis Bay Territory; and

(b)     the provision of police services in relation to:

(i)     laws of the Commonwealth;

(ii)     property of the Commonwealth (including Commonwealth places) and property of authorities of the Commonwealth; and

(iii)     the safeguarding of Commonwealth interests; and

(baa)     the investigation of State offences that have a federal aspect; and

(ba)     the provision of services in accordance with arrangements entered into under subsection (1C) and doing anything else included in the arrangements that is incidental or conducive to the provision of the services; and

(bb)     to perform the functions conferred by the Witness Protection Act 1994; and

(bc)     to perform the functions conferred by a law of a State or Territory that is a complementary witness protection law for the purposes of the Witness Protection Act 1994; and

(bd)     to perform functions under the Proceeds of Crime Act 2002; and

(be)     to perform such protective and custodial functions as the Minister directs by notice in writing in the Gazette, being functions that relate to a person, matter or thing with respect to which the Parliament has legislative power; and

(bf)     the provision of police services and police support services for the purposes of assisting, or cooperating with, an Australian or foreign:

(i)     law enforcement agency; or

(ii)     intelligence or security agency; or

(iii)     government regulatory agency; and

(bg)     the provision of police services and police support services in relation to establishing, developing and monitoring peace, stability and security in foreign countries; and

(bh)     to assist or cooperate with:

(i)     an international organisation; or

(ii)     a non‑governmental organisation, in relation to acts, omissions, matters or things outside Australia;

in relation to the provision of police services or police support services; and

(c)     to do anything incidental or conducive to the performance of the foregoing functions.

125    Taking just the function referred to in s 8(1)(b)(i) as a prominent example, the prohibition in s 60A(1) does not prevent a person from disclosing any information obtained in the course of carrying out, performing or exercising any of their duties, functions or powers under the AFP Act for the purpose of providing “police services” in relation to laws of the Commonwealth. That encompasses a wide range of official activity by AFP appointees, including the provision of information to persons in the course of and for the purpose of investigating the commission of criminal offences against laws of the Commonwealth; providing information to prosecution services for the purposes of criminal prosecutions (including information that must be disclosed to the defence); and the giving of evidence in criminal proceedings.

126    AFP appointees will commonly make a record of prescribed information in witness statements, and disclose the information contained in witness statements that they have prepared, for those purposes. In many situations, when an AFP officer makes a note or record of information in the course of performing functions under the AFP Act, including by making a witness statement, they can have no realistic expectation that the information will be kept confidential.

127    In many cases where an AFP appointee makes a witness statement in connection with a particular criminal investigation, they may be expected to be aware, for example, that if the investigation leads to a prosecution, their witness statement may be provided to the defence as part of the disclosure process, that their statement may ultimately be tendered as evidence in open court, or that information contained in the witness statement may become the subject of cross-examination if the AFP appointee is called to give evidence. If a statement is prepared by a person in the expectation that they may have to give evidence in court about topics addressed in the statement, it is improbable that any real assurance could be given to them that their identity, as a person who was the “source” of the information in the statement, would remain confidential.

128    On the other hand, in the case of informants who provide “intelligence” information to police on the basis of a promise of anonymity (whether or not that information is ultimately reduced to a statement), it is to be expected that they will often be “confidential sources”.

129    These observations are intended to be general, and not to foreclose the proper assessment of the question of whether any or all of the makers of the Statements under consideration in the present case were, in fact, “confidential sources”. The point is that that is not a question which can be answered definitively simply by reference to the obligations to maintain secrecy which are imposed by s 60A. The object and effect of s 60A is not to create a regime of complete confidentiality or secrecy in relation to “prescribed information” or the identity of persons who provide “prescribed information”. Its principal concern is with the improper use or disclosure of information obtained in the course of performing official duties and functions. The assessment of whether a particular person is a confidential source may depend upon the uses that may be made of the information they provide and whether those uses are such that the person could reasonably have expected that their identity as a source of information was to be kept confidential.

130    Part V of the AFP Act deals with “Professional standards and AFP conduct and practices issues”. The object of the Part is to provide procedures by which such issues can be raised and dealt with. Those procedures include procedures by which a person who is not otherwise an employee or member of the AFP may be appointed to carry out an investigation or inquiry. That is what occurred in the present case in relation to the alleged conduct of an AFP officer involving the provision of information to Mr Keelty regarding the AFP investigation concerning Mr Roberts-Smith.

131    Section 40ZA is the sole provision in Division 9 of Part V of the AFP Act. It provides:

40ZA Secrecy

(1)     This section applies to a person (other than an AFP appointee or the Ombudsman) who conducts:

(a)     an investigation of a category 3 conduct issue or a corruption issue under Subdivision D of Division 3; or

(b)     an inquiry under Division 4.

Note 1: AFP appointees are covered by the confidentiality requirements of section 60A.

Note 2: The Ombudsman is covered by the confidentiality requirements of section 35 of the Ombudsman Act 1976.

(2)     A person who is, or has been, a person to whom this section applies commits an offence if:

(a)     the person (either directly or indirectly and either while he or she is, or after he or she has ceased to be, a person to whom this section applies):

(i)     makes a record of information; or

(ii)     divulges or communicates information; and

(b)     the information was given to, or obtained by, the person in the course of, or for the purposes of, the investigation or inquiry.

Penalty: 30 penalty units.

(3)     Subsection (2) has effect subject to subsections (4), (5), (6) and (6A).

(4)     Subsection (2) does not prevent a person who is, or has been, a person to whom this section applies from making a record of, or divulging or communicating, information for the purposes of the investigation or inquiry.

(5)     Subsection (2) does not prevent a person who is, or has been, a person to whom this section applies from making a record of, or divulging or communicating, information with the written consent of the appropriate person.

(6)    Subsection (2) does not prevent a person from producing a record, or giving information, in evidence before a court.

(6A)     Subsection (2) does not prevent a person from making a record of, or divulging or communicating, information for the purpose of an IGIS official exercising powers, or performing functions or duties, as an IGIS official.

(7)     For the purposes of this section, the appropriate person is:

(a)     the Minister in relation to a person who is conducting, or has conducted, an inquiry under Division 4; and

(b)     the Commissioner in relation to any other person to whom this section applies.

132    The expression “AFP appointee” is defined in s 4(1) in a way that includes most of the people listed in s 60A(1). As the first note to s 40ZA(1) suggests, the prohibition imposed by s 40ZA does not cover those persons because they are already covered by the more generally applicable provision in s 60A itself. The evident purpose and effect of s 40ZA(1) is to impose a similar obligation of confidentiality applicable to persons who are not AFP appointees but who are specifically engaged to conduct investigations or inquiries under Part V of the AFP Act.

133    In the passage at [36] of its reasons which I have set out at [111] above, the Tribunal described s 60A of the AFP Act as “a general secrecy provision … that prohibits relevant AFP personnel from divulging or communicating any information obtained in the course of carrying out, performing or exercising a duty, function or power under the AFP Act”. That description accurately mirrors the words of s 60A(2)(b), but it is not an accurate description of the effect of s 60A as a whole, because it does not acknowledge the significant practical effect of the exceptions to the prohibition. Section 60A does not prevent absolutely the public disclosure of information to which it applies. It follows that the application of s 60A in relation to the information in the Statements does not, by itself, establish that the persons who provided them were “confidential sources”. Such a person may be a confidential source but that will only be the case if they provide information in circumstances where it is required to be kept confidential.

134    For these reasons, in my view, the Tribunal’s decision was based on a misunderstanding of the effect of s 60A.

135    Mr Bachelard submitted that the Tribunal had erred by failing to have regard to a relevant consideration, namely the exceptions to the general prohibition on disclosure in s 60A of the AFP Act. While it might be possible to conclude that the proper scope of any applicable statutory prohibition on disclosure is a matter that a decision maker considering the exemption in s 37(1)(b) is required to take into account, that is not clear and I would prefer not to decide that question.

136    It is sufficient to indicate that, in my view, what the Tribunal said about s 60A indicates that it proceeded on a misunderstanding of an aspect of the law applicable to its decision, and that was an error of law which in fact contributed to the Tribunal’s reasoning and its decision regarding the application of s 37(1)(b).

Conclusions regarding ground 1

137    I would uphold Mr Bachelard’s first ground of appeal on the basis that the Tribunal’s misunderstanding of the legal operation of s 60A of the AFP Act materially affected its decision.

138    Since preparing a draft of my reasons for judgment, I have had the opportunity to read the additional reasons of Wigney J. I would also uphold Mr Bachelard’s first ground of the appeal for the additional reasons given by Wigney J.

GROUND 2 – FAILING TO CONSIDER WHETHER REDACTIONS AND PARTIAL DISCLOSURE OF THE REPORT AND THE STATEMENTS WOULD DISCLOSE A CONFIDENTIAL SOURCE

139    By his second ground of appeal, Mr Bachelard contends that the Tribunal erred in law in finding that the Report and the Statements, in their entirety, were exempt documents under s 37(1)(b) of the FOI Act, or (put another way) in failing to confine the effect of its decision to the disclosure of a “confidential source”.

140    The effect of s 22(1) of the FOI Act was that, if the Tribunal (standing in the shoes of the agency) decided to refuse to give access to an exempt document, and if it was possible and reasonably practicable for an edited copy of the document to be prepared to which access would be required to be given under s 11A of the FOI Act, then the Tribunal was required to direct that Mr Bachelard be given access to the edited copy, unless it was apparent that Mr Bachelard would decline access to the edited copy.

141    In practical terms, that meant that, in order to complete the exercise of its jurisdiction, the Tribunal, if it found that the Report was an exempt document for any reason, was required to consider whether it would be reasonably practicable to provide an edited copy of the document from which the matter that attracted the exemption was deleted. Notably, Mr Bachelard had specifically submitted to the Tribunal, in his SFIC, that, “the AFP’s reliance on s 37(1)(b) cannot, on any view, justify the non-production of [the Report] in its entirety”.

142    Likewise, if the Tribunal found that the Statements (or any of them) were exempt documents, it was required to consider whether it would be reasonably practicable to provide an edited copy of the Statements (or any of them) from which the matter that attracted the exemption was deleted.

143    It is convenient to separately consider this issue by reference to, first, the Report, and then secondly, the Statements.

The Tribunal’s reasons in relation to s 37(1)(b)

144    The Tribunal’s consideration of the s 37(1)(b) exemption was addressed in its reasons at [25]-[54]. The focus of the AFP’s submissions, and the Tribunal’s reasons, in relation to s 37(1)(b) was that the witness who had provided each of the Statements was a person who was a “confidential source” within the meaning of s 37(1)(b). Neither the AFP’s submissions to the Tribunal nor the Tribunal’s reasons made clear whether the AFP claimed, or whether the Tribunal found, that any other persons were “confidential sources”. The Tribunal’s conclusions about the application of the exemption in s 37(1)(b) appear to have rested on its finding, recorded at [51], that “the providers of the three statements were ‘a confidential source of information’”.

