Annual cabinet papers released-alas, still plenty of dark secrets

Communications Minister Malcolm Turnbull may have choked for a moment on his breakfast cereal when browsing the list of 1986/87 cabinet papers released and withheld.

Particularly at the news that Cabinet Memorandum 4456 "Australian intervention by affidavit in UK Attorney-General v Heinemann and Peter Wright", the famous Spycatcher case, remains secret in its entirety all these years later on the grounds that disclosure "could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth."

Turnbull in 1986 took on and won against the might of the Thatcher government, Wright's right to publish in Australia "The Candid Autobiography of a Senior Intelligence Officer" written while Wright was living in Tasmania after retirement from MI5. Turnbull in 1989 wrote his own account of the trial - a bargain these days at $2.98 from Amazon.  

The book contained revelations not quite up there with Edward Snowden but it was a big deal at the time. Some aspects still, according to Archives. 

The number of withheld documents this year, in line with the recent years, is small in comparison with the number released.

However you have to wonder why so many of those released needed blanket freedom of information exemption for so long- most state government laws limit the application of the cabinet exemption to 10 years although other exemptions may still then apply to protect sensitive information. No such provision in the Commonwealth act where the cabinet exemption applies until the open access period, moving towards 20 years, kicks in.

Apart from the Spycatcher memorandum, another notable withholding is Submission 4207 "Project Nulka." The Department of Defence in October 2013 was very pleased to commend the book Nulka: A Compelling Story about an Australian ship defence system that is our largest regular defence export.

In the current climate of revelations about US and Australian intelligence gathering, and difficulties in our relations with Indonesia and East Timor the withholding of all or parts of cabinet papers concerning Security and intelligence, and Foreign Affairs ("Australia–Indonesian relations – prospects and approach"; "Australia–Indonesia maritime delimitation negotiations") will lead to plenty of speculation about what is still sensitive 27 years on.
(Update: See Paul Chadwick in The Guardian for an interesting comparison of issues of the 80's and current Snowden related matters. Welcome back to journalism Paul.)

Again this year there are a number of partial withholdings about Antarctica-probably confirming what most who take an interest in the subject know, that Australia's sovereignty claims are shaky if not quite as thin as a melting ice shelf, but we wouldn't want to let on at any time if we can help it.

The list of withheld documents follows. 

OWE – open with exception - means partial release, 'Closed', wholly withheld. 
Section 33 (1)(a) of the Archives Act provides exemption for "information or matter the disclosure of which under this Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth." As with other exemptions in this part of the act there is no public interest test. Decisions to withhold are subject to review by the Administrative Appeals Tribunal

NSW cabinet documents

Sean Nicholls in Fairfax papers on Saturday reminded NSW Premier O'Farrell of freedom of information commitments made in Opposition that haven't been heard of again in the two years since the government was elected:

... the ''proactive'' release of contemporary cabinet documents was a recommendation of a 2009 Ombudsman's inquiry into freedom of information laws. O'Farrell, as opposition leader, told parliament: ''The Coalition will implement the Ombudsman's recommendations regarding the proactive release of certain cabinet information.'' He also said: ''We believe that the quarantine period on cabinet documents should be reduced to the completion of two terms of Parliament - that is, eight years. In other words, we strongly believe that cabinet information should be out of the public domain for only eight years.''

NSW was first to put a 10 year limit on the application of the FOI act to cabinet documents way back in 1989. There things have stayed while Queensland, the ACT and South Australia have nudged a little further.

Decade old SA cabinet documents published, in an unexciting first

The South Australian Government has pro-actively published selected 10 year old Cabinet documents. It's a positive policy step on from that taken by former premier and current High Commissioner in London Mike Rann in 2009 to limit application of the cabinet exemption to ten years. 

No-one seems to have got around in the meantime to amending the act. Policy is one thing but the SA FOI act (Schedule 1 Clause 1) in 2013 still stipulates the cabinet exemption is in force for 20 years after a document comes into existence.

As the Premier and Deputy Premier said the publication of the submissions is a first for SA.  It could of course go even further by publishing more relevant information, such as cabinet outcomes as in the ACT, and recent cabinet documents as in Queensland. (As could the Commonwealth, and the other states. And dare I ask, has anyone in Victoria brushed the cobwebs from the cabinet register required to be published by s 10 of the act?)

Also good to see the SA Government flag "further announcements in relation to the proactive disclosure of Government information after establishing a cross agency Govrnment accountability project" to be headed by the Deputy Premier. 

SA is years behind in this area with the FOI act requirement simply to publish information about structure and functions, the types of documents held, and policy documents as defined. The Commonwealth, Queensland, NSW and Tasmanian governments significantly expanded the publishing requirement in 2009-2010.

I'll leave it to the locals to discover any gems in the documents themselves.

This submission by then Minister for Administrative Services now Premier Jay Weatherill in 2002, noting the intention to draft a Freedom of Information Amendment Bill is, well, unexciting. It's the backdrop to this Bill if you are trying to connect the dots to changes at that time.

As Premier Mr Weatherill has the chance to deliver much more in a state well behind in the FOI reform stakes.

