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Legal and Constitutional Affairs Legislation Committee
22/10/2020
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
National Archives of Australia

National Archives of Australia

[10:08]

CHAIR: I welcome officers representing the National Archives of Australia. Thank you for your time this morning. Would you like to make an opening statement before we go to questions?

Mr Fricker : Yes, Chair, I would.

CHAIR: Given that we're a little behind, I ask that it be economical.

Mr Fricker : I'll do my best, thank you. I'll introduce the principal priorities in front of the National Archives at the moment, as it might be of interest to the committee. The principal role of the National Archives, of course, is to ensure that all Australians have access to the essential evidence and decisions of the Commonwealth government. We have performed this role by exercising the powers and functions prescribed by the Archives Act 1983.

The act assigns to the National Archives the responsibility to oversee record keeping across the Commonwealth through the determination of standards and the provision of advice. Under the act, it is an offence for any person to engage in conduct that results in the destruction or disposal of any record unless that conduct has been authorised by the National Archives or by another law. In today's government, the overwhelming majority of Commonwealth records are created in digital form. Records are found in the data holdings of email systems, financial management systems, case management systems, shared drives, document management systems, social media posts and mobile devices. So our legislated responsibility to oversee record keeping therefore requires us to issue standards and advice that ensure the Commonwealth's digital information management systems and data governance structures adequately protect the integrity of the Commonwealth record. Right now we're heavily focused on finalising our next policy release on record keeping, to take effect from 1 January 2021. The policy is titled Building Trust in the Public Record, and it provides advice for Commonwealth entities to manage information assets strategically with appropriate governance and reporting, implementing fit-for-purpose information management processes, practise and systems; to support information asset creation, use and reuse; and to reduce areas of information management inefficiency and risk to ensure public resources are managed effectively.

The act also specifies that any records that have been identified by the National Archives for permanent preservation must be transferred to the care of the Archives within 15 years of the record coming into existence. This requires a huge uplift in the digital capability of the National Archives. We are therefore directing whatever resources we can into the substantial upgrade required to our technical infrastructure and our digital skillset, including data storage, digital preservation, secure connectivity and, of course, cybersecurity. The act also obliges the National Archives to make Commonwealth records available for public access once the record is more than 20 years old, unless the record meets one of the specified exemptions. Fulfilling this requirement of the act is placing a strain on our resources. Currently, we receive about 45,000 applications for access each year, and we have the capacity to complete around 40,000. Consequently, we have at present around 19,000 applications for access that have not been completed within the statutory consideration period. We continue to explore alternatives to clear that queue.

The National Archives collection is vast: some 40 million items occupying over 350 shelf kilometres and over a petabyte of digital material. Much of the collection however is on fragile media and requires active preservation if it is to be kept accessible and usable into the future. A particular preservation priority for us relates to the 270,000 audio and video items held on magnetic tape. These records are at serious risk of loss over the next five years due to obsolescence of playback equipment, disintegration of the media and the loss of skilled engineering and maintenance staff. They need to be digitised; otherwise this important record of 20th century Australia will be irretrievably lost. All of these pressures must be balanced with our commitment to public engagement to promote the appreciation and use of Australia's archival resources and to ensure Australians enjoy access to their public records.

We are the only cultural institution with public premises in each Australian state and territory, and across Australia we conduct outreach activity, education programs and touring exhibitions. As a national cultural institution we serve to represent Australian values within Australia and to the world. We have a soft power influence. Last year, our international conference attracted over 600 people from 61 countries to Adelaide, South Australia. And our strong online presence and international engagement contributes practical, professional resources to many other countries, most notably in the Pacific region. In an age characterised by misinformation and disinformation, the work of the National Archives is as important as ever for the integrity and accountability of public administration, to uphold individuals' rights and entitlements and to connect all Australians with their national memory and their identity. Thank you, Chair, for allowing me to make these brief opening remarks.

CHAIR: Thank you very much, Mr Fricker. We will break now.

Proceedings suspended from 10:14 to 10 : 30

CHAIR: It being 10.30, we'll now resume. I said I would give the call to Senator Chisholm, but I'm actually going to give it to Senator Keneally.

Senator KENEALLY: Thank you, Chair. Thank you to the officials who are here today. Senator Duniam, my question is actually to you. Can you guarantee that no ministers or their staff were aware of Senator Stoker's line of questioning in relation to the aged-care royal commission in the previous session?

Senator Duniam: I'm just trying to understand how you would propose I go and canvass every minister and ask them whether they were aware of—

Senator KENEALLY: Well, you're the minister in the chair. You're the only person I can ask. I'd like to know: can you give me an answer as to whether any government ministers or their staff were aware of Senator Stoker's line of questioning, or assisted her in preparing it, in launching what was an attack on the aged-care royal commission staff?

CHAIR: Senator Keneally, we need to stop there for a moment. This is the National Archives. The opportunity to ask questions arising from the recalling of the royal commission was in the previous session, which wrapped up, according to my notes, at 10.10 am. We're now dealing with the National Archives. If you've got questions about the National Archives, you're welcome to ask them. If they're not about the National Archives, I'll rule them out of order.

Senator KENEALLY: This matter has just been brought to my attention from watching the proceedings of these hearings.

CHAIR: You had the same notice that everybody else had.

Senator KENEALLY: I seek to ask the minister in the chair, representing the government, a question.

CHAIR: It's out of order unless it's about the National Archives.

Senator KENEALLY: We've got a royal commission. We have 683 people who have died in aged care, and what are senators caring about? Tweets—

CHAIR: No. We're caring about the integrity of the process.

Senator KENEALLY: not about the fact there is a report entitled Neglect

CHAIR: Senator Keneally, if you would like to grandstand, you can do it in front of the media outside, but we are talking about the National Archives. I'm sure Mr Fricker would love some questions about the National Archives.

Senator KENEALLY: I find it extraordinary. With 683 deaths in aged care—

CHAIR: Senator Keneally, you no longer have the call. Senator Patrick.

Senator KENEALLY: There are maggots in their rooms. People are going hungry. We have an interim report called Neglect

CHAIR: Senator Keneally. This is about the National Archives.

Senator KENEALLY: and what is Senator Stoker doing? She's asking questions about the aged-care royal commission staff.

CHAIR: We're on the National Archives.

Senator KENEALLY: Has any government so clearly undermined a royal commission—

Senator HENDERSON: Point of order!

CHAIR: I know there's a point of order, but Senator Keneally is absolutely ignoring the proper rules and procedures of this place. I ask that she respect them. If Senator Keneally cannot confine herself to the National Archives, which is the subject of this session, she no longer has the call. Senator Patrick, you have the call.

Senator PATRICK: Thank you, Chair.

Senator KENEALLY: Point of order. I would like to request—

Senator HENDERSON: No, I'm sorry; I had a point of order first. I raised my hand first.

Senator KENEALLY: Sure.

CHAIR: Yes, you did. Senator Henderson.

Senator HENDERSON: Thank you. Chair, I would like to draw to your attention—and it's quite clear and evident—that Senator Keneally is being completely out of order and unruly. As a committee, if this conduct continues we probably should take further action. But I would again say to Senator Keneally that her conduct is out of order and ask here to please come to order.

CHAIR: Senator Keneally, as you have not taken the opportunity to ask questions about the National Archives and you are deliberately flouting the rules, I think there is some substance to what Senator Henderson has to say. I do not intend to let you misbehave in the way that you have been doing over the last few minutes. You had a point of order of your own?

Senator KENEALLY: Thank you, Chair. I would like to move that this committee have a private meeting to resolve whether I can continue to ask questions of the government minister in the chair, Senator Duniam, about the knowledge that government ministers had of Senator Stoker's questions in relation to the tweets rather than the deaths that have occurred in aged care.

Senator HENDERSON: That is blatantly out of order!

CHAIR: The committee is suspended. We will go to a private meeting.

Senator KENEALLY: And I flag to the committee—

CHAIR: No. We're suspended.

Proceedings suspended from 10:34 to 10 : 39

CHAIR: The committee have resolved in private meeting that the resolution sought by Senator Keneally to return to the subject of royal commissions—even though that matter has been closed off and even though Labor senators were present and had the opportunity to ask questions at the relevant time—has not been carried. As a consequence, we will continue our examination of the National Archives, with Senator Patrick having the call.

Senator PATRICK: Thank you, Chair. Mr Fricker, I want to go to the palace letters cases. I want to get some facts before the committee first. My understanding is that the original application to get the palace letters was in 2011—around about that time?

Mr Fricker : I believe that is the case.

Senator PATRICK: You weren't there then?

Mr Fricker : No. I commenced at the beginning of 2012. But I think the substance behind your question—the answer would be yes. It goes back many, many years that people started seeking access to those letters.

Senator PATRICK: For clarity, have you been involved as a decision-maker in any of the palace letter proceedings?

Mr Fricker : Yes.

Senator PATRICK: You were a decision-maker in one of the cases or in Professor Hocking's case?

Mr Fricker : Yes.

Senator PATRICK: You made a decision to deny access to the documents?

Mr Fricker : That's correct.

Senator PATRICK: The matter was then referred to the Federal Court. I believe the AGS represented the National Archives in the Federal Court?

Mr Fricker : That's correct.

Senator PATRICK: The costs associated with that were $1,260, according to an answer you provided me—Jenny Hocking versus the Director-General of National Archives in FCA.

Mr Fricker : Yes. If that's the answer I provided you that would be correct.

Senator PATRICK: The matter then got appealed to the Full Court. You were represented by the AGS and the Solicitor-General. Is that correct?

Mr Fricker : At the Federal Court—

Senator PATRICK: I'm talking about the full Federal Court.

Mr Fricker : If I could take that on notice. I believe the answer is yes, but I should confirm that.

Senator PATRICK: Your caveat is noted, thank you. The costs there were $5,781.47, according to an answer you provided.

Mr Moraitis : The Solicitor-General did appear.

