Both decisions concern issues relating to communication of information by a foreign government ( one the UK, the other India), and disclosure expected to cause damage to international relations. While the Federal Court decision is unremarkable in terms of interpretation and application of the law, it reminds that the blanket exemption under the Commonwealth act for information communicated in confidence by a foreign government has no element that requires balancing with any other consideration.
The Queensland Information Commissioner's decision on the other hand is a remarkable outcome. The similar Right to Information Act provision there, positively, requires consideration of the public interest in disclosure. But the exemption turned out to be broad enough to block Dr Haneef from obtaining the transcript of his conversation with the Indian Consul General while in detention in 2007, a document only in the hands of the Queensland Police because the conversation was taped without the knowledge of either party. And a ruling that disclosure of the transcript to Dr Haneef, who obviously knows what he and the Consul General said to each other, could be expected to cause damage to Australia's relations with India.
The Tribunal’s reasons bespeak an error of law...The question of confidence must be resolved as between the communicator and the person to whom the communication is made. It is not a question of determining whether or not individual aspects of the relevant disclosure are of a kind which a third person (in this case, the Tribunal) might wish to keep confidential. Quite apart from the wording of the provision, I doubt whether the Tribunal could know, with any degree of certainty, the views which a senior Indian civil servant or, for that matter, an Australian diplomat might have concerning such matters.... Whilst some conversations may proceed upon the basis that parts are confidential and parts are not, there is nothing in the text of this document to suggest that the conversation in question was conducted on that basis. The evidence from Ms Stokes suggests that in her opinion, as an experienced diplomat, and in the Indian context, such a conversation would have been treated by the parties as confidential. In my view that is the question addressed by s 33(1)(b)..... However I am satisfied that the Tribunal, in taking a fragmented approach to the various passages in the memorandum, has failed to appreciate the extent of the protection provided by s 33(1)(b), a protection based upon the understandings of the parties participating in the conversation, rather than the subject matter. Of course it is possible that some conversations may be clearly “unofficial" in subject matter, but this is not such a case.....The Tribunal did not reject Ms Stokes’ evidence. It rather substituted its own views for hers. It did so in the mistaken view that the protection offered by s 33(1)(b) was limited by subject matter rather than the intention of the parties as to the conversation, a matter regarding which Ms Stokes could speak, based on her experience."
Matter affecting relations with other governmentsMatter is exempt matter if its disclosure could reasonably be expected to (a) cause damage to relations between the State and another government; or (b) divulge information of a confidential nature that was communicated in confidence by or on behalf of another government; unless its disclosure would, on balance, be in the public interest.
I don't know if the point was raised but despite the absence of words in the legislation, it might be arued the legislative intent was to cover communication from a foreign government to an Australian or Queensland agency. It seems strange and unexpected that the provision is broad enough to cover information communicated by the Consul General to an Indian national in a conversation the parties thought was just between them, and now sought by one of the participants in that conversation. The Consul General didn't, knowingly at least, communicate confidential information in confidence to any government agency.
She listed  public interest factors that favour disclosure as:
• the degree to which current laws and the QPS Commissioner’s procedures explicitly reflect Australia’s international obligations and provide police officers with sufficient guidance about implementationWhile the questionable conduct in the Haneef matter is largely that of the Australian government agencies not the Queensland Police, although they were clearly involved (they are adamant, the Commissioner says, that they acted lawfully ), it's interesting that the Commissioner made no mention of the following factors listed in the Schedule to the act as relevant to disclosure:
• the degree to which law enforcement agencies balance their obligations to protect the safety of Australians and respect international obligations in the context of new terrorist laws that significantly enhance police powers and reduce public scrutiny and
• the public interest in the police conducting themselves in a way that does not jeopardise Australians’ safety overseas and Australia’s reputation.
The information is the applicant’s personal information.One thing certain is we haven't heard the last of Dr Haneef and others involved in events of 2007.
Disclosure of the information could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official.
Disclosure of the information could reasonably be expected to advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies.