Search This Blog

Friday, February 05, 2021

Senator Patrick chalks up important FOI win

He''s a vigilant determined defender of the spirit and intent of freedom of information.

May the wind be at his back!

In the Senate on Tuesday Senator Rex Patrick recounted a drawn out and eventually unsuccessful attempt by the Department of Prime Minister to deny access to the complete performance audit report into the handling of a $1.3 billion dollar Defence contract for the procurement of the Hawkei light protected mobility vehicle from Thales Australia Ltd. 

The government had refused to table the complete report in response to a Senate Order; Attorney General Porter issued a (rare?unprecedented?) certificate under the Auditor General's Act preventing disclosure of parts of the report on public interest grounds; and various FOI exemption claims, some dropped on the way, were advanced on this journey to the Administrative Appeals Tribunal.

Deputy President Britten-Jones concluded no additional harm to national security or Thales commercial interests would result from disclosure, given information already in the public domain in a redacted version of the report, and information made available by Thales when it commenced Federal Court proceedings in January 2018. 

The Deputy President[ 70-78] was dismissive of another claim that the Auditor General's analysis and conclusions involved deliberative processes: "Rather than disclosing a deliberative process, the Redacted Report discloses a final conclusion based on an analysis of factual findings.....Section 47C does not operate to disallow access to a report of this nature generated by an independent officer of the Parliament exercising his statutory functions. The Disputed Material is not conditionally exempt under s 47C(1) of the FOI Act."

Senator Patrick posted the report and relevant documentation following notification the decision will not be appealed, observing

"In this matter the Attorney-General’s judgement was clearly unsound. He was  incapable of properly assessing national security claims This raises a most serious question - what else has the Attorney-General got wrong in the national security space?”


Senator Patrick in the Senate 2 February

 Before I commence my adjournment speech, I seek leave to table Auditor-General's report No. 6 of 2018-19, Army's protected mobility vehicle—light, a confidential report issued under section 37 of the Auditor-General Act that has now been released under FOI.

Leave granted.

For the first time the parliament is now able to see the material that was prepared for parliament by the Auditor-General but was then subsequently censored by the Attorney-General using a never-before-used power under section 37 of the Auditor-General's Act. I obtained it under freedom of information laws after the AAT found that there was nothing sensitive in it and ordered the Prime Minister to hand it to me.

I want to give some context here, some background. On 11 March 2017 the Auditor-General commenced a performance audit into the procurement of the Hawkei light protected mobility vehicle from Thales Australia Ltd by the Department of Defence. By about December 2017, so some seven or eight months later, the Auditor-General held a draft report substantially in the form in which he intended to table it in the parliament. Both Thales and Defence were aware of the content of the draft report as it stood at that time.

On 5 January 2018 Thales applied to the Attorney-General for a certificate under paragraph 37(1)(b) of the Auditor-General's Act in respect of certain contents in the draft report on the basis that the publication of this content would be contrary to the public interest because it would unfairly prejudice Thales's commercial interests. It took some time, so the parliament was then delayed having access to any audit.

On 28 June 2018 the Attorney-General issued a certificate under section 37 of the act which stated that, in his opinion, 'inclusion of certain information contained in the public report would be contrary to the public interest for one of both of the following reasons: it would prejudice the security, defence or international relations of the Commonwealth and it would unfairly prejudice the commercial interests of any body or person'. So there was a claim being made by the Attorney-General that the information that the Auditor had prepared was in actual fact national security sensitive and commercially sensitive.

On 11 September 2018 a redacted report was published by the Australian National Audit Office. On 6 September, so just prior to that point, the Auditor-General actually sent a confidential version of what I will call the public report to the Prime Minister's Office. Because of the unusual exercise of the power the JCPAA conducted an inquiry into the censoring. Report No. 478 of the JCPAA is a report entitled 'Issuing of a Certificate under Section 37 of the Auditor-General's Act 1997'.

In that inquiry the Auditor-General made a submission which is highly instructive. In amongst that submission he said:

Much of the information required to be omitted from the audit report to Parliament was analysis by the ANAO. Further, the required omissions reached into the Auditor‐General's audit conclusion relating to the audit objective, which was to assess the effectiveness and value for money of this acquisition.

So a primary focus of the Auditor-General is: do our procurements achieve value for money? And he was being prohibited from providing his views to the parliament. He also said:

The Auditor‐General remains of the view that the public interest was clearly balanced in favour of disclosure of his full audit conclusion and the ANAO analysis, on the basis that the Parliament, the Executive and the public would reasonably expect to be informed as to whether Defence conducted an effective procurement process. Further, the Auditor‐General has not received any information which would suggest the particular information the subject of the certificate could otherwise be withheld from the Parliament on the basis of a claim of public interest immunity.

So there you have it: the very experienced Auditor-General making it very clear that what was in his report was not sensitive.

Now, that might well have been the end of it except that I was disturbed by this censoring and I sought the report under FOI. The government fought tooth and nail to prevent me having access to this. The first claim was that the PM's office was performing an Auditor-General's function, and therefore the document couldn't be obtained under FOI. Somehow the Prime Minister thinks that the Auditor-General resides in his office. The second attempt was by the Prime Minister's barristers to claim that it involved complex constitutional issues and issues of parliamentary privilege. And then finally we got down to, 'Does it have national security or commercial issues associated with its disclosure?'

It's interesting that during the proceedings, barristers for the Prime Minister submitted this. I'll read this; it's one of the most incredible things I've ever seen in an FOI argument, 'The respondent says that the publicly available information cannot be disclosed because it is inexorably interwoven with the analysis that the respondent claims is exempt from disclosure.' And, 'Disclosing the publicly available information in the context in which it appears in the report will inferentially disclose much of the substance of what the respondent seeks to protect by its exemption claims.' We have a barrister for the Commonwealth arguing that the Commonwealth shouldn't be required to disclose publicly available information. The AAT found that it was neither national security sensitive nor commercially sensitive.

Let's have a look at what was considered sensitive. Just looking at some of the information on page 6 of the report that I've tabled, it says, 'Defence has not clearly demonstrated that the acquisition provides value for money as it did not undertake robust benchmarking in the context of a sole source procurement.' That's the Auditor-General saying that if you do a sole source contract—so you go only to one player—you must, as a matter of good practice, go and see if you can establish whether the price is reasonable that you are being charged by the person who is the recipient of that sole source contract. Somehow that statement was considered by the Attorney-General as national security sensitive. It wasn't national security sensitive, it was embarrassing for the Department of Defence. It wasn't commercially sensitive, it was embarrassing for the Department of Defence.

Again, 'Publicly available information suggests that the non-audited per unit price difference between the Hawkeye and the Joint Light Tactical Vehicle exceeds the price difference advised to the government at second pass.' The Auditor-General is saying that Defence misinformed the minister. Somehow that is national security sensitive and somehow that is commercially sensitive. We have a vehicle cost comparison that was conducted by the Auditor-General that is basically considered to be confidential, even though the analysis was done by officials in the Auditor-General's office using publicly available information.

Two things come from this. Firstly, this goes to the Attorney-General's competence in respect of making judgements about national security. Clearly, he failed in his exercise of judgement in this instance and it makes me worry about things like Witness K, Richard Boyle, David McBride and media raids. It's all of those sorts of things where permission has been obtained in respect of things like prosecutions—some of them now sensitive because of national security—when we have an Attorney-General who simply doesn't understand national security.

But it also goes to the general transparency, or lack thereof, of the Morrison government. So many OPDs in this place have been refused by this government and then I've obtained them under FOI. There's this fairy dust claim over every matter before the national cabinet when, in fact, the national cabinet is not a traditional cabinet, and we'll find out at some stage that it doesn't actually qualify. Democracy requires engagement and it requires informed engagement, and we're not getting that.

No comments:

Post a Comment