Information commissioner rules releasing custom vessel logs, emails and cables about turnback operations could have ‘adverse effect’ on border protection

This article is more than 5 years old

This article is more than 5 years old

Australia’s information commissioner has ruled that customs vessel logs, emails and cables about asylum seeker turnback operations at sea should remain secret.

The information commissioner, Prof John McMillan, ruled that requests for watch officer logs and authorisations for turnbacks were exempt from release because they could have a “substantial adverse effect” on the Australian Customs and Border Protection Service (ACBPS).

Guardian Australia sought access under freedom of information laws to the documents from all asylum seeker turnback operations between November 2013 and February 2014.

During this period a number of turnback operations occurred, including at least one that led to Australian vessels breaching Indonesian waters. Four watch logs were identified within scope, along with another 11 documents that were internal requests, cables, briefing papers and emails relating to turnback operations.

What is believed to be an asylum-seeker vessel was sighted off the Western Australian coast on Monday morning.

Suspected asylum seeker boat spotted near the coast of Western Australia Read more

McMillan ruled all 14 of the logs should be exempt in full on the grounds their release could have a “substantial adverse effect” on customs and would also likely have been exempt on national security grounds.

McMillan wrote in the decision: “I am satisfied from my own inspection of the documents (particularly the watch logs) that the claims, taken together, are reasonably based and genuine. They support the ACBPS claim that disclosure could reasonably be expected to have a substantial adverse effect on its operations.”

Even if the documents were found to have a substantial adverse effect on customs, they could still have been released if the public interest factors were strong enough.

In a decision likely to be seen as controversial, McMillan suggested that any assessment of public interest in the release of the documents should be considered in the context of the federal government’s border protection policies.

“This public interest balancing process must be undertaken in a context which accepts that the elected government has implemented a border control program of which the ACBPS operations are a part. While there is strong public and political debate about that program, it is not part of the IC review function to join that debate.

“In that context, I give greater weight in this balancing process to the factors against disclosure. There are reasonable grounds for finding that disclosure of documents 1-14 and segments of document 15 could frustrate the enforced turnback operations.”

The decision will likely be seen as a victory for the federal government and lend legitimacy to its policy of secrecy surrounding asylum-seeker vessels.

Customs was also permitted to lodge submissions that have been hidden from Guardian Australia. Those submissions, made in February 2015, contain what McMillan described as an example of how disclosure of the information could be affected.

“Generally, the annex explained how a third party could use information about matters such as radar surveillance, vessel speed, communication between vessels, the identity of vessels, the timing of operations, authorisations and turnback procedures. I decided it was appropriate to accept that information on a confidential basis and not invite a further submission from the applicant.”

In submissions to the office of the Australian information commissioner (OAIC), customs amended their claims about the initial exemptions and also later relied on the national security exemption that prohibits disclosure of information about the security of the commonwealth.

Although McMillan did not rule on this point because the documents were already found to be exempt under the substantial adverse effect exemption, he outlined that “the reasoning that supports that exemption claim could equally apply” to the national security claim.

McMillan found that one document, which is a framework analysis of considerations for turnbacks, was not an exempt document and should be made public.

The 10-page document “contains a framework analysis of considerations that are relevant to enforced turnback operations, including the legal basis for operations, the operational objective, procedures to be followed, decision-making, and managing the response and conduct of boat occupants”.

He wrote: “Release of this discussion would add to public understanding of how a difficult and sensitive function is discharged within government. Indeed, at least some of the content matches information that already forms part of public discussion of border control issues.”

The decision is likely one of McMillan’s last in his current role before he moves to become acting New South Wales ombudsman. The privacy commissioner, Timothy Pilgrim, has been appointed acting information commissioner.

The federal government announced in 2014 the OAIC was to be abolished, but has been unable to pass a bill without the support of Labor and key independent senators.

Guardian Australia is considering whether it will appeal the decision.