145    The Tribunal’s conclusions in relation to the “confidential source” exemption in s 37(1)(b) of the FOI Act appear at [51]-[54] of its reasons. In those paragraphs the Tribunal said:

The Effect of Disclosure of the Three Statements

[51] Having found that the providers of the three statements were “a confidential source of information”, it is not a significant further step to conclude that, if the statements were disclosed to the public, then they would disclose the existence or identity of that confidential source. I have had access to the statements each of which contains the name of the statement provider. It follows that if they were disclosed, the identity and existence of the confidential source would be revealed.

The Effect of Disclosure of the Professional Standards Report

[52] I have had access to the Professional Standards Report. It reflects in part the contents of the three statements and it identifies those who made the statements together with others who were involved in the Part V investigation. It follows that if the report were disclosed, the identity and existence of confidential sources would be revealed.

Conclusion as to whether the documents are exempt

[53] There can be no dispute that the third component of s 37(1)(b) is made out, namely that the confidential source is “in relation to the enforcement or administration of the law”. Commander Kennedy gave affidavit evidence that investigations into allegations of misconduct by AFP appointees are conducted under Part V of the AFP Act. I accept his evidence that the statements in question were given in the context of an investigation of a breach of the law.

[54] I conclude that the Four Documents are exempt documents under s 37(1)(b) because if disclosed they would disclose the existence and identity of confidential sources of information.

146    In [51], the Tribunal considered whether the disclosure of the Statements to the public would disclose the existence or identity of the confidential source who provided the Statement. It is clear that, in that paragraph, the Tribunal was simply considering the disclosure of the Statements in full – hence it was easy for the Tribunal to conclude that the disclosure of the Statements would identify the identity and existence of a confidential source because each Statement contained the name of the provider of the statement.

147    In [52], the Tribunal considered whether the disclosure of the Report to the public would disclose the identity and existence of confidential sources. Again, it is apparent that in that paragraph the Tribunal was only considering the Report in its entirety.

148    The submission advanced by the AFP before the Tribunal in relation to s 37(1)(b) (in the AFP Confidential SFIC) was that “information was so contextual that the release of any content” of both the Report and the Statements would be likely to reveal the identity of the sources. That submission was not addressed by the Tribunal at [51]-[54].

149    Up to this point, the Tribunal had considered the application of s 37(1)(b) to both the Report and the Statements, and had found that the Report and each of the Statements was an exempt document by reason of s 37(1)(b), but had not addressed the application of s 22(1) of the FOI Act.

The Tribunal’s consideration of possible redaction

150    The issue of possible redaction of the documents was addressed by the Tribunal at the end of its reasons, at [84]-[85]. The Tribunal said:

OUT OF SCOPE – S 22

[84] Following from my finding that access should be refused to the Professional Standards Report, it is not necessary for me to consider the Respondent’s contention under s 22 of the FOI Act that parts of the Professional Standards Report are irrelevant and outside of the scope of the access request because they do not relate to the investigation of Mr Keelty’s conduct in respect of Roberts-Smith in June 2018. Nevertheless, I accept the Respondent’s contention that part of the Professional Standards Report deals with another topic that does not fall within the scope of the request by the applicant. Therefore, even if I am wrong about s 37(1)(b) and s 47F, and access to the Professional Standards Report should be given to the applicant, I would consider it reasonable to redact that irrelevant material.

[85] Further with respect to s 22 of the FOI Act, there is no basis for redacting information in the statements (such as the identities of the authors or information tending to reveal their identities) because I accept the evidence of Commander Kennedy that the content of each statement is contextual so that the disclosure of any information within would reasonably identify the author or, I would add, could reasonably be expected to do so.

151    The heading, “Out of scope”, seems apt in relation to [84] but not in relation to [85].

152    At [84], the Tribunal was addressing the Report only, and the paragraph evidently proceeded on the basis that the Tribunal had already held that access to the Report should be refused in full on the basis of ss 37(1)(b) and 47F of the FOI Act. (In fact the Tribunal had also held that the Report was exempt under s 47E(c) and (d), even though they were not mentioned at all in [84].)

153    In contrast to [84], the Tribunal at [85] was not addressing the Report but was, rather, addressing the Statements only. The Tribunal in [85] was considering a different aspect of s 22 of the FOI Act – not whether part of the Statements were “out of scope”, but whether it was possible to produce copies of the Statements edited so that giving access to the edited copies would not result in the disclosure of exempt matter. Although s 37(1)(b) was not expressly referred to in [85], it seems clear enough that the Tribunal must have had that provision in mind: hence the added reference to “could reasonably be expected to do so”, which echoes the language of s 37(1)(b).

The Tribunal gave no consideration to the provision of an edited copy of the Report to avoid disclosing material that was exempt by reason of s 37(1)(b)

154    The reasons of the Tribunal do not disclose that it gave any consideration to the question of whether it would be possible to disclose the Report in part, without disclosing information that would reveal the identity or existence of a confidential source or sources. The Tribunal’s reasons do not suggest that it undertook that exercise at all.

155    The findings recorded at [51]-[52] are only about the effect of disclosing the Statements or the Report as a whole. The Tribunal did not make a finding that disclosure of an edited version of the Report, with parts of the text redacted, was not possible.

156    At [84] of its reasons, the Tribunal said that, even if it was wrong about s 37(1)(b) and s 47F, and access to the Report should be given to Mr Bachelard, the Tribunal would consider it reasonable to redact what it regarded as irrelevant material. For the reasons explained at [261]-[270] below, I consider that the Tribunal was wrong in its conclusion that parts of the Report did not fall within the scope of the access request. However, the present relevance of the statement in [84] is that it confirms that the Tribunal’s conclusion in respect of the s 37(1)(b) exemption was that access should be refused to the Report in its entirety.

157    Before that conclusion could be reached, it was incumbent on the Tribunal to consider whether disclosure of an edited version of the Report could be made without revealing the identity or existence of confidential sources. That was especially so where Mr Bachelard had specifically submitted before the Tribunal that the exemption in s 37(1)(b) could not possibly apply to all of the information in the Report.

158    In relation to the Report, the Tribunal did not undertake that task at all. This was an error of law. The complaint made by Mr Bachelard in relation to this aspect of the appeal is established.

Had the Tribunal considered redaction, it could have found that an edited copy of the Report could be provided without revealing the identity of persons whom the Tribunal found to be confidential sources

159    Mr Bachelard’s appeal should be allowed on this ground only if there is a realistic possibility that the Tribunal, if it had performed the task of considering disclosure of an edited version of the Report and the Statements, could have concluded that it was possible and reasonably practicable to prepare a version of those documents with the matter deleted such that the edited documents would not be exempt documents: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT) at 614 [7].

160    For the reasons that follow, I consider that it would have been open to the Tribunal to conclude that it would be possible and reasonably practicable to prepare edited versions of the Report, and of each of the Statements, which would not be exempt documents under s 37(1)(b).

161    In relation to the Report, the Tribunal (at [52]) simply relied upon the fact that disclosure of the Report as a whole would include the names of confidential sources, and never considered whether the provision of an edited version would be possible or practicable. Had it done so, it is likely the Tribunal would have found that disclosure of at least some parts of the Report, beyond the names of the confidential sources themselves, would reveal the identity of those confidential sources. For example, the Report contains descriptions of some parts of the evidence of particular persons, the disclosure of which would very likely reveal the identity of the source because of the content of that evidence. However, it is not possible to know precisely which parts of the report the Tribunal would have found could not be disclosed without revealing the identity of confidential sources.

162    From my perusal of the Report, it seems to me that there are significant portions of the Report in respect of which it is at least arguable that the disclosure of those portions, only, would not reveal the identity or existence of confidential sources. For example (and identifying parts of the Report in broad terms so as not to disclose its content):

(a)    the cover page of the Report makes no reference to any confidential source;

(b)    the Report has a table of contents which makes no reference to any confidential source;

(c)    the Report has an Executive Summary which makes reference to aspects of the procedural history of the investigation to which the Report relates and which describes facts in objective terms that do not reveal the identity of any source;

(d)    the Report has an introductory section that sets out aspects of the history of the investigation and steps taken in the investigation, and which describes background facts in terms that do not reveal the identity of any source (as well as some paragraphs that do identify sources that the Tribunal found to be confidential sources);

(e)    the Report contains a section that describes the role and responsibilities of Mr Jabbour when he held the position of Deputy Commissioner of the AFP and the sources of professional standards that applied to him in that role, in terms that do not disclose the identity of any persons whom the Tribunal found to be confidential sources;

(f)    the Report contains a brief summary of the issues which the investigation considered and the structure of the consideration of those issues in the Report, in terms that do not disclose the identity of, or refer at all to, any persons whom the Tribunal found to be confidential sources;

(g)    the Report contains an overview of the investigation which describes the nature of the investigation and the overall conclusion reached, in terms that do not disclose any confidential source or any information provided by any person whom the Tribunal found to be a confidential source, as well as some references that do identify persons whom the Tribunal found to be confidential sources;

(h)    the Report contains a section dealing with background circumstances leading up to the alleged conduct the subject of the investigation;

(i)    the Report contains a section setting out evidence and findings in relation to the main subject matter of the investigation, some of which is connected with and would identify persons whom the Tribunal found to be confidential sources, and other parts of which could be disclosed without revealing the identity or existence of any such person;

(j)    various parts of the Report refer to relevant legal requirements applicable to the investigation in terms which do not identify any person as a source;

(k)    various parts of the Report refer to the content of media articles which were and are publicly available, in terms that do not identify any person as a source;

(l)    various parts of the Report identify objective facts about certain persons (including facts which were publicly known) without identifying the source of those facts, and without identifying whether or not the persons referred to were themselves sources of information to the investigation; and

(m)    there are parts of the Report that refer to a source of information but it is not clear from the Tribunal’s reasons whether the Tribunal regarded that source as a confidential source.

163    The AFP sought to defend the Tribunal’s conclusion that the Report in its entirety was covered by s 37(1)(b) on the basis that the Report was, in effect, based on the Statements. The AFP submitted:

… the difficulty is that the report itself is the statements. The report is related to the statements … if I can put it that way, such that information in the statements will inform the report, which will then be affected in the same way that the statements are, we would say.

164    There are some parts of the Report that would reveal the identity of the persons who provided the Statements as sources. However, as the overview at [162] above shows, that is not the case in relation to the whole of the Report, or even most of it.

165    In broadly identifying parts of the Report as examples of parts which appear to me to contain information that the Tribunal could conclude is able to be disclosed without revealing the identity or existence of confidential sources, I do not express any ultimate view about the specific conclusions that should be reached in relation to specific parts of the Report – that is, about exactly where “the line” should be drawn.

166    However, there are many paragraphs of the Report which, it appears to me, clearly could be disclosed without directly or indirectly revealing the identity or existence of any sources. The precise way in which any edited version of the Report might be prepared, and what should and should not be included, is an issue on which the Tribunal may need to receive further evidence and/or further submissions from the AFP.

