Shady tactics! Is source code a national security issue?
My FOI proceeding has barely begun, but Services Australia is already attempting some dubious legal manoeuvres that could have a profound impact on the conduct of our case. Up to this point, in the initial decision, internal review and OAIC review, the Respondent relied only on the s 47E(d) conditional exemption. Suddenly, with less than a week until the first directions hearing, we received notice that they will now rely (at least in part) on s 33(a)(i): an unconditional exemption that applies if disclosure of the document would, or could reasonably be expected to, cause damage to the security of the Commonwealth. In other words, they will claim that the release of the source code is a national security issue!
On this basis, the Respondent intends to apply under s 134 of the Administrative Review Tribunal Act 2024 for the proceeding to be conducted under the Tribunal’s Intelligence and Security jurisdictional area. If successful, this would “change the rules” of the proceeding and makes it much more likely that the Tribunal will deny access to evidence upon which the Respondent would seek to rely, give greater weight to Agency submissions, or even restrict disclosure of its findings.
There are no serious grounds for the application of the s 33 exemption, nor any legitimate reason to move it to the Intelligence and Security jurisdiction. To successfully oppose it, we may need to accelerate the preparation of critical parts of our case. This procedural development is also likely to significantly prolong the entire proceeding, because it must be dealt with before the case moves to the evidence and submissions phase.
It also makes the whole matter more complex. Services Australia’s unscrupulous tactic will cost both sides more time and money. Our tax dollars, hard at work! So if you are able to spare some after-tax dollars to help me and my awesome legal team fight back, I will be most grateful. To all the supporters so far, thank you! There’s a long way to go, but it means so much to know that I am not in this fight alone.
—Fraser
