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http://www.austlii.edu.au/au/cases/cth/aat/2014/180.html [Home] [Databases] [WorldLII] [Search] [Feedback] Administrative Appeals Tribunal of Australia You are here: AustLII >> Databases >> Administrative Appeals Tribunal of Australia >> 2014 >> [2014] AATA 180 [Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help] Fernandes and National Archives of Australia [2014] AATA 180 (2 April 2014) Last Updated: 3 April 2014 [2014] AATA 180 Division GENERAL ADMINISTRATIVE DIVISION File Number(s) 2013/0407, 0408, 0082 Re Clinton Fernandes APPLICANT And National Archives of Australia RESPONDENT DECISION Tribunal President D Kerr Date 30 January, 3 February 2014 Date of written 2 April 2014 reasons Place Canberra 1. The decision of the respondent is varied. 2. The Tribunal decides that the first line of the handwritten text at Part 21 Folio 130 and the first paragraph of Part 21 Folio 133 are not exempt from release under the Archives Act 1983, but otherwise affirms the decisions under review. 3. The operation of the Tribunal’s decision is to come into effect 7 days from the date of these reasons. ........................................................................ President D Kerr Catchwords Archives – Exempt records – Information or matter communicated in confidence – Information or matter the disclosure of which could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth – Degree of satisfaction required to conclude records “could reasonably be expected” to cause damage – Construction of word “security” in Archives Act – Role of Inspector-General of Intelligence and Security in review Legislation Archives Act 1983 ss 3(7), 33(1), 33(1A)(c), 50A, 51, 52 Administrative Appeals Tribunal Act 1975 s 36 Australian Security Intelligence Organisation Act 1979 Office of National Assessments Act 1977 Cases Aldred and Department of Foreign Affairs and Trade [1990] AATA 833 Attorney-General v Cockcroft (1986) 10 FCR 180 Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 Drake v Minister for Immigration (1979) 46 FLR 409 Fernandes and National Archives of Australia [2011] AATA 202 Re Maher and Attorney-General’s Department (1985) 3 AAR 396 Re Slater and Director-General, Australian Archives [1988] AATA 110; (1988) 8 AAR 403 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 Staats and National Archives of Australia [2010] AATA 531 REASONS FOR DECISION President D Kerr Oral reasons given on 30 January 2014 1. It is a matter of common agreement between the parties that Indonesian- Australian relations are of fundamental importance to our nation. It is not surprising that there is considerable public interest in events that occurred in the aftermath of the Indonesian incorporation of East Timor in the late 1970s. That was of some domestic controversy and the effective de facto recognition by the Australian Government generated a degree of domestic debate and also some international attention. 2. Dr Fernandes has made a significant contribution to intellectual debate and research on this subject and has, understandably, sought to inform himself as best available by seeking from the National Archives of Australia (‘Archives’) documents that relate to the events that have been the subject of his research. 3. The present matters relate to documents that cover a period some years after the original Indonesian incorporation of East Timor when Indonesia sought to secure victory over remnant Fretilin resistance. 4. Dr Fernandes has a prima facie entitlement to access those documents after the expiry of the release date rules that govern them. In the present instance, there is no dispute that the period is 30 years, but the release date periods are now being sequentially reduced: see Archives Act 1983 s 3(7). 5. There is no dispute that Archives has a substantial collection of documents relevant to Indonesia–East Timor political events in general and it is from that collection of documents that these applications arise. 6. The prima facie entitlement that Dr Fernandes has to access to those documents is subject to the documents not being within a relevant exemption. The ultimate issue that is before this Tribunal is whether certain records that Archives has determined are subject to a relevant exemption are in fact exempt and whether that decision should be confirmed by this Tribunal or set aside. 7. These are not the first proceedings that Dr Fernandes has brought in relation to the events that occurred more than 30 years ago following the Indonesian incorporation of East Timor. The previous matter was before this Tribunal in Fernandes and National Archives of Australia [2011] AATA 202, which I will refer to as Fernandes No 1. 8. In Fernandes No 1 the then President of the Tribunal, Downes J, indicated at [9] that: Unlike some cases involving questions of national security the present review is conventional merits review. I am to make the “correct or preferable decision” as to whether any, and if so which, of the redacted material is exempt: Drake v Minister for Immigration (1979) 46 FLR 409 at 419; see also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 309. 9. Counsel are agreed as to the correctness of that proposition. This Tribunal is to exercise an independent judgment of its own and is not bound by any view that has been expressed by way of affidavit evidence or oral evidence by any witness. Of course it is natural that the Tribunal will treat with respect any evidence that is being given but it must form its own independent judgment. That goes to the logic as well as to conclusions as to the existence of a proper claim for exemption. 10. Nor is the Tribunal bound by any view of the Inspector-General of Intelligence and Security whose evidence must be sought if a document is ultimately to be released. 11. However, unlike ordinary merits review proceedings before this Tribunal, the proceedings are subject to two particular elements that have to inform the manner in which it is conducted. 12. The first is the existence of an Attorney-General’s certificate that was issued in these proceedings. On 23 January 2014, the Attorney-General issued a certificate under s 36 of the Administrative Appeals Tribunal Act 1975 which is exhibit 1. In that certificate the Attorney-General certified pursuant to subsection 36(1) of the Administrative Appeals Tribunal Act 1975 that disclosure of: 1. the contents of the confidential affidavit affirmed by Jim Hagan, Deputy Director-General of the Office of National Assessments, on 23 October 2013 2. the contents of the confidential affidavit described in the schedule of this certificate, together with the schedule itself 3. any evidence adduced or submissions made by or on behalf of the respondent concerning the matters contained in those confidential affidavits and parts thereof, would be contrary to the public interest because the disclosure would prejudice the security, defence or international relations of Australia. 13. Section 36 of the AAT Act relevantly reads as follows: o (1) If the Attorney-General certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest: a. by reason that it would prejudice the security, defence or international relations of Australia; b. by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or c.for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed; the following provisions of this section have effect. (2) A person who is required by or under this Act to disclose the information or to produce to, or lodge with, the Tribunal the document in which the matter is contained for the purposes of a proceeding is not excused from the requirement but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information or the matter contained in the document is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged. 14. The proceedings therefore present some challenges to counsel representing the applicant. The applicant knows of only some of the evidence that is before the Tribunal and is unable to cross-examine on much of that which has been put to the Tribunal by way of evidence to support the conclusions reached by Archives which are now pressed upon the Tribunal. 15. Those circumstances require this Tribunal to take a more active part in the examination of witnesses who appear before it in the closed part of the proceeding and to do what it can, without taking the role of advocate for the applicant, to test robustly any evidence that is given by a witness whose evidence is the subject of such a certificate. 16. In the matter of Fernandes No 1, Downes J indicated to counsel that he would put to those witnesses any questions that counsel for the applicant thought should be asked. I followed a similar course. Whilst my questions were not always put in the form that they were tendered, the substance of the issues that were canvassed was drawn to the attention of witnesses so that the Tribunal could be informed as to the response of those witnesses in relation to the issues that were raised.

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