Some cabinet records still too sensitive for release 27 years on

The annual release by the National Archives Authority on 1 January of cabinet papers covered more than 700 records from 1984-85, the first two years of the Hawke government. 

You have to seriously question why some of these records are locked up tight for 27 years or so. Sure they were documents submitted to cabinet but many contain nothing of sensitivity. Most of the state freedom of information laws include an exemption for cabinet documents for 10 years. Beyond that other exemptions may apply depending on content and the effect of disclosure.The Commonwealth should follow this lead.

And we can only muse over what is still deemed too sensitive to release after all this time. Archives announced that "a small amount of material" was withheld from 30 of the papers released. One submission was wholly withheld, including its title. 

I haven't had a chance to look closely at what was withheld and the reasons except

information withheld from Cabinet Submission 3249 - Review of Australian honours system - Decision 6667, September 1985. 

The timing, just weeks after the decision by the Federal Court in the Kline case on FOI access to contemporary documents about the operation of the Honours system was exquisite.

The Archives summary was that disclosure of the redacted material would constitute a breach of confidence and the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person). (Archives Act s 33(1)(d) and (g)).

But the actual notice of decision reveals that deleted material now more than 27 years old contained information from "personal and private correspondence between the Governor General  and Her Majesty The Queen." As such documents are not subject to the Archives Act, "the public disclosure of this information would constitute a breach of confidence."

The personal affairs exemption claim seems to be based entirely on the assertion that the Governor General and The Queen were engaged in "personal communication." Really? It sounds official not personal to me. In any event the nature of the information seems almost certain to fail the personal affairs ("matter of private concern") test.

As Professor Anne Twomey has pointed out Australia doesn't control records relating to Governor-General/ Monarch communication.  Under UK law, disclosure of communications with the Queen and other members of the Royal household are absolutely prohibited from release for a minimum of 20 years from the time they are made, and then for the continuing lifetime of the relevant member of the royal family, plus an extra five years after their death. 

It's controversial in the UK, and in this neck of the woods hardly in keeping with standards of transparency we might expect from our head of state or her representative.

The absence of a public interest test in most exemption provisions of the Archives Act is a significant gap in the law regarding access to historical documents.

As to other records, most were withheld on the basis of an exemption claim under section 33(1)(a) of the Archives Act, "withheld to protect Australia's security, defence or international relations." Presumably its mainly spook material. But you have to wonder just how long is long enough before we can know all that cabinet knew at the time decisions were made about such matters as Long-term plans for Antarctic programs, Antarctic airfields, a proposed Aeroflot office in Australia, and International atmospheric experiments in Northern Australia, to name just a few.

Parts of three records, Review of Offshore Constitutional Settlement – petroleum and minerals, Review of Offshore Constitutional Settlement – titles legislation, and Briese allegation relating to the conduct of Mr Justice Murphy were withheld on grounds of legal privilege, something the ALRC recommended years ago should be removed as an exemption claim for archived documents.

Little cause for celebration from preliminary Victorian ruling relating to executive privilege

Victorian Greens MLC Greg Barber claimed a Round One victory following the Supreme Court decision this week rejecting the government's bid to summarily dismiss his application for a declaration that the parliament has power to order production of documents prepared outside Cabinet and considered by Cabinet or prepared by an independent contractor and considered by Cabinet. Justice Emerton said [34]:

"I could not be satisfied that the proceeding had no real prospect of success, or that it disclosed no cause of action or constituted an abuse of process based simply on the principle of comity and deference, or on the proposition that the courts may only determine the existence of a privilege as an incident of a controversy arising under general law."

But I'd hold the bubbly. The best that can be said is it isn't over..yet.

Justice Emerton [36-44] went on to list the significant obstacles that Mr Barber will have to overcome if he is to succeed on the substantive issues.

36. In my view, the principal difficulty faced by Mr Barber is that, on the facts presently before the Court, there appears to be no dispute between the Legislative Council and the Treasurer about whether the Treasurer was entitled to withhold the Deloitte report from the Council. The Legislative Council has passed a motion calling for the production of documents fitting the description of the Deloitte report; the Treasurer has responded to the Legislative Council by confirming the existence of the Deloitte report but asserting that on grounds of privilege, he is not bound to produce it to the Council as requested; the Legislative Council has taken no action to require the Treasurer to substantiate the claim for privilege or to compel the production of the Deloitte report. It might be inferred that the Legislative Council has accepted the claim for privilege and agreed to let the matter lie.

Justice Emerton decided [45] that although Mr Barber’s prospects of success appear to be poor on what has been presented to date, he couldn't rule he had ‘no real prospect of success’, let alone that the application for a declaration ‘would necessarily fail’.  With Mr Barber taking some comfort from this final observation:

"Nor am I persuaded at this stage that the proceeding discloses no cause of action or constitutes an abuse of process. It is appropriate that the issues be fully ventilated. Given the complexity of the issues of jurisdiction and justiciability and the limited context in which they were argued, even if I were satisfied that the proceeding had no real prospect of success, it would not be in the interests of justice to dismiss the proceeding summarily."