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Legal and Constitutional Affairs Legislation Committee
28/05/2015
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
National Archives of Australia

National Archives of Australia

ACTING CHAIR ( Senator Jacinta Collins ): I welcome representatives of the National Archives. We will move straight to questions unless you wish to make an opening statement.

Mr Fricker : No.

Senator XENOPHON: Welcome. In recent months WikiLeaks published more than half a million US diplomatic cables from 1978 that had actually been declassified by the US government. So all the other issues that apply do not apply to this—in other words, they were not leaked. Does Australia have a similar declassification program?

Mr Fricker : Not to WikiLeaks, obviously.

Senator XENOPHON: Obviously not to WikiLeaks. But in the US's declassification program, half a million US diplomatic cables from 1978 were declassified by the US government, so they are not leaks.

Mr Fricker : I am aware of the US government's declassification program, but I would not say that I am absolutely qualified to advise the committee on every aspect of it. But one difference between the American system and ours is that the US administration had a presidential directive to accelerate the declassification of documents, and the National Declassification Center was established in the US administration to accelerate the release of those documents. We, on the other hand, have a program as those records enter the open period, which is currently coming up to 1990. Then we will, in some cases proactively, examine and release records such as cabinet papers that are coming into the open period. Otherwise we wait for an application by an individual who wishes to access those records.

Senator XENOPHON: This is not a criticism, but that assumes that the individual is aware of what they are looking for. It is almost as though they must at least have an inkling of what they are looking for, in the absence of a proactive declassification program.

Mr Fricker : The records are described, so even if they remain in the closed period, or even if they have not yet been examined or opened, they can be found. They can be located through our finding aids and through consultation with our reference staff, by file title and series, et cetera. The existence of the file is known and the record is known, in which case a researcher can request that those records be examined.

Senator XENOPHON: Do you see the role of your office, or of the National Archives, as being to give advice to government about the declassification of documents? Is that within the remit of your statutory role?

Mr Fricker : Yes, I think it is, because our statutory role is to collect, preserve and make accessible the records of the Commonwealth. To make accessible the records of the Commonwealth, I feel, brings with it an obligation for us to do everything we can within our powers and within our resources to release those records to the public.

Senator XENOPHON: I think you are familiar with the report several months ago about the half a million diplomatic cables released in the US. Would you mind terribly taking on notice whether, based on what occurred that there, you are—and I am always reluctant in front of the Attorney to praise what other countries do, otherwise he will give me a line from The Mikado

Senator Brandis interjecting

Mr Fricker : Senator—sorry to interject there. Just for clarification, my understanding is that the WikiLeaks got a set of records which had been examined and released over many years by NARA, the national archives in the US. What WikiLeaks did was then to take that public domain information and put their own search engine over the top of it. And so there is nothing in that WikiLeaks release that represented of itself a new concentrated effort by the government. Those cables—many of them have been in the public domain for many, many years prior to WikiLeaks.

Senator XENOPHON: I understand that. I think it was just a convenient repository or a reference point for people to find the documents. But I guess my question to you is, and I am very happy for you to take this on notice, what advice and what programs are in place to ensure that archives are more easily accessible pursuant to your statutory obligation? I do not want to take it any further than that, but that would be useful. Could I just move on to—

Mr Fricker : I would be delighted to take that on notice. But I would be delighted to advise you here today that we are well advanced in our thinking down this track, and of course taking advantage of digital technology is a key part of that. So we are well advanced in developing our strategies through the uptake of, in particular digital technology, to make sure that we are, as rapidly as possible, examining, releasing and making accessible the records of the Commonwealth, which should properly be released into the public domain.

Senator XENOPHON: Yes. Can I just go to a matter that you may need to take on notice, but you are probably cognisant of it—I think I have touched on this at previous estimates. Can you tell us, either now or on notice, how much money has been spent from 2007 to 2015 in resisting applications made by any applicants to declassify Australia's knowledge of the Indonesian occupation of East Timor and related matters? It is something that you would be familiar with, I take it?

Mr Fricker : I do not think we should characterise it as how much money we have spent resisting. Because honestly, Senator, we encourage people to access records, that is why we exist. If I may be allowed to—I am happy to take that on notice but I think what you are asking—

Senator XENOPHON: Well, if you find the word 'resisting'—

Mr Fricker : is how much money have we spent examining records to make every possible record release to the public domain—is that what you are asking?