The AFP’s reliance on [69] of the Tribunal’s reasons

167    The AFP submitted that the Tribunal’s decision must be read as a whole and that, in particular, what the Tribunal said at [69] should be understood as providing an indication of the reasons why it held that s 37(1)(b) led to the conclusion that access should be refused to the Statements and the Report in their entirety. That paragraph appears in a separate part of the Tribunal’s reasons dealing with the “personal information” conditional exemption provided for in s 47F of the FOI Act. It reads:

It is my view that the documents in question contain personal information that it would be unreasonable to disclose. There are names and titles and work details recorded in all the documents. There is also a considerable amount of information which if disclosed would identify the individuals involved. I accept the evidence of Commander Kennedy that the content of each statement is contextual so that the disclosure of any information within would reasonably identify the individual. The content of the statements is reflected in the report and it follows that the report contains the same personal information which it would be unreasonable to disclose. The personal information in the report is intertwined with other information such that it cannot be meaningfully separated.

(Emphasis added.)

168    I accept that the reasons of the Tribunal must be read as a whole. However, I do not accept the AFP’s submissions insofar as they suggest that [69] of the Tribunal’s reasons may be understood as a statement of the Tribunal’s reasons for finding that no part of the Report or of any of the Statements could be provided to Mr Bachelard without disclosing the existence or identity of a confidential source. Redacting a document in order to avoid disclosing the identity of a source is a different exercise from redacting to avoid disclosure of personal information, which is what the Tribunal dealt with at [69]. That paragraph appears in a part of the Tribunal’s reasons specifically dealing with s 47F and there are references to s 47F (and no references to s 37(1)(b)) in other paragraphs in that part of the reasons, both preceding and following [69]. The conclusion that the Tribunal’s reasons at [69] were not addressing redaction by reference to s 37(1)(b) is reinforced by the fact that the Tribunal appears to have considered the redaction of the Statements – though not the Report – at [85] of its reasons.

169    Further, even if what was said at [69] of the Tribunal’s reasons were directed to the question of redaction by reference to s 37(1)(b), the Tribunal (had it properly engaged in the exercise required by s 22(1) of the FOI Act) could not reasonably have reached the conclusion that it was not possible, or practicable, to provide an edited copy of the Report that would not be exempt by reason of s 37(1)(b). For the reasons explained at [162]-[164] above, it is clear from a perusal of the Report that there are many paragraphs of the Report that could be disclosed without revealing the identity or existence of any source.

170    If [69] were properly to be understood as expressing a conclusion that the information in the Report that is exempt matter by reason of s 37(1)(b) is so intertwined with other information that there is no practicable way to create an edited version of the Report that would not itself be exempt under s 37(1)(b), then in my view, in light of my perusal of the Report, and for the reasons given at [162]-[164] above, that conclusion would demonstrate that the Tribunal had misunderstood the nature of the exercise required by s 22(1).

The Statements

171    The Tribunal’s decision identified that each of the three Statements is the witness statement of a person whom the Tribunal accepted was a “confidential source”. For the reasons I have explained at [121]-[136] above, I consider that that conclusion was affected by the Tribunal adopting an erroneous view of the legal operation of s 60A of the AFP Act.

172    For the purposes of considering the application of ground 2 in relation to the Statements, I proceed on the basis of the Tribunal’s conclusion that the persons who gave each of the Statements was a “confidential source”.

173    As explained at [153] above, the Tribunal, at [85] of its reasons, did consider whether the Statements could be edited by redacting them in such a way as to remove only the references to the authors’ names or particular limited information that would tend to reveal their identities. Having regard to the content of the Statements, as well as Commander Kennedy’s evidence to which the Tribunal referred, there is good reason to believe that the vast majority of the text in each statement could not be disclosed without revealing the identity of the person whose statement it is. Most of the text in each statement describes what the maker of the statement witnessed or did, in terms which it was open to the Tribunal to conclude would readily enable the maker to be identified as a particular individual.

174    In the case of each statement, however, there are some limited parts of the document which, in my view, clearly could be disclosed without revealing the identity of the source. That is, while it was open to the Tribunal to hold that what might be called the “substantive content” of the statements could not be disclosed without revealing the identity of the makers of the Statements, that conclusion was not reasonably open in relation to limited parts of each of the Statements. In particular:

(a)    there are formal parts of each statement the disclosure of which would not identify the source of the statement; and

(b)    the first and last paragraphs of each of the Statements contain what might be described as “generic” statements, ostensibly identifying the basis on which the maker of the Statement provided it and their understanding as to its use.     

175    In relation to these limited parts of the Statements, it could not reasonably be concluded that their disclosure would result in the identification of the sources of any of the Statements.

176    On a fair reading of [85], the Tribunal may only have been intending to refer to the text of the Statements that contained the specific evidence of the makers of the Statements. In that case, the Tribunal did not ask itself the ultimate question required by s 22(1)(b)(i), namely whether it was possible to prepare an edited copy of the document such that access to the edited copy would be required to be given under s 11A (ie, an edited copy not containing any exempt matter). (I note that, in its reasons at [85] the Tribunal did not suggest that it considered that any part of the Statements contained information “that would reasonably be regarded as irrelevant to the request”, and s 22(1)(b)(ii) was not relied upon by the AFP in relation to the Statements.)

177    Alternatively, if the brief reasons of the Tribunal at [85] are to be construed as addressing that question, in my view the Tribunal reached a conclusion that was not reasonably open to it, because it was possible for copies of the Statements to be prepared that redacted all but the limited parts identified at [174] above.

178    Disclosure of even a heavily redacted version of each of the Statements might well have been of interest to Mr Bachelard. It would have provided an indication of the length of each of the Statements, as well as information about the understanding on which the Statements had been provided. It was not suggested that the “nature and extent” of the modifications or the “resources available to modify the document” were such that it was not “reasonably practicable” to prepare an edited copy of the Statements: see FOI Act, s 22(1)(c).

179    I would uphold Mr Bachelard’s argument on ground 2 in relation to the Statements to the limited extent I have indicated.

Provisional conclusions in relation to ground 2

180    The Tribunal concluded that the Report and the Statements in their entirety were exempt documents by reason of s 37(1)(b) of the FOI Act. In the case of the Report, the Tribunal reached that conclusion without considering whether an edited copy of the Report or the Statements could be provided to Mr Bachelard in accordance with s 22(1) of the FOI Act.

181    In relation to the Statements, the Tribunal did undertake that consideration at [85] of its reasons. It was reasonably open to the Tribunal to conclude that disclosure of the substantive content of the Statements would have the effect of revealing the identity of the maker of the statement. However, it was not reasonably open to the Tribunal to find that it was not possible to produce an edited copy of each of the Statements which contained no information specific to the maker of the statement and which did not tend to reveal their identity.

GROUND 4 – APPLYING EXEMPTIONS NOT RELIED ON BY THE AFP

182    By ground 4, Mr Bachelard contends that the Tribunal erred in law in finding that the Statements were exempt documents under s 47E(c) and (d) in circumstances where the AFP did not rely on either of those provisions before the Tribunal. This ground of appeal immediately relates only to the manner in which the Tribunal dealt with the Statements. However, as explained at [208]-[211] below, it also has consequences in relation to the Tribunal’s decision with respect to the Report.

The issues joined in the Tribunal in relation to s 47E

183    In the AFP Open SFIC at [42], the AFP had submitted that “those parts of [the Report] identified in the schedule as Attachment A are conditionally exempt from disclosure” under s 47E(c) of the FOI Act, and at [50] the same submission was made in relation to s 47E(d). The AFP’s submissions in relation to s 47E, in [42]-[58] of the AFP Open SFIC, made repeated references to the Report and no references to the Statements as documents to which s 47E was claimed to apply. The Schedule, which was designed to identify the grounds of exemption relied upon, indicated that, in relation to the Report, the AFP relied upon the exemptions in ss 37(1)(b), 47E(c) and (d) and 47F of the FOI Act. In contrast, in relation to the Statements, the Schedule indicated that the AFP relied upon only ss 37(1)(b) and 47F. Although the AFP Confidential SFIC was not provided to Mr Bachelard and so could not have affected his understanding of the exemption relied upon, it was consistent with the position of the AFP reflected in the Schedule, in that it contended that s 47E applied in relation to the Report but did not contend that it applied in relation to the Statements.

184    In Mr Bachelard’s SFIC before the Tribunal, the first paragraph under the heading “Alleged conditional exemption: effect on the AFP under s 47E(c)-(d) of the FOI Act” commenced (at [22]) with “The AFP contends that parts of the PRS Report (but not the Statements) are conditionally exempt because …”. It is apparent that Mr Bachelard correctly understood that the exemptions in s 47E(c) and (d) were relied upon in relation to the Report but not the Statements, and was in that paragraph being careful to define the issues before the Tribunal. That is so notwithstanding a later reference in Mr Bachelard’s SFIC to “disclosure of the Statements and/or the PRS Report”.

185    The oral hearing before the Tribunal proceeded on the same basis. In the course of the oral hearing before the Tribunal, no clear suggestion was made by either the AFP or the Tribunal that access to the Statements might be refused in whole or part by reference to s 47E. In the oral submissions made to the Tribunal on behalf of Mr Bachelard in relation to s 47E, express reference was made to the Report but not to the Statements. The oral submissions made on behalf of the AFP in relation to s 47E were brief and did not expressly state whether they related to the Report, the Statements, or both.

186    I accept that Mr Bachelard was not on notice that any reliance would or might be placed on s 47E in relation to the Statements, and that his case in the Tribunal was conducted on that basis.

187    That conclusion is reinforced by the fact that the Tribunal itself was evidently alert to the fact that s 47E(c) and (d) had not been relied upon in relation to the Statements. In its reasons at [59]-[60], the Tribunal said:

[59] With respect to the information in the statements and the Professional Standards Report, Commander Kennedy’s opinion is that, if released, it would have a real and material impact on appointees’ willingness to participate fully and frankly in the Part V investigative process. This evidence is relevant to a consideration of s 47E(c) and (d) with respect to the statements and the Professional Standards Report, although I note that the respondent only relies upon ss 37(1)(b) and 47F and does not rely upon a possible exemption under s 47E(c) and (d) with respect to the statements. Nevertheless, I have considered the operation of ss 47E(c) and (d) with respect to the statements.

[60] The Tribunal’s role is to undertake an inquisitorial review, and it is therefore not obliged to limit its consideration to the case as articulated by the parties. In Grant v Repatriation Commission … , the Full Court of the Federal Court explained, at 6:

18. An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the “case” articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant …

(Emphasis added; footnote omitted.)

188    Two observations should be made about the Tribunal’s reliance on Grant v Repatriation Commission (1999) 57 ALD 1; [1999] FCA 1629 (Grant) for the proposition that the Tribunal is “not obliged to limit its consideration to the case as articulated by the parties”.

189    First, even if it be assumed that the principle that the Tribunal is not obliged to limit its consideration to the case as articulated by the parties applies to reviews under Part VIIA of the FOI Act and, in that context, leads to the conclusion that the Tribunal has the power to refuse access on the basis of an exemption that is not relied upon by the agency, the fact that that power exists does not provide any basis to conclude that the Tribunal is permitted to refuse access to a particular document on the basis of a given exemption in circumstances where the applicant for review is not on notice that the Tribunal is considering refusing access to that document on the basis of that exemption. That is, even if the Tribunal may refuse access in reliance on an exemption which is not “claimed” by the agency, it cannot do so without affording the applicant procedural fairness, to the extent that that can be done consistently with the requirements of the FOI Act.

190    Secondly, a review by the Tribunal of a decision of an agency under Part VIIA of the FOI Act differs in some significant respects from a review of a decision under s 24 of the Veterans’ Entitlements Act 1986 (Cth), which was the review that was considered by the Full Court in Grant. Those differences include the following:

(1)    The review in Grant was purely inquisitorial, and the only party before the Tribunal was the applicant for review of a decision of the Repatriation Commission. In contrast, on an appeal under the FOI Act, the principal officer of the agency to whom the access request was made is a necessary party, and it is to be expected that the primary responsibility for defending the agency’s decision and advancing exemptions and conditional exemptions that are relied upon will fall to that officer. In the present case, the AFP was represented at the Tribunal hearing and the whole hearing was conducted on a basis that was, at least “in many ways practically”, adversarial: cf Korat v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 303 FCR 261; [2024] FCAFC 59 at 275 [59].

(2)    The decision under review in Grant required the making of a decision as to whether the statutory criteria in s 24(2A) of the Veterans’ Entitlements Act were met, and the issue on the review was whether the material before the Tribunal did, or did not, demonstrate that the applicant met those criteria. The issues for the decision of the Tribunal in Grant were thus defined by the binary nature of the decision which the Tribunal had to make. In contrast, the FOI Act permits an agency to refuse access to a document on the basis of a wide range of different provisions, each of which would normally be identified by the agency in its original decision or in the process of defining the issues for consideration by the Tribunal.

(3)    Sections 58B, 58E and 60A(1)(a) of the FOI Act are all cast in terms that suggest that it is necessary to be able to identify, in advance of the constitution of the Tribunal for the final hearing of a review under Part VIIA, the particular provisions under which documents are “claimed” to be exempt documents. This suggests a role for the “claims” of the agency in defining the issues for decision on such a review.

(4)    On a review of a decision under s 24 of the Veterans’ Entitlements Act, as is the case in most proceedings before the Tribunal, there is no “onus” on any party. In contrast, s 61 of the FOI Act expressly places the onus on the agency to which the access request was made to establish that the agency’s decision was justified. This suggests that an applicant for review of an FOI access refusal is entitled to proceed on the basis that the agency will identify (or the Tribunal may identify and the agency may adopt) any applicable exemption in respect of which it seeks to discharge its onus.

191    It is not necessary in this case to decide whether these differences have the consequence that the Tribunal on a review under Part VIIA can never raise and rely upon a distinct ground of exemption that has not been relied on (or at least adopted) by the agency before the Tribunal.

192    That is because, for the reasons given below, the Tribunal’s determination that the Statements were exempt by reason of s 47E(c) and (d) was made in breach of procedural fairness.

Mr Bachelard was denied procedural fairness

193    On a review of an agency decision to refuse access to documents sought under the FOI Act, the Tribunal will often be required to make its decision having regard to information that cannot be disclosed to the applicant. The hearing rule of procedural fairness must necessarily be modified to the extent necessary to accommodate this feature of the scheme created by the FOI Act. The most important modifications to the ordinarily rules of procedural fairness are embodied in s 63 of the FOI Act, which (relevantly for present purposes) provides:

63 Tribunal to ensure non‑disclosure of certain matters

(1)     In determining whether the Tribunal is satisfied that it is desirable to make an order or orders under subsection 35(2), (3) or (4) of the Administrative Appeals Tribunal Act 1975, the Tribunal must:

(a)     have regard to:

(i)     the necessity of avoiding the disclosure to the applicant of exempt matter contained in a document to which the proceedings relate; and

(ii)     the necessity of avoiding the disclosure to the applicant of information of the kind referred to in subsection 25(1); and

…

(2)     Notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975:

(a)     the Tribunal shall not, in its decision, or reasons for a decision, in a matter arising under this Act, include any matter or information of a kind referred to in paragraph (1)(a); and

(b)     the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his or her representative where it is necessary to do so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in paragraph (1)(a).

194    Most relevantly, s 35(4) of the AAT Act empowers the Tribunal to make orders prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that relates to a proceeding, that comprises evidence, that is about evidence, or that has been lodged with or otherwise given to the Tribunal. In considering whether to exercise that power, s 35(5) requires the Tribunal to take as the basis of its consideration the principle that it is desirable that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and that the contents of documents lodged with the Tribunal should be made available to all the parties.

195    It is usual, in proceedings in which review is sought of an agency’s decision to refuse access to documents requested under the FOI Act, for the agency to produce to the Tribunal any documents identified by the agency as documents to which the request applies. Consequently, it will almost invariably be necessary to make orders under s 35(4) of the AAT Act to prevent the disclosure to the applicant of the very documents (or parts of documents) to which the agency has refused access, if and for so long as there remains a dispute as to whether access to those documents (or particular parts of them) should be refused. It may not always be necessary to make orders preventing the disclosure of those documents to the applicant’s representatives, if that can be done on a basis that will not result in the disclosure of the documents or their contents to the applicant. Depending on the nature of the exemptions relied upon and what can be gleaned from the face of the documents themselves, it will also commonly be necessary for the Tribunal to allow the agency to adduce evidence, and sometimes also to hear argument, in the absence of the applicant and/or their representative for the same reasons, as contemplated by s 63(2)(b) of the FOI Act.

196    However, the hearing rule of procedural fairness is not wholly displaced by s 63 of the FOI Act. The Tribunal should be especially vigilant to afford an applicant procedural fairness to the greatest extent possible while recognising that complying with all of the usual requirements of the hearing rule may be prevented by s 63 of the FOI Act and the public policy considerations that underpin the exemptions and conditional exemptions in the FOI Act.

197    Compliance with the hearing rule of procedural fairness ordinarily requires, at the least, that a party be put on notice of the issues to be considered and decided. The High Court explained this requirement in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at 207 [83] in the following terms:

Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person [SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at 162 [32] quoting Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-1; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at 95-6 [14]-[17]; explaining Kioa v West (1985) 159 CLR 550 at 629].

198    Applied to a review of an agency’s decision to refuse access to documents under the FOI Act, this aspect of the procedural fairness hearing rule would ordinarily require that an applicant for review be put on notice of the exemptions or conditional exemptions on which the agency relies in the Tribunal in relation to each document.

199    It is difficult to see that the necessity of avoiding the disclosure to an applicant of exempt matter could ever require the Tribunal to conduct a hearing in such a way that the applicant was not informed, in advance of the decision of the Tribunal, of the nature of the exemptions or conditional exemptions which the Tribunal may decide apply. In any event, there was certainly no reason in the present case why Mr Bachelard should not have been put on notice that the Tribunal might find that access to the report should be refused on the basis of the conditional exemptions provided for in s 47E(c) or (d) of the FOI Act.

200    The effect of the approach taken by the Tribunal at [59]-[60] was to determine that the Statements were exempt on the basis of an exemption that had not been identified as being “in play” by either the AFP or the Tribunal. The manner in which the review was conducted by the AFP provided a positive basis for Mr Bachelard to understand that s 47E was not relied on in relation to the Statements, and his own SFIC expressly confirmed that he was indeed proceeding on that basis.

201    For the Tribunal to proceed to determine that the Statements were exempt by reason of s 47E(c) and (d) in circumstances where Mr Bachelard was not fairly on notice that those provisions were in issue amounted to a denial of procedural fairness.

202    Even though it is not necessary for the applicant, on an appeal from the Tribunal on a question of law, to establish jurisdictional error, as opposed to error of law, the Court would not ordinarily allow the appeal on this ground unless satisfied that the denial of procedural fairness was material in the sense that there is a reasonable possibility that the decision of the Tribunal could have been different had the errors not been made: LPDT at 614 [7], 615 [14].

203    In Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26, Kiefel CJ, Keane and Gleeson JJ said (at 103 [33]):

There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

204    To similar effect, in LPDT, Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ said (at 616 [15]):

Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained.

(Citations omitted.)

205    The denial of procedural fairness in this case was material. Its effect was that Mr Bachelard was not on notice of a significant issue which the Tribunal decided adversely to him. In those circumstances, the analysis must proceed on the assumption that, if put on notice of that issue and given a fair opportunity to respond to it, Mr Bachelard might have taken advantage of that opportunity and might have addressed the issue, whether by way of further evidence or submissions. In this case, Mr Bachelard made forensic decisions in the hearing before the Tribunal, including electing not to cross-examine Commander Kennedy, on the understanding that s 47E(c) and (d) were only relied upon in relation to the Report. Had he been on notice that s 47E(c) and (d) were relied upon not only in relation to the Report but also the Statements, different forensic decisions might have been made. It is not necessary for Mr Bachelard to establish that he would have conducted the Tribunal proceedings differently.

206    I doubt it is necessary to extend the analysis any further but, if it is, I would accept that it is open, as a matter of reasonable conjecture, to consider that Mr Bachelard could have made a different decision regarding the cross-examination of Commander Kennedy had he appreciated that the Tribunal might rely upon Commander Kennedy’s evidence to refuse access not only to the Report, or parts of the Report, but also to the Statements. Further, had the Tribunal or the AFP suggested in argument that the exemptions in s 47E(c) or (d) provided a basis on which access should be refused to the Statements, Mr Bachelard might well have responded by way of submissions. These might have included a submission that the contention was not apparent from the AFP Open SFIC or the Schedule, that Mr Bachelard had conducted his case before the Tribunal (including in relation to the making of forensic decisions) on the understanding that s 47E was relied on only in relation to the Report, and that the Tribunal should not consider it in connection with the Statements.

Conclusions in relation to ground 4

207    For these reasons, I would uphold the complaint which forms the basis for ground 4 of Mr Bachelard’s appeal.

208    My acceptance that Mr Bachelard was denied procedural fairness in relation to the application of s 47E(c) and (d) to the Statements, and my finding that that denial of procedural fairness could have affected the forensic choices that could have been made by Mr Bachelard, has a further consequence. Had Mr Bachelard been put on notice that s 47E was relied on in relation to the Statements, and had he made different forensic choices, the evidence before the Tribunal might have been different. In particular, it is not possible to speculate about the precise potential effect on the Tribunal’s assessment of Commander Kennedy’s evidence had he been cross-examined.

209    If the matter were now to be remitted to and reconsidered by the ART, the evidence before the ART which is relevant to the application of s 47E(c) and (d) may be different.

210    If the finding of the Tribunal in relation to the application of s 47E(c) and (d) to the Report were allowed to stand, the potential would arise for inconsistency between the evidential and factual basis on which the ART ultimately determines the application of s 47E(c) and (d) to the Statements and the evidential and factual basis on which the Tribunal determined the application of those provisions to the Report. That is an unsatisfactory state of affairs which supports the conclusion that, if Mr Bachelard’s success on ground 4 should lead to the Tribunal’s conclusion about the application of s 47E(c) and (d) to the Statements being set aside, the appropriate course would be to set aside all of the conclusions of the Tribunal about s 47E (including in relation to the Report) so that the ART can consider that exemption afresh.

211    Further, it is in any event unsatisfactory that the Tribunal’s conclusions regarding the application of s 47E(c) and (d) to the Report should be permitted to stand in circumstances where they were the product of findings based on evidence that could have been different had the Tribunal not denied Mr Bachelard procedural fairness in the proceedings before the Tribunal – even though the denial of procedural fairness related directly to the Tribunal’s consideration of the Statements rather than the Report.

GROUND 5 – FAILING TO CONSIDER REDACTION OR PARTIAL DISCLOSURE IN RELATION TO PREJUDICE TO OPERATIONS OF AGENCY

212    By his fifth ground of appeal, Mr Bachelard contends that the Tribunal erred in law in finding that the Report and the Statements in their entirety were exempt under s 47E(c) and (d), and failing to consider and/or apply redactions.

Relevant parts of the Tribunal’s reasons

213    After setting out s 47E(c) and (d) and two passages from the FOI Guidelines in relation to those provisions, the Tribunal at [58] of its reasons set out the affidavit evidence of Commander Kennedy on which the Tribunal relied in relation to “the impact of the disclosure of” the Report and the Statements.

214    The Tribunal then summarised Commander Kennedy’s opinion with respect to s 47E(c) and (d) at [59] of its reasons. I reproduce the relevant part of that paragraph again here:

With respect to the information in the statements and the Professional Standards Report, Commander Kennedy’s opinion is that, if released, it would have a real and material impact on appointees’ willingness to participate fully and frankly in the Part V investigative process. This evidence is relevant to a consideration of s 47E(c) and (d) with respect to the statements and the Professional Standards Report … .

215    The conclusions of the Tribunal in relation to s 47E(c) and (d) were set out in [61] of its reasons, as follows:

The statutory regime under Part V of the AFP Act and the evidence from Commander Kennedy as to the practice of the AFP’s Professional Standards Investigation Unit provide support for a finding that the management of personnel and the conduct of the AFP’s operations would be adversely affected by a failure to maintain confidentiality over the statements and the Professional Standards Report. The principal effect would be to discourage full and frank participation in any investigation. I have no doubt that members of the AFP participating in what amounts to a sensitive and confidential investigation about conduct of a fellow AFP member would be reluctant to participate fully with the utmost candour if their statement were to be made public. I consider this to be the case even if the member was under some obligation to participate because the extent of their participation and willingness to help would most likely be diminished. With respect to s 47E(c), there would be an impact on the management of personnel and in particular their discipline. With respect to s 47E(d), there would be an impact on the AFP’s proper and efficient conduct of operations relating to professional standards investigations under Part V of the AFP Act. I consider the impact to be a substantial adverse effect in terms of both s 47E(c) and (d) because of the negative impact arising from a breach of expected confidentiality which underpins the effective operations of command at the AFP. It follows that the documents are conditionally exempt under s 47E.

216    At [73]-[83], the Tribunal considered the issue of whether the disclosure of the Report and the Statements would be in the public interest. It did so compendiously for the purposes of all of the conditional exemptions which the Tribunal had found to be applicable, namely ss 47E(c) and (d) and 47F. The Tribunal’s conclusion at [82]-[83] was expressed as follows:

[82] In terms of weighing up the factors for and against granting access to these documents, I give greater weight to the need for confidentiality over these documents so as to maintain the effectiveness and integrity of future investigations under the AFP Act. I conclude that granting access to these documents would, on balance, be contrary to the public interest.

[83] I conclude that the respondent’s alternative claims under s 47E(c) and (d) and 47F are made out and that the Four Documents are exempt from disclosure.

217    By this stage of its reasons, the Tribunal had not given any consideration, in the context of s 47E(c) and (d), to the questions of:

(a)    what particular matter within the Report or the Statements was exempt matter;

(b)    whether there were any parts of either the Report or the Statements that did not constitute exempt matter;

(c)    whether it would be possible to create edited copies of the Report, or any or all of the Statements, that would not contain exempt matter; or

(d)    whether it was reasonably practicable to do so.

The Report

218    In relation to the Report, the Tribunal did not address the question of whether access could be given to an edited copy of the Report that was redacted so as to avoid the disclosure of information that would reasonably be regarded as irrelevant to the request for access. It did not engage in that task at all.

219    Given that the existence of the investigation itself had been publicly confirmed by the AFP, it is at least seriously arguable that the disclosure of significant portions of the Report, only, could not possibly have had a substantial adverse effect on the management or assessment of personnel by, or the proper and efficient conduct of the operations of, the AFP. Notably, many of the parts of the Report which I have described at [162] above contained information about the investigation which did not reveal anything about the content of particular information provided by persons who participated in the investigation as witnesses. It follows that the Tribunal’s failure to consider the disclosure of an edited copy of the Report was material insofar as its decision to refuse access to the Report rested on s 47E(c) and (d).

220    For these reasons, in relation to the Report, I would uphold ground 5 of the appeal.

The Statements

221    The only consideration of the possible redaction of the Statements appears at [69] and [85] of the Tribunal’s reasons.

222    As explained at [167]-[169] above, the Tribunal at [69] of its reasons was considering the issue of redaction to avoid disclosing personal information. The Tribunal did not address itself to the question of redaction in the context of s 47E(c) and (d) at [69].

223    The Tribunal at [85] was evidently referring to s 37(1)(b), not s 47E. That is clear from the reference to information that “would reasonably identify the author or … could reasonably be expected to do so”. The Tribunal did not at any point in [85] of its reasons make reference to s 47E(c) or (d) or to any of the words of either of those provisions.

224    For these reasons, I conclude that the Tribunal did not consider the application of redactions to the Statements at all in the context of s 47E(c) and (d). I would therefore also uphold ground 5 in relation to the Statements.

GROUND 3 – MISCONSTRUCTION OF EXEMPTION RELATING TO PREJUDICE TO OPERATIONS OF AGENCY

225    By ground 3 of the appeal, Mr Bachelard contends that the Tribunal misconstrued or misapplied s 47E(c) and (d) in finding (at [61]) that disclosure of the Report and the Statements would have a substantial adverse effect on the proper and efficient conduct of the operations of the AFP. He contends that the material before the Tribunal was not capable of supporting that finding, and that the Tribunal overlooked or failed to consider relevant facts.

226    In light of my conclusions in relation to grounds 4 and 5, it is not necessary to determine ground 3, which also relates to the Tribunal’s consideration of s 47E(c) and (d). The effect of my conclusion in relation to grounds 4 and 5 is that the Tribunal’s conclusions in relation to s 47E(c) and (d) were affected by relevant error. If the Tribunal is to reconsider the application of s 47E to the Report and the Statements, it will undertake that task afresh, on the basis of such evidence as the parties put before the Tribunal (which may differ from the body of evidence on which the Tribunal made the decision that is presently under review). It is not necessary to reach a conclusion as to whether the material available to the Tribunal was capable of supporting the conclusions it reached, or whether the errors alleged by Mr Bachelard under ground 3 were of a kind that could properly be raised on an appeal on a question of law.

GROUND 6 – MISCONSTRUCTION OF EXEMPTION RELATING TO UNREASONABLE DISCLOSURE OF PERSONAL INFORMATION

227    By his sixth ground of judicial review, Mr Bachelard contends that the Tribunal misconstrued or misapplied s 47F of the FOI Act in finding that the Statements and the Report, in their entirety, were conditionally exempt because they contained personal information which it would be unreasonable to disclose.

228    For the reasons that follow, I consider that the approach of the Tribunal was affected by an error of law in relation to the construction and application of s 47F.

229    The conditional exemption in s 47F applies where the disclosure of a document under the FOI Act “would involve the unreasonable disclosure of personal information about any person”. An important part of the reasoning of the Tribunal in relation to s 47F appears at [71] of its reasons, where the Tribunal said:

I have already found that there was no publicly available information that Gaughan, Colvin and Ryan were involved in any investigation or had provided statements to any such investigation. Despite what is assumed as fact by the applicant, it cannot be said based on the publicly available information that the persons to whom the information relates are known to be associated with the matters dealt with in the documents. [fn: FOI Guidelines at [6.140(b)].] Nor can it be said that the information is well known or is available from publicly accessible sources. To the contrary, the information in the documents has never been publicly released and is subject to a strict confidentiality regime. No public purpose would be achieved through release of the information, but rather, it would have an adverse effect on management of personnel and on AFP operations, as I have found above.

(Emphasis added.)

230    The italicised passage included a finding by the Tribunal that no public purpose would be achieved through the release of information. The Tribunal then weighed that consideration in the balance against its finding (already made in relation to the s 47E exemption) that the release of the information would have an adverse effect on the management of personnel and on AFP operations. This part of the Tribunal’s reasons was directed to the question of whether the disclosure of personal information contained in the Statements and the Report would be “unreasonable”.

231    The Tribunal evidently made an assessment that the release of the information in the Report and the Statements “would serve no public purpose”. In my view, the nature of the information in the Report was such that, consistently with commitments on which the FOI Act is premised, it was not open to the Tribunal to proceed on that basis.

232    Section 3 of the FOI Act sets out its objects. One object is to give the Australian community access to information held by the government of the Commonwealth by providing for a right of access to documents: s 3(1)(b). Section 3(2)(b) recites that the Parliament intends, by providing such access, to promote Australia’s representative democracy by contributing to “increasing scrutiny, discussion, comment and review of the Government’s activities”. Implicit in s 3 is a recognition that the promotion of scrutiny, discussion, comment and review of the activities of the Commonwealth government and its agencies, and the conduct of those performing functions on their behalf, is a public purpose. The disclosure of information about those activities and that conduct serves that public purpose.

233    Consistently with these observations, in McKinnon v Secretary, Department of the Treasury (2006) 228 CLR 423; [2006] HCA 45, Gleeson CJ and Kirby J said (at 433 [19]):

… under the FOI Act, … the matter of disclosure or non-disclosure is not approached on the basis that there are empty scales in equilibrium, waiting for arguments to be put on one side or the other. There is a “general right of access to information … limited only by exceptions and exemptions necessary for the protection of essential public interests [and other matters not presently material]” (s 3(1)(b)). … To lose sight of that would be to lose sight of the principal object of the FOI Act.

Their Honours were in dissent in the result, but nothing said by the judges in the majority contradicted this proposition. Justice Hayne (in the majority) accepted (at 443 [53]) that the provisions of the FOI Act “must be construed in a way that promotes the object of the Act” and, in particular, “in a way that promotes access to documents in the possession of a Minister or Department”.

234    Some information held by agencies of the Commonwealth may be entirely private in nature; for example, some agencies may hold extensive information of a private nature relating to individuals, which does not itself relate to the conduct of, or performance of duties by, public officers. The information in the Statements and the Report requested by Mr Bachelard is not information of that kind.

235    The subject matter of the Report and the Statements is plainly such that there is a public interest that weighs in favour of its release. The persons whose “personal information” the Tribunal was considering were current or former AFP appointees and the “personal information” itself was information relating not to their private conduct but to their conduct, and the conduct of others, as AFP appointees and in relation to an official investigation conducted under Part V of the AFP Act. The public purposes served by the release of the information were the public interests in transparency and accountability of government agencies and public officers.

236    None of this is to say that the Tribunal was necessarily bound to hold that those public purposes outweighed the private interests of the persons concerned in the non-disclosure of personal information relating to them, so as to lead inevitably to a conclusion that the disclosure of the personal information would not be unreasonable. Nor is it to deny that there were other public interests that were to be weighed against, and might ultimately be held to outweigh, the public interest in transparency. But it was not open to the Tribunal, consistently with the objects of the FOI Act and on a correct understanding of s 47F of the FOI Act, to proceed on the basis that no public purpose would be served by the disclosure of the information in the Report or the Statements.

