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Monday, August 15, 2016

Guardian Australia argues the FOI case: boat turnbacks don't involve security

Paul Farrell of Guardian Australia was not only busy on the Nauru files in recent weeks , he's also been a very interested party in the challenge in the Administrative Appeals Tribunal to refusal of his Freedom of information application for documents about boat turnbacks.
We will have to wait until the AAT decision for the detail but among a number of issues the case is testing is the meaning of “security of the Commonwealth” in the FOI act. According to this report
"Farrell’s barrister pushed the point that “national security” was not relevant for operations that were unlawful and the government’s incursions into Indonesian waters, which were covered in some of these logs, were unlawful in his view."
Guardian Australia’s barrister Tom Brennan told the hearing:
“Security in the Asio act goes beyond that which is dealt within the FoI act, because it’s not limited to the security of the body politic. It’s directed also to the security of people.“There can be no doubt that people-smuggling activities are a matter of significant public interest … they are not in my submissions ones that rise as high as touching the security of the commonwealth.”
According to the report Major General Bottrell, Commander of Operation Sovereign Borders testified
“Our greatest asset now is the scepticism of the potentially illegal immigrants..” “Much of our effort is aimed at educating people sitting there, that people smugglers are convincing to get on boats.”People smugglers would use the information about turnbacks to inform asylum seekers about how close they had got in their previous attempts to reach Australia. “Our efforts are to educate them about the dangers of that journey.” Bottrell argued that hiding this information from the public and from people smugglers was essential as part of that education effort.
"Security of the Commonwealth"
The exemption relied upon according to these reports (there may be others) is Section 33(a)(i) of the FOI Act: “A document is an exempt document if disclosure of the document under this Act:(a) would, or could reasonably be expected to, cause damage to: (i) the security of the Commonwealth...

The exemption is absolute- there is no weighing of public interest or other considerations that might favour disclosure. 

The meaning of terms used in the exemption received the usual thorough analysis recently from AAT Deputy President Forgie in Prinn and Department of Defence. [58-96] citing many precedents from court decisions but none that appear directly to address the argument reportedly advanced by Tom Brennan.

Guidelines issued by Australian Information Commissioner
Also of interest in the Prinn case [47-57] Deputy President Forgie parted company with Senior Member Popple (as she had last December in Wood) who most recently in Jones said
"The FOI Guidelines are not binding, but decision makers, including this Tribunal, should apply the FOI Guidelines unless there are cogent reasons to the contrary."
Deputy President Forgie:
53. I agree that they are not binding but I disagree that decision-makers, including this Tribunal, “should” apply the Guidelines. The obligation is to have “regard” to them i.e. “... to take into account; consider. ...”.[35] It is not to “apply” them i.e. “... bring to bear, put into practical operation, as a principle, rule, law, etc ...”.[36] Regard can only be had to them if they are made lawfully i.e. within the scope of the power conferred by s 93A and consistently with the FOI Act. Decision-makers cannot be required to have regard to the Guidelines in so far as they relate to the interpretation of the FOI Act. Section 93A(2) limits the power to issue Guidelines for the purposes of the performance of a function or the exercise of a power under that legislation. For those purposes, regard must be had to them and there can be no doubt about that. A modern statement of the importance of guidelines of this sort has been made in Plaintiff M64, to which I have referred at [50] above.

Wednesday, August 10, 2016

You can bet FOI wouldn't deliver the Nauru Files

The freedom of information system wouldn't produce anything like the Nauru Files
published by Guardian Australia today following a leak of more than 2000 incident reports from the Immigration detention centre

After all, when Guardian Australia had a crack at formally obtaining the Detention Logs a couple of years ago, 'smart lawyering' not transparency and accountability prevailed. And that was before the issue of exemptions even arose.

Hat tip this time to Paul Farrell, Nick Evershed and Helen Davidson and the unknown person or persons risking up to two years imprisonment under Section 42 of the Australian Border Force Act 2015 for secreting this cache out of the system. 

There is no defence to the charge of disclosure of protected information (any information obtained in the performance of duties) by an entrusted person (employee,contractor or consultant) regardless of the significance or insignificance of the information.

The reports published "set out as never before the assaults, sexual abuse, self-harm attempts, child abuse and living conditions endured by asylum seekers held by the Australian government, painting a picture of routine dysfunction and cruelty."

There is plenty of shock, outrage and sense of shame voiced on the Twitter feed #naurufiles and no wonder.

 David Marr comments on 'official secrecy' and its political purpose:
Parking refugees on distant islands worked last time to keep their predicament hidden. But secrets are so much harder to keep these days than they were in John Howard’s time...Canberra’s passion for secrecy has always been contradictory. Surely the more the world knows of the fate of refugees in these island camps, the more the deterrent power of holding them there? But secrecy has its purpose. It helps hold the political consensus together. The truth is terrible. The regime of official secrecy allows us – even when so much is known – not to face the facts. It’s a service for the squeamish.
Guardian Australia has commendably self censored personal information from the published reports:
The Nauru files contain a large amount of personal information about asylum seekers and detention centre staff. The Guardian has adopted a stringent approach to redacting the documents, including several layers of editorial and technical checks of the data. The general approach we have taken is to remove:
• The names of all asylum seekers and staff
• Personal identification numbers of asylum seekers (their six-digit “boat arrival numbers”)
• Ages of the asylum seekers named in reports
• Signatures of detention staff
• Nationalities with small population groups
• Residential tent numbers
• In some cases further identifying information has been removed