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Section 29A - Documents affecting national security, defence or international relations

Guidelines

Overview of section 29A

1.1

There are several exemptions in section 29A, that can make different documents exempt from release under the Act.

1.2

Section 29A(1) protects from disclosure, documents that would or could be reasonably expected to cause damage to the:

  • security of the Commonwealth or any State or Territory;
  • defence of the Commonwealth; or
  • international relations of the Commonwealth.
1.3

Section 29A(1) was inserted to improve terrorist threat intelligence sharing between security and law enforcement agencies and government by protecting the information from inappropriate disclosure.6

1.4

Sections 29A(1A), (1B) and (1C) apply to specific types of documents. These narrower exemptions are not intended to limit the application of section 29A(1).

1.5

Sections 29A(1A) and (1B) protect from disclosure:

  • documents held or created by Victoria Police for the purpose of counterterrorism or the protection of critical infrastructure; and
  • documents created for, or containing information about, or that could lead to the identification of a document created for the purposes of administering, complying with or enforcing Part 7A of the Emergency Management Act 2013 (Vic), which relates to emergency risk management arrangements for critical infrastructure resilience.7
1.6

Section 29A(1C) aims to ensure that an exempt document under former section 29A(1B), as it was prior to the amendment in 2014, continues to be exempt.8 Amongst other things, the repealed section 29A(1B) exempts a document if its disclosure would, or could reasonably be expected to, endanger the security of any premises within the meaning of the Terrorism (Community Protection Act) 2003 (Vic).9

1.7

Section 29A must be read consistently with the object of the Act in section 3, which is to extend as far as possible the right of the community to access government held information.

1.8

If consultation with relevant third parties is reasonably practicable, an agency or Minister must consult before applying the exemption.10

Discretion to disclose exempt documents

1.9

The decision to exempt a document under section 29A is a discretionary power. This means an agency or Minister can choose to provide access to information that would otherwise be exempt under section 29A, where it is proper to do so and where the agency or Minister is not legally prevented from providing access.

1.10

Access could be provided to an applicant in a form appropriate to the circumstances, such as a providing a copy of the document or information to the applicant or arranging for the applicant to inspect the document or information.12

A document that would, or could reasonably be expected to, cause damage to the security, defence, or international relations of the Commonwealth – section 29A(1)

1.11

Section 29A(1) protects from disclosure, documents that would or could be reasonably expected to cause damage to the:

  • security of the Commonwealth or any State or Territory;
  • defence of the Commonwealth; or
  • international relations of the Commonwealth.
1.12

When claiming the exemption, an agency or Minister must consider the content of each document, within context, and in combination with other known information. The exemption will apply if disclosure of the document would, or could reasonably be expected to, cause damage when combined with other pieces of information, notwithstanding that no damage would be caused by disclosure of the document in isolation.14

Would or could reasonably be expected to

1.13

The test requires the decision maker to assess the likelihood of the predicted damage occurring after disclosure of a document.19

1.14

The word ‘could’ is a lower threshold than ‘would’ and requires analysis of reasonable expectation rather than certainty of damage occurring.

1.15

There must be ‘real’ and ‘substantial’ grounds for expecting the damage to occur.20 An agency or Minister must be able to support its decision by evidence or reasoning.21 A mere allegation, risk or possibility of damage is insufficient. There must be cause and effect which can reasonably be anticipated.22

Cause damage

1.16

For the purposes of section 29A, damage is not confined to loss or damage in monetary terms.25 The damage may be intangible, such an inhibiting future negotiations between the State of Victoria and the Commonwealth or another State or Territory.

1.17

An agency or Minister must consider what damage could occur at the time of making the decision.26 If, at the time of the decision, disclosure would not cause damage, the document is not exempt under section 29A. It does not matter that disclosure would have caused damage at the time of the document’s creation.

Security of a State or Territory

1.18

The security of a State or Territory broadly refers to the protection of the State or Territory and its population from activities that are hostile to, or subversive of the State or Territory’s interests.

1.19

An agency or Minister must be satisfied that disclosure of the information would, or could reasonably be expected to, cause damage to the security of the State or Territory. The assessment must be made at the time the decision is made and in the environment that exists at the time.29

1.20

‘Damage’ to a State or Territory has three aspects:

  • safety, protection or defence from something that is regarded as a danger (for example, financial difficulty, attack, theft and political or military takeover);
  • the means that may be employed to bring about or to protect against the relevant danger (for example, espionage, theft, infiltration, and sabotage);
  • the organisations or personnel providing safety or protection from the relevant danger.30
1.21

Securing information marked as ‘Protected’ or ‘Secret’ forms part of the security of the State. However, the protective markings on a document are not of themselves conclusive as to whether release of the document would or could reasonably be expected to cause damage to the security of the State. An agency or Minister must consider the requested documents individually and collectively, within the context of the request and other available information.

For more information about protective markings, see OVIC’s information security resources.

1.22

Where appropriate and permitted, an agency or Minister may decide a document is exempt under section 29A(1), but choose to provide supervised access to the document outside of the Act. For example, supervised inspection of the document on condition that no copies of the document or notes about the document are made.

For more information see the FOI Guidelines issued by the Australian Information Commissioner, Part 5 Exemptions, Documents affecting national security, defence or international relations (section 33).

Security, defence or international relations of the Commonwealth

1.23

Section 29A(1) is closely modelled off section 33(a) of the Commonwealth Freedom of Information Act 1982 (Commonwealth FOI Act) which also protects the security, defence and international relations of the Commonwealth.

1.24

An agency or Minister should refer to the Australian Information Commissioner’s guidelines about the Commonwealth FOI Act, when considering whether disclosure of a document would, or could reasonably be expected to, cause damage to the security, defence or international relations of the Commonwealth.

Security of the Commonwealth

1.25

Security of the Commonwealth broadly refers to the protection of the Commonwealth and its population from activities that are hostile to, or subversive of the Commonwealth’s interests.33

1.26

In addition, section 4(5) of the Commonwealth FOI Act expands the meaning of ‘Security of the Commonwealth’ to:

  • matters relating to the detection, prevention or suppression of activities, whether within Australia or outside Australia, subversive of, or hostile to, the interests of the Commonwealth or of any country allied or associated with the Commonwealth; and
  • the security of any communications system or cryptographic system of the Commonwealth or of another country used for the:
    • defence of the Commonwealth or of any country allied or associated with the Commonwealth; or
    • conduct of the international relations of the Commonwealth.34

Defence of the Commonwealth

1.27

‘Defence of the Commonwealth’ includes:

  • meeting Australia’s international obligations;
  • ensuring the proper conduct of international defence relations; and
  • deterring and preventing foreign incursions into Australian territory.42

International relations

1.28

‘International relations’ means the ability of the Australian Government to maintain good working relations with other governments and international organisations and to protect the flow of confidential information between them.48

1.29

The exemption covers:

  • formal diplomatic and ministerial relations; and
  • relations between Australian Government agencies and agencies of other countries.49
1.30

The mere fact that a government has expressed concern about a disclosure is not enough to satisfy the exemption. However, the phrase does encompass intangible or speculative damage, such as loss of trust and confidence in the Australian Government or one of its agencies.50

1.31

The expectation of damage to international relations must be reasonable in all the circumstances, having regard to the nature of the information, the circumstances in which it was communicated and the nature and extent of the relationship.51 There must be real and substantial grounds for the exemption that is supported by evidence.52

Counterterrorism and critical infrastructure documents – section 29A(1A)

1.32

Section 29A(1A)(a) exempts documents held or created by Victoria Police:

  • for the purpose of counterterrorism; or
  • for a purpose relating to counterterrorism.
1.33

The exemption can extend to documents held by an agency other than Victoria Police, if the document was originally created by Victoria Police for the purpose of counterterrorism or relating to counterterrorism.