237    For these reasons, the reasons of the Tribunal with respect to the Statements were affected by legal error. I would uphold ground 6 of the appeal. It is not necessary to address the other arguments advanced by Mr Bachelard in relation to ground 6.

238    Further, for the reasons I have already explained above at [121]-[136], I consider that the Tribunal proceeded on the basis of a misunderstanding of the legal effect of s 60A of the AFP Act. The Tribunal’s reference, in [71], to “the information in the documents” being “subject to a strict confidentiality regime” is a reference to its earlier findings which I consider were affected by error. For this reason, the error identified in connection with ground 1 also must have affected the Tribunal’s consideration of s 47F.

GROUND 7 – MISCONSTRUCTION OR MISAPPLICATION OF THE PUBLIC INTEREST TEST

239    By his seventh ground of appeal, Mr Bachelard complains that the Tribunal misconstrued or misapplied the public interest test under s 11A(5) of the FOI Act in finding that disclosure of the Statements and the Report would be contrary to the public interest.

240    The Tribunal’s finding, made at [71] of its reasons, that “no public purpose would be achieved” by the disclosure of the information in the Report and the Statements, has been addressed at [229]-[237] above. Although that finding was recorded in the part of the Tribunal’s reasons in which it addressed the question of whether the disclosure of personal information would be “unreasonable”, the Tribunal’s conclusion must also inevitably have borne on the Tribunal’s assessment of the public interest, and the error must have affected that assessment as well.

241    It is not otherwise necessary to decide this ground or to consider the arguments advanced in support of it, given my conclusions above that:

(a)    the Tribunal’s consideration of the application of the s 47E(c) and (d) conditional exemptions in relation to the Statements was affected by error because the Tribunal denied Mr Bachelard procedural fairness in relation to that issue, and the Tribunal’s decision in relation to the application of s 47E(c) and (d) to the Report and the Statements could have been different had it not done so (see [183]-[206]);

(b)    the Tribunal failed to consider redactions in relation to the Report or the Statements in connection with the application of s 47E(c) and (d) (see [212]-[224]); and

(c)    the Tribunal’s consideration of the application of the s 47F exemption in relation to both the Report and the Statements was affected by error (see [227]-[238]).

GROUND 8 – FINDINGS THAT PARTS OF THE REPORT WERE IRRELEVANT TO THE REQUEST

242    By ground 8, Mr Bachelard contends that the Tribunal erred in finding that parts of the Report were irrelevant and outside the scope of the request. Mr Bachelard made two arguments in relation to this issue. First, he submitted that the Tribunal misinterpreted the request. Secondly, he submitted that the Tribunal had failed to consider and address Mr Bachelard’s arguments in relation to this issue. For the reasons that follow, I accept both of these submissions.

243    This ground of appeal relates only to the Report and not to the Statements.

244    The passage of the Tribunal’s reasons about which Mr Bachelard complains is found in that section of the reasons in which the Tribunal addressed the application of s 22 of the FOI Act. It should be noted that the Tribunal had, earlier in its reasons, determined that the Report was wholly exempt from disclosure by reason of the exemption in s 37(1)(b) and the conditional exemptions in each of ss 47E(c) and (d) and 47F. The Tribunal’s consideration of this issue therefore appears to have proceeded on the basis that it was not necessary for the Tribunal to determine whether there was information that was beyond the scope of the request. That may partly explain why the Tribunal’s consideration of s 22 was so cursory. The brevity of the Tribunal’s reasons on this issue may also have been influenced by an appreciation of the need to avoid describing particular parts of the report in terms that would reveal its content, given that the Tribunal had already held that access should be refused in full.

245    For the reasons I have already given above, I consider that the Tribunal’s decision with respect to each of the exemptions and conditional exemptions was affected by errors of one kind or another. The Tribunal’s hypothetical consideration of the scope of the request for the purpose of s 22 of the FOI Act therefore potentially assumes greater importance.

246    In any event, since, in the view I take, the matter should be remitted to the ART to be reconsidered afresh, it is appropriate to determine whether the Tribunal’s approach to this issue was affected by error.

247    The reasons of the Tribunal relating to the scope of the request are set out in [84] of its reasons. It is convenient to set that paragraph out again here:

Following from my finding that access should be refused to the Professional Standards Report, it is not necessary for me to consider the Respondent’s contention under s 22 of the FOI Act that parts of the Professional Standards Report are irrelevant and outside of the scope of the access request because they do not relate to the investigation of Mr Keelty’s conduct in respect of Roberts-Smith in June 2018. Nevertheless, I accept the Respondent’s contention that part of the Professional Standards Report deals with another topic that does not fall within the scope of the request by the applicant. Therefore, even if I am wrong about s 37(1)(b) and s 47F, and access to the Professional Standards Report should be given to the applicant, I would consider it reasonable to redact that irrelevant material.

248    It will be noted that the Tribunal stated that “part of the Professional Standards Report deals with another topic that does not fall within the scope of the request by the applicant”. The content of that finding cannot be appreciated without having regard to the Report itself and to the AFP Confidential SFIC that was before the Tribunal.

249    The AFP Confidential SFIC, and the marked-up copy of the Report that was provided to the Tribunal, identified parts of the Report which the AFP claimed were outside the scope of the request. The AFP submitted that we should interpret the Tribunal’s reasons at [84] as indicating that it had accepted that all the parts of the report identified by the AFP in the AFP Confidential SFIC and the marked-up copy of the Report were outside the scope of the request. There is some difficulty with that because it is not apparent that all the parts of the Report which the AFP claimed were outside the scope of the request could sensibly be described as dealing with “another topic”, in the sense of a single discrete topic other than the conduct of Mr Keelty.

The submissions of the parties in the Tribunal in relation to the scope of the request

250    In order to understand what the Tribunal accepted at [84] of its reasons, it is necessary to understand the submissions of the AFP.

251    The issue of the application of s 22(1)(a)(ii) was addressed at some length by the parties in their oral submissions before the Tribunal. Counsel for Mr Bachelard identified the fact that the application of s 22(1)(a)(ii) was in issue. He pointed out that he was in the difficult position of not having any information about the basis on which the AFP claimed that parts of the document were irrelevant. He then submitted:

… the important factor in my submission for the tribunal when considering an irrelevancy ground is the scope of the request. And I’ve already taken you, Deputy President, to the scope of this request which sought the entire report. So any attempt by the AFP to limit the question of relevance to the scope of the request, in my submission, it would fail. This is quite plainly a request for the entirety of the report about the subject matter. It is not seeking and is not limited to the reporting so far as it deals with this specific issue of the disclosure. It is a request for the entirety of the report as I’ve indicated. … So we say it’s quite wrong for the AFP to say, as it does in its submission, that the request is limited to those matters within the report that are relevant to Mr Keelty’s conduct in respect of Mr Roberts-Smith in June 2018. We say that’s quite wrong, that this report deals with the subject matter. It should be provided in its entirety. It’s not limited to any particular topics. It seeks the entirety of the report. … [W]e do say, as I’ve said, that this is a request that’s not limited by subject matter. The request for the entirety of the report.

252    Counsel for Mr Bachelard emphasised that there was no basis in the FOI Guidelines for reading a request narrowly.

253    In relation to this issue, the AFP’s counsel before the Tribunal drew attention to what the AFP had said in the AFP Open SFIC at [17]-[22]. The crux of that submission appeared at [20] of the AFP Open SFIC:

To the extent the Professional Standards Report discusses matters other than the AFP’s Professional Standards Investigation Unit’s (PRS’s) investigation of Mr Keelty’s conduct in respect of Mr Roberts-Smith in June 2018, the information is outside the scope of the access application and access ought be refused under section 22(1)(a)(ii) of the FOI Act on the basis that it is irrelevant to the access application.

254    The issue was addressed by counsel for the AFP in her oral submissions. In the course of those submissions, the Tribunal asked her:

… isn’t that just a way of identifying the whole of the report? It’s not specifically saying, “We’re only interested in the report insofar as it relates to Mr Keelty’s interaction.” It’s just a way of identifying the whole of the report. … What’s the intention behind it?

255    Counsel for the AFP submitted:

… that might have been the intention, but that’s not – we submit – that’s not reasonably what it says. It says it’s a report by the professional standards command about this particular subject matter. So to the extent the report talks about other matters, that’s not what’s asked for.

256    However, the Tribunal later said:

I must admit, on my reading of that, unless it is established from looking at the report that for some reason this report, I guess, dealt with matters that are completely unrelated to anything to do with the three individuals and Mr Keelty and Mr Roberts-Smith, then it seems that the request is for the report and that the qualification, namely, about Mr Keelty’s interaction with serving members is just a method of identifying the whole of the report. And in which case, I think that the interpretation that, perhaps, your – that the AFP is giving to it is unduly narrow in terms of the scope.

(Emphasis added.)

257    In response to this, counsel for the AFP submitted:

Thank you, Deputy President, for that indication. In my submission, it will depend on the content of those parts of the report. … It’s a factual question, I think.

258    This submission appears to me to have conflated two distinct questions. The first question related to the sense of the request (sometimes referred to in Australian legal discourse as the “connotation”) – that is, the “essential meaning” of the words used in the request; its proper interpretation. The first question was whether the request was properly to be interpreted as:

(a)    a request for the whole of the identified document, the Report (with the description of the subject matter being provided simply to identify which report was being referred to); or

(b)    a request for the Report but only insofar as it addressed or was related to the identified subject matter.

259    The second question, which could only be answered after the first had been resolved, related to the referents of the request (sometimes referred to as the “denotation”) – the “application” of that “essential meaning” to things in the world. As to the distinction generally, see, eg, Matthews v Chicory Marketing Board (Vict) (1938) 60 CLR 263 at 293, 299 (Dixon J); Clubb v Edwards (2019) 267 CLR 171; [2019] HCA 11 at 318 [425] (Edelman J).

260    If the essential meaning of the request was “the Report” as an entire document, then any assumption or belief Mr Bachelard may have had about the nature or subject matter of the information that would be found in the Report was irrelevant to the scope of his request, except insofar as his reference to it tended to assist in identifying the document he was referring to. In that case, the question of whether parts of the Report were beyond the scope of the request could not arise. On the other hand, if the request were limited to the Report insofar as it dealt with a particular subject matter, then whether any particular part of the Report was within the scope of the request could not be ascertained without considering the content of the Report.

On its proper interpretation, the request was for the Report as a whole

261    The conclusion about the proper interpretation of an FOI request will always depend upon the terms of the request and the context in which it is made. In the present case, the request made by Mr Bachelard expressly stated that what was sought was, relevantly, “the final report by AFP Professional Standards Command about Mr Keelty’s interaction with serving members of the AFP”.

262    There was no grammatical ambiguity in the phrase chosen by Mr Bachelard to describe the ambit of his request. The natural grammatical meaning of the request was that it sought a particular document – the “report”, that being the head of the noun-phrase used by Mr Bachelard. The words “about Mr Keelty’s interaction with members of the AFP”, like the other words in the phrase, served to identify which report. They are descriptive. They are not words that restrict the scope of the request to something narrower than the whole Report: had that been intended, one might have expected Mr Bachelard to have used an expression such as “insofar as it relates to Mr Keelty’s interaction with members of the AFP” or “limited to information about Mr Keelty’s interactions with members of the AFP”.