Senator XENOPHON: Perhaps I will put it in as neutral terms as possible—some would say 'resist', you may say 'examine'—but I think another way of putting it is that applications have been made for the declassification of documents in respect of East Timor and Australia's knowledge, or lack of knowledge, in terms of certain matters in respect of the Indonesian occupation. As a result of those applications, moneys were expended by the National Archives, resources were used. I am just trying to understand how much was spent in each of those years in respect of that. And I understand there was a relatively recent application that was in the AAT earlier this week.

Mr Fricker : Yes. I am delighted to take that on notice, Senator, provided that I have understood the question, which is how much is expended in us applying the Archives Act to make sure that records are properly released. If you will forgive me, and I am not being disrespectful, but I just worry about this characterisation that I am using some discretionary power to resist people's lawful entitlement to access records of the Commonwealth. We do not do that, but we are bound by the Archives Act. There are exemptions in the Archives Act, so if that is what you are—

Senator XENOPHON: The act does talk about accessibility though—doesn't it?

Mr Fricker : Yes, it does. But section 33 of the act is quite specific in prescribing those records which must remain exempt from access. I am pleased to take that question on notice, but I feel I am obligated to just put on record that that is the question that I would be responding to.

Senator XENOPHON: You are not in any way being disrespectful.

Mr Fricker : Thank you.

Senator XENOPHON: I understand your position in respect of that. But just to make it clear, however you want to classify it—the money is being spent, the applications were lodged. How much is being spent in terms of resourcing, in terms of retaining legal counsel or internally through the Solicitor-General's office—I am not sure how it would work? But how much money was spent in dealing with those applications? Perhaps I will use neutral terms, some would prefer resisting, some would say dealing with it.

My final question is not a trick question but it is something that intrigues me. National Archives has an arrangement whereby, for instance, former Prime Minister John Howard's papers are stored in the John Howard Reading Room located in the library of UNSW Canberra. Is that right?

Mr Fricker : That is correct.

Senator XENOPHON: And I think that is important. Even though I am not from that side of the political fence, I have enormous respect for him. What access arrangements govern these papers? Are they governed by the Archives Act or not?

Mr Fricker : The short answer is: yes, they are.

Senator XENOPHON: So if anyone wants access—

Mr Fricker : It is a distributed custody arrangement, as allowed for in section 64 of the Archives Act. These records remain the archival resources of the Commonwealth, but we have entered into what I believe to be a very productive and fruitful partnership with the university to enhance the accessibility of those records to the public. Every entitlement available under the Archives Act remains and the university is a willing partner in making sure that those records remain accessible, enhancing the level of access possible.

Senator XENOPHON: Why are they not stored at the National Archives? I am not being critical; I am just trying to understand why.

Mr Fricker : I am pleased to discuss it. Our role is to make these records accessible. Any lawful avenue I can use to make records more accessible, to encourage the public's engagement with Commonwealth records—I am very eager to take those partnerships up. It is a partnership we can enter into. It is a way for the Commonwealth to use its own resources more effectively and productively by allowing other agencies, other organisations, to partner with us to ensure accessibility of Commonwealth records.

Senator XENOPHON: And to all intents and purposes there is no difference—no lessening of anyone's legal rights to access those records—than if they were stored at the Archives?

Mr Fricker : Absolutely not.

Senator Brandis: I think you raise an important issue, Senator Xenophon, that I have taken a little bit of an interest in over the years—and that is the irregular treatment of prime ministerial papers. There is no standardised way that prime ministers' papers are held in this country. I recall from years ago, when I sat on the council of the National Library, learning that the papers of some prime minister are held by the National Library—including the Menzies papers and the McMahon papers. But the Menzies library is held by the University of Melbourne—Sir Robert Menzies' own personal collection of books. The Fraser papers are, I believe, held by the University of Melbourne. The Whitlam papers are, I think, held by the University of Sydney. The papers, such as they are, of some former prime ministers from earlier days are held by the family. We really do not have a standardised procedure in this country for holding prime ministers' papers—and I use 'papers' in the wider sense of the word. There are the documents that will always be in the custody of the Commonwealth because they are official correspondence, reports and minutes and so on. But then there are the private letters and diaries and other documents. It would be an interesting project to try to have a standardised way of holding and cataloguing prime ministers' papers.

Senator XENOPHON: I am reassured that the same rules apply. I note what the Attorney has just said about whether there is standardised treatment of or access to prime ministerial papers. But I think my time is up.

CHAIR: It is.

Senator Brandis: I am sorry. I did not mean to intrude on your time with that observation, Senator Xenophon.

Senator XENOPHON: That is fine.