1.34

The intent of section 29A(1A)(a) is to protect the confidentiality of intelligence gathered by the police in relation to counterterrorism.60

Conclusive certificates certifying a document is exempt

1.35

Under section 29A(2), a Department Head or the Chief Commissioner of Police can sign a certificate to conclusively certify that:

  • a document as described in a request; or
  • a document or information as described in a notice to produce or attend;62

is an exempt document under section 29A(1), (1A) or (1B).

Consultation with third parties under section 29A(1D)

1.36

The consultation requirements for the section 29A exemption are the same as the section 29 exemption (for documents containing matter communicated by any other State).

1.37

When considering whether a document is exempt under section 29A, an agency or Minister must:

  • notify relevant third parties that the agency or Minister has received a request for the document; and
  • obtain the third party’s views about whether the document or information should be disclosed.
1.38

When consulting, the 30-day period for deciding a request may be extended by up to 15 days under section 21(2)(a).

1.39

Identifying the relevant third parties will depend on the context and nature of the requested document. Relevant third parties may be another Victorian government agency or Minister, or an agency or authority of another country, the Commonwealth or another State or Territory.

1.40

An agency or Minister is only required to notify and seek the views of a third party where it is reasonably practicable to do so.

1.41

Consultation may occur in any manner or form. For example, by telephone, email, post, or a meeting.

1.42

When undertaking consultation, a third party should be made aware of the applicable exemption and what must be established for the exemption to apply.64 This means:

  • for the section 29A(1) exemption, informing the third party that the agency or Minister must establish that disclosure would, or could reasonably be expected to, cause damage to the:
    • security of the Commonwealth or any State or Territory; or
    • defence of the Commonwealth; or
    • international relations of the Commonwealth;
  • for counterterrorism or critical infrastructure documents, this means informing the third party of the strict requirements of subsections (1A), (1B) or (1C) and of the requirements of any relevant legislation referred to in the relevant subsection.
1.43

Informing the third party of the elements of the exemption will help to enable them to provide an informed response and ensure their reasons are relevant, if they object to the document being released.

1.44

There is no requirement to notify the third party of the agency or Minister’s decision on the request. However, as a matter of courtesy, an agency or Minister should inform the third party of the outcome of the decision – whether it is to release or refuse access to the document.

See section 33 of the Guidelines for more information about:

  • determining whether consultation is reasonably practicable
  • how to conduct consultation
  • privacy considerations
  • keeping records of consultation under the Professional Standards

Neither confirming nor denying the existence of a document

1.45

In some cases, even acknowledging that a document does, or does not exist, can cause damage. In those cases, an agency or Minister may make a decision and express it in terms that neither confirms nor denies the existence of the requested document.67

1.46

An agency or Minister can neither confirm nor deny that a document exists where a document is exempt under section 29A, or if it did exist, would be exempt under section 29A.68

No oversight or review by OVIC

1.47

The Office of the Victorian Information Commissioner cannot conduct a review, handle a complaint, or conduct an investigation about a:

  • section 29A(2) certificate; or
  • decision to sign a section 29A(2) certificate; or
  • question whether a document is, or whether a document including the information would be, of a kind referred to in subsection (1), (1A) or (1B);71 or
  • fresh decision made by an agency or Minister during a review, if the decision is to refuse to grant access to a document on the basis that the document is exempt under section 29A.72

For more information, see:

Review by VCAT

1.48

An applicant may apply to VCAT to seek review of a decision of an agency or Minister to refuse access to a document on the basis it is exempt under section 29A.

1.49

If there is a conclusive certificate in force under section 29A(2), VCAT cannot review the decision to make the section 29A(2) certificate. Instead, VCAT’s review is limited to determining whether there are reasonable grounds for the claim that the document is exempt under section 29A.74 Only judicial members may make this determination and certain parts of the VCAT proceeding must be held in private.

More information:

  1. Victoria, Parliamentary Debates, Legislative Assembly, 27 February 2003, 166 (Stephen Bracks, Premier). Section 29A(1) was inserted in 2003 by the Terrorism (Community Protection) Act 2003 (Vic).
  2. These exemptions were inserted in 2006 by the Terrorism (Community Protection) (Further Amendment) Act 2006 (Vic) and substituted in 2014 by the Emergency Management Amendment (Critical Infrastructure Resilience) Act 2014 (Vic).
  3. Section 29A(1C) was inserted in 2014 by the Emergency Management Amendment (Critical Infrastructure Resilience) Act 2014 (Vic). See Terrorism (Community Protection) (Further Amendment) Act 2006 (Vic) section 22(2) for wording of section 29A(1B) prior to its substitution in 2014 by the Emergency Management Amendment (Critical Infrastructure Resilience) Act 2014 (Vic).
  4. For a review decision relating to repealed section 29A(1B) see Willner v City of Melbourne [2016] VCAT 154.
  5. Freedom of Information Act 1982 (Vic), section 29A(2).
  6. Victoria, Parliamentary Debates, Legislative Assembly, 27 February 2003, 166 (Stephen Bracks, Premier). Section 29A(1) was inserted in 2003 by the Terrorism (Community Protection) Act 2003 (Vic).
  7. These exemptions were inserted in 2006 by the Terrorism (Community Protection) (Further Amendment) Act 2006 (Vic) and substituted in 2014 by the Emergency Management Amendment (Critical Infrastructure Resilience) Act 2014 (Vic).
  8. Section 29A(1C) was inserted in 2014 by the Emergency Management Amendment (Critical Infrastructure Resilience) Act 2014 (Vic). See Terrorism (Community Protection) (Further Amendment) Act 2006 (Vic) section 22(2) for wording of section 29A(1B) prior to its substitution in 2014 by the Emergency Management Amendment (Critical Infrastructure Resilience) Act 2014 (Vic).
  9. For a review decision relating to repealed section 29A(1B) see Willner v City of Melbourne [2016] VCAT 154.
  10. Freedom of Information Act 1982 (Vic), section 29A(2).
  11. See for example, Prinn v Department of Defence [2016] AATA 445.
  12. See for example, Prinn v Department of Defence [2016] AATA 445.
  13. See ‘mosaic theory’ in Re McKnight and Australian Archives [1992] AATA 225, particularly [28].
  14. See ‘mosaic theory’ in Re McKnight and Australian Archives [1992] AATA 225, particularly [28].
  15. Prinn v Department of Defence [2016] AATA 445, [61].
  16. Commonwealth, FOI Guidelines, Part 5 – Exemptions (OAIC, 14 June 2019) [5.27]; Attorney-General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft [1986] FCA 35 [12] per Sheppard J.
  17. Attorney-General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft [1986] FCA 35 [12] per Sheppard J and [30] per Bowen CJ and Beaumont J.
  18. Re O’Donovan and Attorney-General’s Department [1985] AATA 330; Re Maher and Attorney-General’s Department [1985] AATA 180.
  19. Prinn v Department of Defence [2016] AATA 445, [61].
  20. Commonwealth, FOI Guidelines, Part 5 – Exemptions (OAIC, 14 June 2019) [5.27]; Attorney-General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft [1986] FCA 35 [12] per Sheppard J.
  21. Attorney-General’s Department and Australian Iron and Steel Pty Ltd v Cockcroft [1986] FCA 35 [12] per Sheppard J and [30] per Bowen CJ and Beaumont J.
  22. Re O’Donovan and Attorney-General’s Department [1985] AATA 330; Re Maher and Attorney-General’s Department [1985] AATA 180.
  23. Re Maher and Attorney-General’s Department [1985] AATA 180, [40].
  24. Department of Foreign Affairs and Trade v Whittaker [2005] FCAFC 15, [26].
  25. Re Maher and Attorney-General’s Department [1985] AATA 180, [40].
  26. Department of Foreign Affairs and Trade v Whittaker [2005] FCAFC 15, [26].
  27. Prinn and Department of Defence [2016] AATA 445, [66]
  28. Prinn and Department of Defence [2016] AATA 445 [65].
