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Monday, July 19, 2010

Dr Haneef loses another round

In Haneef and Australian Federal Police (the Commonwealth Director of Public Prosecutions was also a respondent) [2010] AATA 514, Senior Member McCabe upheld the agencies' Freedom of Information exemption claims, with a small number of minor variations, in respect of documents withheld concerning his detention and cancellation of visa in 2007. Some documents had been previously released.

The decision is straightforward in terms of the law, but includes a long summary of the background [6-48], a couple of interesting comments about legal privilege [60-76] and affirmed the absolute nature of the exemption (section 33(1)(b)) that relates to provision of information in confidence by a foreign government [230-234].Regardless of whether the information is now in the public domain, or any other consideration if the evidence is there is an agreement between agencies, an Australian officer says the (UK) Metropolitan Police Service gave it in confidence, and the Tribunal has no grounds to doubt the claim, that's the end of the matter. No doubt in dealings with us, all foreign government agencies mark their aide-memoire accordingly.

As Senior Member McCabe said [232]:
"..the MPS is serious about protecting secrets. It is irrelevant whether that attitude is consistent, reasonable or admirable. I accept there is a risk that information from overseas might be rendered inaccessible through the simple device of channeling it through the hands of a supposedly prickly agency."
A submission from counsel for the applicant that the Memorandum was "drawn so widely that it is attended by an 'air of unreality'"  was of no relevance. Dr Haneef encountered a similar hurdle in two previous AAT FOI cases, here and here.

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