Search This Blog

Monday, January 09, 2012

FOI frustration for Schapelle Corby but not the death of democratic rights

I wasn't aware of the Expendable Project until alerted by a comment from Jan Wilson on the recent post about Schapelle Corby, and haven't immersed myself in its claims about government skulduggery. But I have read the FOI Abuse Report, one of many, about freedom of information applications made on her behalf to a number of agencies, and what transpired.

FOI always has the capacity to disappoint which it has done in this case. But I don't see anything persuasive to support the claim that 
"Schapelle Corby's democratic and legal rights, under freedom of information legislation in Australia, have been revoked."

Some comments.

It was a mistake for the applicant to ask for "all documents held about Schapelle Corby", given the history and the passage of time, thus leaving it open to those agencies that had many documents to refuse on the basis of substantial and unreasonable diversion of resources.
FOI 101: Frame the application as narrowly as possible, given what it is you are really after. Specify the period of time of interest. Be prepared to negotiate when faced with a substantial and unreasonable diversion of resources response, particularly when it is supported by what appear to be reasonable estimates of the time involved in processing the application.You can always follow up with a somewhat informed subsequent request.
There is nothing wrong with an agency querying the validity of an agent's authority to act on an applicant's behalf, particularly when the power of attorney produced in favour of Corby's sister was only to take effect in the event of loss of mental capacity. This isn't ducking and weaving for ducking and weaving sake.

Stuff-ups when a decision maker is dealing with many documents, like redacting small amounts of information already in the public domain, can happen and may be indicative of excessive caution, but are usually quickly addressed when brought to attention.

For Customs to respond that it only held 11 documents about Corby (all released in full) would have come as a surprise to me too-and might sensibly be challenged on the basis of inadequate search, difficult as that is.

Then there are the exemption claims. It's not surprising they crop up when it comes to information about the police, investigations, international relations etc. And there is plenty of potential for argument about whether the law has the balance right, and whether the decision maker in a particular case made the correct decision. But getting stuck into the decision maker, in the AFP for example, for making the judgment required by law about such matters as the public interest seems a bit rich.  (Some aspects of AFP decisions are before the AAT, so it it will be interesting to see how they hold up to external scrutiny.)

The call that the ABC has “exempted itself” from the FOI act is wrong. In fact the ABC (and SBS) enjoys a generous specific exemption in respect of program materials. That exemption has been broadly interpreted by the courts, but it’s in the legislation as passed by parliament. I’ve been rabbiting on about the need to narrow it for years.

On a positive note, I wasn't aware The Expendable Project's FOI foray had come up with a referral letter from Customs to the AFP dated 1st June 2005 containing important evidence that would have been valuable to Allan Kessing as he was pursued through the courts under s 70 of the Crimes Act. The letter was not made available to his lawyers, or the court at the time, and has been mentioned frequently here and elsewhere since it emerged in support of Kessing's application for a pardon. Good for them.

And good to see activists using FOI to pursue what they see as an important cause, with no mention of any charges, presumably because of the November 2010 changes for personal information requests. Lots of frustration-welcome to the club, and thank goodness for the Australian Information Commissioner who has power to investigate complaints.

But I'd hold the death call on democratic and legal rights


  1. Mark James8:06 pm

    I read that report too.... but I read it from an objective viewpoint, which you do not appear to have done, presumably because you are immersed in the legal system which produced it.

    There is no bizarre sequence of failures there. The statistical probability of all these refusals being unrelated is zero.

    Perhaps you ought to read the other Expendable Reports, rather than skip this essential background. You will see why the state of Australia has plenty to hide.

    Given this, it was entirely predictable that FOI requests would be subverted. That corruption in government would be hidden.

    Expendable uncovered it anyway, but the point here was that it wasn't volunteered. It was hidden. It was hidden deliberately. Perhaps in the same way that the media has failed to report any of the cables/letters which prove gross abuse of government office, in the sale of Schapelle Corby supress what was really going on at the airport and in the AFP. Not one column inch, yet ministerial cables demonstrate a scandal.

    It says a lot about Australia - the government and the media.