263    The ordinary grammatical meaning of the terms of the request is reinforced by the consideration that one of the requirements for the making of a valid request under s 15(2)(b) of the FOI Act is that the request must “provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it”. In that statutory context, and given that there were obviously likely to be many “final reports” made by the AFP Professional Standards Command, it is natural that Mr Bachelard should seek to identify the particular document he was referring to by reference to something he knew about its likely content. Indeed, it is difficult to see how else he could have adequately described that particular document to enable it to be distinguished from other reports. Moreover, the brief language chosen by Mr Bachelard (“about Mr Keelty’s interaction with serving members”) is more consistent with the objective of enabling the document sought to be identified than with an attempt to describe exhaustively the substantive content of information that was sought by the request. It is to be recalled that Mr Keelty was not a serving AFP appointee.

264    For these reasons, I conclude that the true scope of Mr Bachelard’s request, properly construed, was for the document constituting the Report. The Tribunal erred insofar as it accepted that Mr Bachelard, by including the words “about Mr Keelty’s interaction with members of the AFP”, was seeking to limit his request to particular parts of the Report that dealt with that topic.

The Tribunal’s failure correctly to identify the scope of the request involved an error on a question of law

265    The concept of a “request for access” is central to the FOI Act. Section 15(1) entitles a person who wishes to obtain access to a document of an agency to “request access to the document”. Section 15(2) sets out particular requirements that the request must meet. Relevantly, s 15(2) requires that a request must “provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency … to identify it”. It is implicit in this provision that each “request” is for a particular document (or multiple documents) that is capable of being “identified” – that is, identified as the document that is the subject of the request.

266    Section 11(1)(a) provides that, subject to the FOI Act, every person has a legally enforceable right to obtain access in accordance with the FOI Act to a document of an agency, other than an exempt document. Section 11A(1)(a)(i) provides that s 11A applies “if a request is made by a person, in accordance with subsection 15(2), to an agency … for access to … a document of the agency”. Section 11A(3) provides that the agency “must give the person access to the document in accordance with this Act”, subject to s 11A. The reference in s 11A(3) to “the document” is to the document that is the subject of the request made under s 15(2). This is reinforced by the terms of s 15(7), which speak of “the document that is the subject of the request”. The effect of these provisions is that the right of a person to obtain a document is defined, in part, by the “request”. It is the request that identifies the document (or documents) which an agency is required to search for, consider and, ultimately, provide access to in accordance with the FOI Act.

267    Other provisions of the FOI Act also refer to a “request for a document”, and impose obligations on agencies in relation to “the document”: see, eg, ss 24, 24A. In so doing, they appear to assume that there is an objectively identifiable document that is “the document” the subject of the request. Similarly, s 21 speaks of “the provision of access to the document concerned”.

268    The task that the Tribunal is required to perform in order to give effect to s 22(1)(b)(ii) is to assess whether an edited copy of a document can be prepared such that “the edited copy would not disclose any information that would reasonably be regarded as irrelevant to the request”. Given that the FOI Act generally proceeds on the assumption that the request is for a particular objectively identifiable document, I would not construe s 22(1)(b)(ii) as committing to the decision-maker the question of what constitutes “the request”. The task committed to the decision-maker is to make a judgement as to what information (if any) is reasonably regarded as irrelevant to the (correctly identified) request. Put another way, the content of the “request” is, in effect, a kind of jurisdictional fact – not in the sense that the existence of the decision-maker’s jurisdiction depends on the objective existence of the fact, but in the sense that the task which the decision-maker is to perform must be performed with an objectively correct appreciation of the nature of the request.

269    For these reasons, if the Tribunal applied s 22(1)(b)(ii) on an incorrect appreciation of the nature of the “request” (as I think it did, for the reasons explained at [261]-[264] above), it will have asked itself the wrong statutory question and, consequently, failed to exercise its jurisdiction as required by the FOI Act. That would be an error of law and the question of whether the Tribunal’s decision was affected by jurisdictional error is a question that can properly be determined on an appeal on a question of law: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at 385 [202]; see also Roads and Traffic Authority (NSW) v Peak [2007] NSWCA 66 at [151] (Basten JA).

270    The AFP submitted that the assessment by the Tribunal of whether giving access to a document “would disclose information that would reasonably be regarded as irrelevant to the request” involves an evaluative judgement and gives rise to “questions of fact and degree”. In support of that submission, the AFP referred to Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101; [2004] FCAFC 237 (Bennett) at 115 [52] (Emmett J). It is to be accepted that the question of whether particular matter in a document bears a relation to a request for documents such that it can be characterised as “reasonably regarded as irrelevant to the request” involves an evaluative judgement. A complaint that merely criticises the evaluative judgement made in a particular case will not necessarily give rise to a question of law (although, as Gyles J noted in Bennett at 120 [68], “an error on a question of law may be bound up with the question of fact”). However, it does not follow that the anterior question of the proper construction of the request is merely a question of fact that cannot give rise to a question of law. For the reasons given above, the scope of the request is a key determinant of the limits of the jurisdiction of the decision-maker under the FOI Act, and the question of whether the decision-maker exercised its jurisdiction by reference to the request is a question of law.

The Tribunal’s failure to give reasons for deciding that parts of the Report were out of scope

271    The Tribunal’s reasons at [84] do not reveal what considerations led it to adopt one interpretation of the scope of the request rather than another. It is not apparent from the Tribunal’s reasons that it even appreciated and dealt with the argument that had been made by Mr Bachelard, to the effect that the request was for the document constituting the Report. Rather, the Tribunal’s bare assertion that it accepted the AFP’s submission that part of the Report dealt with “another topic” suggests that the Tribunal proceeded on the assumption that the only question the Tribunal had to address was the factual question of whether the parts of the Report which the AFP claimed were covered by s 22(1)(a) dealt with a topic other than that described in the request.

272    In my view, the Tribunal’s reasons on this topic were not legally adequate to explain how it had reached its conclusion and how it had resolved the issue between the parties in relation to the proper interpretation of the request in relation to the Report. That the Tribunal dealt with the matter only cursorily is perhaps understandable in circumstances where the Tribunal had held that the Report was wholly exempt by reason of each of ss 37(1)(b), 47E(c) and (d) and s 47F. The Tribunal at [84] was considering a hypothetical issue that did not arise on its own findings. While this might explain why the Tribunal might have decided not to explain its reasons in relation to this issue, insofar as the conclusion at [84] might otherwise have been relied on by the AFP as identifying a basis for upholding the Tribunal’s refusal of access to parts of the Report, the reasons given by the Tribunal are not legally adequate to support that conclusion.

273    I do not mean to suggest that the Tribunal’s reasons needed to explain in detail its decision to accept that particular parts of the Report were irrelevant to the request as understood by the Tribunal; that would be a difficult task given the need for the Tribunal to avoid revealing the content of the Report, which it had found to be entirely exempt from disclosure.

274    However, the consideration that the Tribunal was unable to refer to the content of the Report should not have prevented it from providing reasons for rejecting Mr Bachelard’s submission that his own intention, in making the request, was to seek access to the Report in its entirety, and that that was the proper construction of the request. The Tribunal never even clearly addressed that first question. It is not clear whether it failed to appreciate, or forgot about, Mr Bachelard’s submissions on that point. Insofar as the Tribunal implicitly proceeded on the basis that that issue was resolved against Mr Bachelard, it gave no reasons for that aspect of its decision.

The Tribunal could not reasonably have reached the conclusion it did in relation to the application of s 22(1)(a)(ii)

275    Having perused the Report, it is clear to me that, even if (contrary to my conclusion above) the request was properly to be interpreted as limited to the subject matter of “Mr Keelty’s interaction with serving members”, there are significant parts of the Report which were claimed to be covered by s 22(1)(a)(ii) but which the Tribunal could not properly have regarded as irrelevant to Mr Bachelard’s request, on any reasonable view.

276    Mr Bachelard has not had the opportunity of knowing what particular parts of the Report were covered by the AFP’s submission that they were beyond the scope of the request. It would not be possible to discuss the contents of those parts of the Report in detail without revealing their contents. Since there remains a dispute as to whether Mr Bachelard should be given access to any part of the Report, it would not be appropriate for me to identify its content in any detail in these reasons.

277    Without attempting to be exhaustive, in my view it was not reasonably open to the Tribunal to accept that s 22(1)(a)(ii) applied to all the following parts of the Report which were identified by the AFP as covered by s 22(1)(a)(ii):

(1)    It was claimed that the entirety of the cover page of the Report, including its title, was covered by s 22(1)(a)(ii). However, none of the information on that page related to any discrete subject matter different from the investigation in which Mr Bachelard was interested.

(2)    It was claimed that the entirety of the table of contents of the Report was covered by s 22(1)(a)(ii). However, nothing in the table of contents related to a discrete subject matter different from or unrelated to the investigation in which Mr Bachelard was interested.

(3)    It was claimed that parts of the Executive Summary of the Report were covered by s 22(1)(a)(ii). They included parts which identified what had been referred for investigation, including the very matter in which Mr Bachelard had indicated he was interested, and described the manner in which the writer of the Report had dealt with that matter and why.

(4)    The whole introductory section of the Report (which runs to some 33 paragraphs) was said to be covered by s 22(1)(a)(ii). In the introductory section of the Report, the author explained:

(a)    the process by which issues to be investigated, including the very matter in which Mr Bachelard was interested, were allocated;

(b)    the history of earlier investigations about that matter;

(c)    the terms of reference provided to the author relating to that matter;

(d)    relevant legislation and policy documents which applied to the investigation of that matter and which bound the person whose conduct was the subject of the investigation;

(e)    the author’s approach to fact-finding in relation to that matter;

(f)    the requirements of confidentiality applying to the Report;

(g)    the procedural steps taken by the author to conduct the investigation into the matter including the interviewing of particular persons and the basis on which the interviews were conducted; and

(h)    the author’s communications with the person whose conduct was the subject of the investigation.

(5)    The entirety of the short section of the Report which set out the author’s summary of the issues that had been the subject of the investigation was claimed to be covered by s 22(1)(a)(ii).

(6)    It was claimed that s 22(1)(a)(ii) applied to parts of the Report setting out:

(a)    evidence about Mr Keelty’s activities and the relationships between him and various other persons;

(b)    background facts setting the context for conduct that was the subject of the investigation;

(c)    media articles relating to those background facts; and

(d)    the characterisation of certain alleged conduct or possible conduct of the very kind Mr Bachelard had indicated he was interested in.

278    The parts of the Report to which s 22(1)(a)(ii) was claimed to apply were very extensive. The main body of the Report consists of 135 numbered paragraphs. Of those, the AFP claimed, and the Tribunal evidently accepted, that s 22(1)(a)(ii) applied to the whole of 81 of the paragraphs of the Report, and to parts of three further paragraphs. On no view can all those paragraphs be said to deal with “another topic” in the sense of being concerned only with a discrete topic that is different from the investigation and conduct the subject of the Report.