  29. Prinn and Department of Defence [2016] AATA 445, [66]
  30. Prinn and Department of Defence [2016] AATA 445 [65].
  31. Commonwealth, FOI Guidelines, Part 5 – Exemptions (OAIC, 14 June 2019) [5.29].
  32. Prinn v Department of Defence [2016] AATA 445 [31].
  33. Commonwealth, FOI Guidelines, Part 5 – Exemptions (OAIC, 14 June 2019) [5.29].
  34. Prinn v Department of Defence [2016] AATA 445 [31].
  35. Slater and Cox (Director-General of Australian Archives) [1988] AATA 110.
  36. Hocking and Department of Defence [1987] AATA 602.
  37. Throssell and Australian Archives [1987] AATA 453.
  38. Slater and Cox (Director-General of Australian Archives) [1988] AATA 110.
  39. Hocking and Department of Defence [1987] AATA 602.
  40. Throssell and Australian Archives [1987] AATA 453.
  41. Commonwealth, FOI Guidelines, Part 5 – Exemptions (OAIC, 14 June 2019) [5.34].
  42. Commonwealth, FOI Guidelines, Part 5 – Exemptions (OAIC, 14 June 2019) [5.34].
  43. Bui v Department of Foreign Affairs and Trade [2005] AATA 97 [21].
  44. Re Haneef and Australian Federal Police [2009] AATA 51 [38].
  45. Commonwealth, FOI Guidelines, Part 5 – Exemptions (OAIC, 14 June 2019) [5.37]; Maher and Attorney-General’s Department [1985] AATA 180.
  46. Slater and Cox (Director-General of Australian Archives) [1988] AATA 110.
  47. Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15.
  48. Bui v Department of Foreign Affairs and Trade [2005] AATA 97 [21].
  49. Re Haneef and Australian Federal Police [2009] AATA 51 [38].
  50. Commonwealth, FOI Guidelines, Part 5 – Exemptions (OAIC, 14 June 2019) [5.37]; Maher and Attorney-General’s Department [1985] AATA 180.
  51. Slater and Cox (Director-General of Australian Archives) [1988] AATA 110.
  52. Secretary, Department of Foreign Affairs v Whittaker [2005] FCAFC 15.
  53. Maksimovic and Attorney-General’s Department [2008] AATA 1089.
  54. Maksimovic and Attorney-General’s Department [2008] AATA 1089.
  55. Re Public Interest Advocacy Centre and Department of Community Services and Health and Searle Australia Pty Ltd (No 2) [1991] AATA 723.
  56. Maksimovic and Attorney-General’s Department [2008] AATA 1089.
  57. Maksimovic and Attorney-General’s Department [2008] AATA 1089.
  58. Re Public Interest Advocacy Centre and Department of Community Services and Health and Searle Australia Pty Ltd (No 2) [1991] AATA 723.
  59. Eracleous v Victoria Police [2022] VCAT 1173 [21].
  60. Eracleous v Victoria Police [2022] VCAT 1173 [21].
  61. Conclusive certificates were extended to documents and information described in a notice to produce or attend in 2017 by the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic), section 13(3).
  62. Conclusive certificates were extended to documents and information described in a notice to produce or attend in 2017 by the Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 (Vic), section 13(3).
  63. See Professional Standards (OVIC, 2 December 2019), Note to Standard 7.3.
  64. See Professional Standards (OVIC, 2 December 2019), Note to Standard 7.3.
  65. Freedom of Information Act 1982 (Vic), section 27(2)(b).
  66. Freedom of Information Act 1982 (Vic), section 27(2)(b).
  67. Freedom of Information Act 1982 (Vic), section 27(2)(b).
  68. Freedom of Information Act 1982 (Vic), section 27(2)(b).
  69. See ‘EB5’ and Department of Jobs, Precincts and Regions [2022] VICmr 40 [15].
  70. Freedom of Information Act 1982 (Vic), section 49MA(4).
  71. See ‘EB5’ and Department of Jobs, Precincts and Regions [2022] VICmr 40 [15].
  72. Freedom of Information Act 1982 (Vic), section 49MA(4).
  73. Freedom of Information Act 1982 (Vic), section 50(5A).
  74. Freedom of Information Act 1982 (Vic), section 50(5A).

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Last updated 13 November 2024

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