    You need to look at the bigger picture Mr Timmins, the actual context. You need to take off your rose tinted specs with all those abuses of the FOI Act, across so many departments. You are making excuses for something you are failing to understand.

  2. Anonymous9:27 pm

    Maybe those abuses have something to do with the wilful withholding of vital primary evidence

    Or the ABC's manufacture of fabrications using the 'Dead Men Can't Sue' freedom to lie, by viture of feeble Australian law:

    Or the DPP's subversion of the Australian judiciary in theiving Schapelle Corbny's legal appeal fund:

    Or DFAT's disgraceful manipulations in stopping the testing of the marijuana Schapelle was begging for:

    Or the hundreds of other cases which should land Australian politicans and AFP officers before the courts.

    Welcome to the real world. It is a world in which this material has to be hidden, and in which the Freedom of Information Act is abused to prevent the victim obtaining evidence which may save her life.

    It is a world in which American film makers have to expose all this, because the Australian establishment have the media, and the public, so well locked down that they can get away with what may amount to murder of one of their own citizens.

  3. Re this quote of yours:

    "There is nothing wrong with an agency querying the validity of an agent's authority to act on an applicant's behalf, particularly when the power of attorney produced in favour of Corby's sister was only to take effect in the event of loss of mental capacity. This isn't ducking and weaving for ducking and weaving sake."

    Mercedes holds formal and legal power of attorney for Schapelle NOW, as she did at the time of the rejected FOI request - period. Schapelle has been diagnosed with a very severe psychotic depression, by no less than Dr. Jonathon Phillips, a former President of The Royal College of Australian & NZ Psychiatrists. Further, as a qualified psychiatric nurse myself (registered since 1978, and still working in the field), I can fully assure you that this condition would (and does), stop Schapelle from making decisions on her own behalf. In fact, I'm amazed she's still alive, given the intense treatment and nursing supervision her illness would require in Australia. As for the "Death of democratic & legal rights," believe me, in Schapelle's case they have been fully revoked.

    Every frame of CCTV relating to either Schapelle or her luggage (from 3 Australian airports, plus Bali airport), was destroyed without explanation & all the physical evidence was burnt without forensic investigation (for fingerprints, human DNA & plant source) & WITHOUT the AFP invoking the Mutual Assistance in Criminal Matter Treaty to request these tests - despite . . .

    Australian Customs (and the United Nations Office on Drugs & Crime), confirming there is NO illegal, commercial flow of marijuana FROM Australia, TO Indonesia, and there never has been. Schapelle is the only person ever (before or since), charged with this crime.

    Schapelle's complete lack of any criminal record, or any criminal profile (the latter confirmed by Prof. Paul Wilson, Head of Criminology, Bond University).

    Qantas/Sydney Airport baggage handlers (with extensive criminal histories), using other unwitting passengers as innocent drugs mules during the exact hours Schapelle flew. Link to The Telegraph article here:

    Then Google these terms (each in turn):

    Easton Barrington James

    Norman Niass


    For more background on the long-term and serious criminal histories of the baggage handlers (including the trafficking of marijuana).

  4. There was also an extensive history of insider criminality at Australian airports, as confirmed by both Allan Kessing and Ray Cooper (former Head of Internal Investigations for the AFP). Here's the link to Ray Cooper's comments:

    Further, despite full admissions from the AFP (in a 2009 report to the Senate, I can provide the reference if you wish), that QANTAS baggage handlers were involved in smuggling millions of dollars worth of cocaine into Australia in 2004, quite bizarrely, none of them were ever arrested or charged. Steve Jackson (Head of Security, Qantas), confirmed this in a phone call to my home in August 2010, and Qantas also confirmed this in another formal report to the Senate dated 2005.

    However, the senior police officer heading the "Investigation" of these baggage handlers (including his mate now code-named "Tom"), was Mark Standen - do I need to explain where Standen languishes as I write this?

    Then neither the AFP (or the Queensland Police), did any investigations at all into the Australian grower and supplier of the marijuana found in Schapelle's bag (I have letters from both relevant ministers, completely denying responsibility for this, and pointing the finger at each other - sent with a few days of each other).

    Then the Indonesians point blank refused to weigh Schapelle's luggage, to compare the arrival figure with the Brisbane check-in weight (an extremely obvious investigation in anyones book) - going on to award her a term at least 4 times higher than that given to any Indonesian (ever), found with a similar amount of marijuana, and twice as high as an Indonesian man found with nearly 40 times as much as her.

  5. I wonder if this latest FOI request of mine is specific enough to the money (from 3 kilos of cocaine), that the Former Assistant Commissioner to The NSW Crime Commission spirited out of the country, to Switzerland:

    Any opinion on that Peter?

  6. Belle8:14 am

    I have an opinion, Kim. Mine is that a nation which sells a citizen, to hide criminality at a newly privatised airport, is a rogue state.

    Expendable have published report after report, stuffed with the government's own letters, proving what the politicians there are: corrupt. The media there is even more vile, blanking it all, and spinning proven lies to the masses instead.

    How can those letters, like Ellison's, not be massive news? How can ministers caught withholding CRITICAL evidence from a court not be major news? How can blatant proven lies to Parliament not be major news?

    And the media there know about it all. SILENCE.

    Anonymous makes a good point. Australia is what it is. Fortunately, the propaganda and censorship ends at that nation's borders. At least the rest of the world will see what it has done to Schapelle Corby, and what Australia has become.

  7. Thanks for the comments. Australia's FOI laws are generally reasonable by international standards, and with a couple of state government exceptions, much improved in the last few years. The Commonwealth act was recently ranked 39 in a world survey by two respected international NGOs. So there is plenty of room for improvement, and discussion and debate about that will be never-ending, I expect. Too many other secrecy laws remain on the statute books and excessive secrecy is still a feature in many agency cultures. Implentation of the law is patchy, and the tendency in some agencies is to take advantage of the wriggle-room afforded. But independent review plays a part in keeping the system somewhat honest.

    Perfect-far from it. Up to Julian Assange standards-not by a long shot.

    I understand the frustration over these FOIs. I'd be surprised if there aren't legitimate grounds for challenging some aspects of the decisons.

    But I doubt whether there is some government wide conspiracy to manipulate the FOI process, or that the media collectively has decided to keep things under wraps.

    And Kim, that sure was a specfic FOI request but given the nature of the information involved, I wouldn't bet the house on success.

  8. Belle9:17 pm

    Then explain the media silence on the government cables/letters Expendable has dug up, Peter. They are blatant, and they are criminal in nature. Why silence? Why spew the smears instead, when they KNOW they have been debunked?

    Why has not one single Australian newspaper referenced them at all. Have YOU even read them? Why not?

    Have you actually read their media reports, on how the smears were constructed? If you are going to dismiss something, you really ought to take the trouble to research it.

    Ditto all those government departments.

    Read their reports, and then it might sink in why they are running for cover when an FOI request comes in.

    It is easy to sweep your hand and say no 'conspiracy'. That is, after all, what you have been indoctrinated to do. It's a word which was developed for such use, so that people like you can use it to dismiss truth.

    It isn't conspiracy, it is POLICY. Schapelle Corby's life was sold to hide the criminality within SACL, newly privatised, with CEO Moore-Wilton, Howard's mate, in situ.
    It is Australia the rogue state, with people like you running around finding excuses to hide from it.

    Read your government's own cables, and stop hiding. Your nation is increasingly being exposed on this, and you have no idea how ugly it looks to the rest of the world, as this spreads.

  9. Re this comment Peter . . .

    "And Kim, that sure was a specfic FOI request but given the nature of the information involved, I wouldn't bet the house on success."

    Why is that? Do you think those in authority reckon career criminals like "Tom" (and I also include Mark Standen in that definition), are entitled to their privacy when they take the proceeds from the sale of 3 kilos of cocaine out of the country, and deposit it secret Swiss bank accounts? However, I will appeal the outcome if I don't get the required info, as far as it needs to go - publicly blogged every step of the way. And as for this comment . . .

    "But I doubt whether there is some government wide conspiracy to manipulate the FOI process, or that the media collectively has decided to keep things under wraps."

    Every media outlet in Australia has been formally notified of the massive discrepancies in Schapelle's case, including a fact which has only just come to light), e.g. that the bag in question was quite illegally (and horrifically, given the Lockerbie disaster), diverted from the required screening processes after she checked it in, plus this core info was quite deliberately kept from her legal team (and the rest of the Australian public) - as confirmed via ministerial and AFP letters. Not one outlet has chosen to report that extremely newsworthy fact, instead choosing to extensively run (quite recently), with easily debunked (and checkable), lies. It was reported Schapelle's Father was "Running drugs" to Bali. Firstly, every formal source (including Australian Customs & the United Nations), confirms there is NO commercial flow of marijuana FROM Australia TO Bali (and there never has been), because it's over a hundred cheaper in the latter location - plus Michael Corby had no criminal record, and both the SA Police and the Queensland Police issued formal statements trashing (and completely contradicting), those bizarre claims. In fact, to underline the stupidity and lack of professionalism, not a single journalist picked up on the fact the central "Informant" for this BS said Michael Corby was selling high grade marijuana in Bali for $500 an ounce, when United Nations figures (for the period in question), clearly show it was selling in here Australia for around $1,200 ounce. I suggest Googling each in turn (& then clicking on the top links), for more detailed info:

    Eamonn Duff

    Eamonn Duff Sins of the Father

    What explanation is there for that? I can can only comment that as a Registered Nurse, if I did my job like Australian journalists do their's, my patients would die like flies - further, I suggest you check out The Guardian's continued reporting of the Leveson Inquiry. In my opinion, anyone who thinks the situation is much different over here is naive - and how easily we forget the bizarre (and completely untrue), "Facts" that were reported (and repeated), in the Lindy Chamberlain case.

  10. I was athe FOI Manager for the NSW RTA and the Chair of the NSW FOI Practitioners' Network for nearly 20 years. There is no state wide conspiricy within the FOI Officers.

    I believe the exemptions for specific agency functions should be removed.There is plenty of protection in the Grounds for Refusal.

    Under the new NSW GIPA Act witholding, destroying, interfering with or directing people to withhold information is a criminal offence.

    Given time and a few people being used as examples any such behaviour, if it exists, should cease.

    If anyone needs my help in relation to FOI (now GIPA) contact me.

    Phillip Youngman

  11. Anonymous5:20 am

    In the Federal bureacracy, FOI Officers are often not decision makers but merely coordinate requests. Oftentimes they do not have a great deal of experience and are guided by divisional managers and their interests, sometimes giving advice as outlined in the Act, particularly around exemptions.

    The Kessing and Corby examples further demonstrate the theatrics of national security and border protection arrangements as it is managed by successive governments. It shows manipulation using the fear factor and the 'look at what we are doing about...' party political spin. The reality is very different. There is no other explanation for a department resisting publication of a report outlining criminal activity in their own sphere of influence and of which they are responsible.

  12. Wilf Mentink11:27 am

    I've had a lot of dealings with FOI units and internal decision makers. One would expect that an FOI head in an agency would have some legal training if not being a qualified lawyer. I suspect that internal reviewers receive backroom drafts to sign that are written by in-house lawyers or whoever.

    That's aside.


    Some time ago I found the "expendable project" on the net. Like a conscientious juror, I refuse to decide whether Corby is guilty of innocent. Her guilt or innocence is irrelevant to the matter raised about the conduct of AFP and, subsequent to her arrest, of government generally. Endowed with youth and considerable physical charm, Schapelle attracts supporters. It seems to me that the people who have thrown their weight behind Corby's innocence are virulently anti to any person who will not join them.

    I wrote to the Expendable Project seeking information that might assist in getting a clearer picture of what happened. The person who replied immediately became extremely vitriolic and irrational - no servant to the cause, I can tell you. The person seemed quite burnt out - something with which I sympathize entirely on the basis of my personal experience.

    My personal experience informs me that the AFP are capable of ANYTHING, especially outside Australia. The AFP, in cohoots with DFAT and the ABC, manufacture dramatic theatrical scripts that involve the sacrifice of individuals and SELL.