279    I note that, in [20] of the AFP Open SFIC (set out at [253] above), the AFP appears to have accepted that the intended target of Mr Bachelard’s request was (at least) information relating to “the AFP’s Professional Standards Investigation Unit’s (PRS’s) investigation of Mr Keelty’s conduct in respect of Mr Roberts-Smith in June 2018”. Whether or not it can be said that the Report dealt with any other discrete matter or matters, the paragraphs of the Report which the Tribunal held were covered by s 22(1)(a)(ii) extended far beyond any discrete part of the Report dealing exclusively with a different matter. As is apparent from the summary at [277] above, many of those paragraphs described matters that were undoubtedly relevant to the investigation into the very matter that Mr Bachelard’s description of the Report in the request had indicated he was interested in.

280    These are not mere differences of opinion in relation to findings of fact. The Tribunal’s acceptance of the AFP’s claims regarding the application of s 22(1)(a)(ii), including over all the parts of the Report identified in the preceding paragraph, demonstrates that it proceeded on the basis of a misunderstanding of the operation of s 22(1)(a)(ii), and that it misapplied that provision at [84] of its reasons.

281    The point of s 22(1)(a)(ii) is to exclude from documents material that is wholly outside the scope of, and irrelevant to, an access request. It is not to conceal from an FOI applicant information that happens to mention or relate to other topics, that may be incidentally revealed or inferred from parts of the document that contain material that is within the scope of the request and related to the subject matter of the request.

282    In submissions filed with leave after the oral hearing of the matter, the AFP submitted that the Tribunal’s reasons at [84] accepted that part of the Report was irrelevant to Mr Bachelard’s FOI request. Since the Tribunal did not identify which parts of the Report were irrelevant, and said that it accepted the submissions of the AFP about s 22(1)(a)(ii), the “parts” which it found to be irrelevant must have been all of those that had been identified by the AFP as parts of the Report to which s 22(1)(a)(ii) applied. The AFP submitted that those findings involved “factual assessments for the Tribunal to make” that were “not vitiated by legal unreasonableness or other error of law”. I do not accept this submission. In my view, the Tribunal’s findings that all the identified parts of the Report were covered by s 22(1)(a)(ii) were not reasonably open on a proper understanding of the operation of that section.

Conclusion in relation to ground 8

283    For these reasons, I would uphold Mr Bachelard’s eighth ground of appeal.

284    Nothing in what has been said above should be taken as expressing any view about whether some or all of the parts of the Report which the Tribunal held to be covered by s 22(1)(a)(ii) contain exempt matter. That is a matter to be reconsidered by the Tribunal.

FURTHER OBSERVATIONS ABOUT PROVIDING EDITED DOCUMENTS

285    Several of Mr Bachelard’s grounds of appeal have involved complaints about the approach of the Tribunal to the application of s 22(1) of the FOI Act. I make the following general observations about the approach to s 22(1) of the FOI Act and the provision of edited copies of documents which it contemplates.

286    First, agencies (and the Tribunal) dealing with FOI requests generally should not make any assumption that an FOI applicant would not wish to receive an edited copy of a document – even a very heavily edited copy – if they determine that access should not be provided to the document in its entirety.

287    No doubt the provision of only heavily redacted versions of the Report and the Statements might fail to provide Mr Bachelard with much of the substantive information that he may have hoped to receive, but that is not a reason to refuse to provide access to an edited copy of the Statements if that is both possible and reasonably practicable, unless it were “apparent” that Mr Bachelard “would decline access to the edited copy”: see FOI Act, s 22(1)(d).

288    In the present case, there was no reason to suppose that Mr Bachelard would not wish to receive access to the documents he requested to the greatest extent permitted under the FOI Act. It is not possible to know for certain what he would have said had he been asked, but it may be inferred that Mr Bachelard was keen to have access to as much of the Statements as he could obtain – even if it turned out that he was disappointed with the receipt of only a very heavily redacted document.

289    Secondly, the objects of the FOI Act are promoted by the provision of documents pursuant to the FOI Act to the greatest extent possible, even if the operation of exemptions means that the edited version of a document that is ultimately provided is heavily redacted. Even the release of only relatively formal or formulaic parts of a document may well provide some information to an FOI applicant that may be of interest to them.

290    Thirdly, and relatedly, in cases where some of the substantive content of a document can be released but other parts are said to contain exempt matter, the disclosure of an edited copy of the document to the FOI applicant may provide them with context that may allow them to make more targeted and relevant submissions in relation to the parts of the document which are said to contain exempt matter. For example, knowledge relating to parts of the document that are disclosed may be utilised by an FOI applicant as the basis for making submissions in relation to exemptions claimed over other parts of the document. An FOI applicant who has received access to an edited copy of a document as the result of an agency decision, for example, may be in a better position to make arguments about why other parts of the same document are unlikely to be exempt. Whether that is so will depend on the particular document or documents in question in each case.

291    The arguments which an astute FOI applicant might raise in their own interests may include arguments that would not necessarily occur to a decision-maker, or to an agency attempting to resist disclosure of documents. For example, ostensibly formulaic information in a witness statement identifying how it was produced or what the maker of the statement was told, if known to an FOI applicant, might potentially be deployed in support of an argument that a claimed exemption does not apply. The decision-maker may or may not ultimately find such arguments compelling, but the more information is disclosed to an FOI applicant, the more likely such arguments are to be raised and properly considered.

292    Fourthly, even if the provision of an edited copy of a document does not provide an FOI applicant with much of the substantive information that they seek, the release of an edited version which makes clear what parts of the document contain exempt matter and which do not will generally provide a greater degree of transparency about the operation of the FOI Act itself.

293    Finally, because an FOI applicant will always be at a disadvantage when arguing for the release of documents the content of which is wholly or partly unknown to them, the Tribunal should be astute to try to consider what issues an FOI applicant might have identified, and what submissions they might have wished to make, if they had been aware of the content of documents over which exemptions are claimed. In order to afford a fair hearing to the agency, it may be necessary for the Tribunal to raise such issues and hear argument on them in the absence of the FOI applicant or their representatives.

RELIEF

Conclusions reached to this point

294    For the reasons given above, I consider that each of grounds 1, 2, 4, 5, 6 and 8 should be upheld. I have not found it necessary to determine grounds 3 or 7 (or to determine all of the arguments advanced in relation to ground 1).

295    It follows from my reasoning above that various aspects of the Tribunal’s decision were affected by error, namely:

(1)    In relation to the confidential source exemption in s 37(1)(b) of the FOI Act, the Tribunal erred in misunderstanding the legal effect of the confidentiality regime created by s 60A of the AFP Act and this affected the Tribunal’s reasons in relation to the application of s 37(1)(b) to both the Statements and the Report. (Ground 1; see [115]-[136] above.) The Tribunal’s misunderstanding of s 60A of the AFP Act also affected its consideration of the exemption provided for in s 47F of the FOI Act, (see [238] above).

(2)    Also in relation to the confidential source exemption, the Tribunal erred in failing to consider and determine whether it was possible to give access to edited copies of the Report or the Statements in which identifying information was redacted, as required by s 22(1) of the FOI Act. This error affected the Tribunal’s reasons and conclusion in relation to the application of s 37(1)(b) of the FOI Act to both the Statements and the Report. (Ground 2; see [139]-[181] above.)

(3)    In relation to s 47E(c) and (d), the Tribunal denied Mr Bachelard procedural fairness in relation to the Statements, by determining that they were exempt under s 47E, when the AFP had not relied upon that ground before the Tribunal, and the Tribunal had not put Mr Bachelard on notice that it intended to decide an aspect of the case on the basis of that provision. This error directly affected the Tribunal’s reasons and conclusion in relation to the application of s 47E to the Statements, but also indirectly affected (at least) the Tribunal’s conclusions with respect to the application of s 47E to the Report. (Ground 4; see [182]-[211] above.)

(4)    Also in relation to s 47E(c) and (d), the Tribunal erred in failing to consider and determine whether it was possible to give access to edited copies of the Report or the Statements in which identifying information was redacted, as required by s 22(1) of the FOI Act. (Ground 5; see [212]-[224] above.)

(5)    In relation to the personal information conditional exemption in s 47F of the FOI Act, the Tribunal misapplied s 47F by proceeding on the basis that there was no public interest to be served by the release of the Statements or the Report, contrary to the recognition of that public purpose in the objects of the FOI Act. This error affected the Tribunal’s reasons and conclusion in relation to the application of s 47F to both the Statements and the Report. (Ground 6; see [227]-[237] above.) The error must also have affected the Tribunal’s assessment of the public interest in relation to the conditional exemptions under ss 47E(c) and (d) and 47F. (See [240] above.)

(6)    The Tribunal erred in finding that parts of the Report were irrelevant and outside the scope of the request, by misconstruing the request. Further, insofar as the Tribunal found that all of the parts of the Report which the AFP claimed were irrelevant were outside the scope of the request, it is to be inferred that it misunderstood or misapplied s 22 in a manner that amounted to applying a wrong test. (Ground 8; see [242]-[283] above.)

296    The effect of these conclusions is that the Tribunal’s consideration of each of the exemptions relied upon was affected by legal error in various ways.

297    None of these conclusions dictates that it was not open to the Tribunal to find that at least parts of the documents contained exempt matter by reason of one or more of the exemptions relied upon. The assessment of the merits of the AFP’s arguments regarding each of the exemptions is a task that should be undertaken afresh.

Remittal to the ART for reconsideration

298    Although the appeal to this Court lies only on a question of law, if the Court considers that a relevant error has been established, it has power either to remit the matter to the Tribunal (now, the ART) or to determine the matter for itself: AAT Act, s 44(6). The Court may make findings of fact that are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law) itself: see AAT Act, s 44(7).

299    In the circumstances of the present case, having regard to the considerations identified in s 44(7) of the AAT Act, I consider that the better course is to remit the matter to the ART to be determined completely afresh, rather than this Court itself making findings of fact and determining what it considers to be the correct or preferable decision on the review.

300    The hearing before the Tribunal miscarried in various ways which I consider significant. The proceedings in the Tribunal raised several issues (three exemptions and the application of s 22(1)(b)(ii)). If this Court were to re-determine these issues for itself, it would not merely be making minor adjustments to the conclusions reached by the Tribunal, but would effectively be re-exercising the review function of the Tribunal from the beginning, and both the parties would need to be given the opportunity to adduce further evidence. It would not be more efficient or expeditious for this Court to make the necessary findings of fact. In any event, given the potential for differences of opinion in relation to each of those issues, and the unavailability of any further appeal or review as of right from a decision of the Full Court, it is preferable that that exercise be performed afresh by the ART.

301    Moreover, the issue of what redactions should be made, if the Court were to conclude that there were at least parts of the documents that could be disclosed without disclosing exempt matter, is an exercise that could only be performed on the basis of further submissions, and perhaps even some further evidence, to be received from the AFP. It is more appropriate that the ART undertake these tasks.

CONCLUSION

302    The Court should make orders as follows:

(1)    The appeal be allowed.

(2)    The decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Administrative Review Tribunal (differently constituted) to be determined in accordance with the law.

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

Associate:

Dated:    3 February 2025