Senator PATRICK: Thank you. Then you had the application for special leave and then the High Court matter. In the High Court matter you were represented by the Solicitor-General and the AGS. Is that correct?

Mr Fricker : Yes.

Senator PATRICK: What costs were the Commonwealth invoiced in respect of the High Court matter?

Mr Fricker : We've totalled up all of the legal fees and costs that we have incurred for the Hocking case and it totals a bit over $1 million—$1,036,707.15 to be precise—the majority of which was incurred by the National Archives. Some costs were incurred by the Attorney-General's Department.

Senator PATRICK: I'm going to come to that, because clearly that's a substantial amount of money involved in that. In respect of the initial decisions that you made, was any legal advice sought by you in the preparation of that decision? If you could go back in time you might seek to avoid what eventually came out as an unfavourable ruling. Did you seek legal advice at that point in time?

Mr Fricker : Yes. I routinely seek legal advice for my decisions that I make. All the decisions that I made throughout the period of time, from the beginning of 2012 right through to our appearance at the High Court, were supported by legal advice.

Senator PATRICK: In terms of the decision you made as the National Archives, so where you were the decision-maker, in that initial decision for refusal did you seek any external legal advice in relation to the matter—noting, perhaps, some complexity associated with that?

Mr Fricker : The answer is yes. As a matter of routine we often give it to the AGS—

Senator PATRICK: Sure, I'm just trying to establish whether that occurred.

Mr Fricker : That's right, absolutely.

Senator PATRICK: So there might have been a cost associated with that as well if you went to someone like the AGS or external counsel.

Mr Fricker : Yes.

Senator PATRICK: I'm not sure if that's been presented. On notice, could you find out how much was involved in that? Or are you saying that's included in all of that total?

Mr Fricker : We've totalled up all of those costs.

Senator PATRICK: Okay, fantastic, thank you. I then withdraw that other question. The matter was remitted back for a decision to be made by you. On what date did you make that decision?

Mr Fricker : After the High Court?

Senator PATRICK: This was after the High Court. It had been remitted back for a new decision by you.

Mr Fricker : On 29 May, as I recall it, the High Court decision was handed down. I then announced on—and let me see if I have the precise date here. The public release itself was on 14 July so it was the Thursday prior to 14 July—if someone has a calendar in front of them they can tell me that.

Senator PATRICK: Sure.

Mr Fricker : That's when I announced that there were no exemptions, that the letters would be released in full and that the release was to occur on 14 July.

Senator PATRICK: I want to talk about that. You had an applicant, Professor Hocking, who had made application since 2011to get access to documents and who took the matter all the way to the High Court. It was remitted back to you to make a decision and my understanding is that Professor Hocking found out about your decision through the media.

Mr Fricker : No. We advised Professor Hocking on the Thursday. It was part of the arrangement that we had, in fact. Because she was in Melbourne, we had arranged with her that when the records were released she would have sufficient time—of course, we didn't anticipate COVID—to actually be in Canberra to have access to those records as soon as they were released. That was the intention of providing that early advice on the Thursday prior to the release. Professor Hocking was advised but, at the same time, there were other applicants for those documents as well and the media were advised on that day. Unfortunately, the media got to Professor Hocking, perhaps prior to her getting our email or text message or however we advised her.

Senator PATRICK: I just want to go—

Mr Fricker : The second thing, though, is that we were quite careful to make sure the applicants for those documents were kept—

Senator PATRICK: Hang on a second: there was only one party to this decision, wasn't there? That was Professor Hocking. You weren't remaking other decisions that you had made in the past, denying access.

Mr Fricker : No, that's not correct.

Senator PATRICK: So the court ordered you to remake multiple decisions? Or is that something you did of your own volition?

Mr Fricker : No, the court made two decisions in its ruling. One was that the documents were to be treated as Commonwealth records for the purposes of the act.

Senator PATRICK: Yes.

Mr Fricker : And then the second one was that I should reconsider Professor Hocking's request. The effect of the first part of that decision, that they are Commonwealth records for the purposes of the act, meant that anybody can apply for access to those records, and people did. And so all of those applicants are entitled to the same communication with the National Archives—

Senator PATRICK: Respectfully, not, in my view. The court had ordered you to make a decision about Professor Hocking. I do a lot of FOIs, and I'm not saying that you're the Information Commissioner, but there's a very strong parallel. When the Information Commissioner makes a decision or, indeed, when the AAT makes a decision, they have the courtesy of providing you with the decision. She could have enjoyed the spoils of her efforts; these were longstanding efforts—nine or 10 years of litigation, all the way to the High Court—and you didn't give her the benefit of that process. You simply went out and announced that yourself.

Mr Fricker : That's not the way the legislation works, I'm sorry, in this case.

Senator PATRICK: Alright, but common courtesy, Mr Fricker: she had fought for almost a decade for these documents. She got all the way to the High Court and got an order from the court that you had to remake her decision, and she found out through the media what the result of that decision was!

Mr Fricker : Yes, but I do repeat that we did contact her first. It all happened on the same day.

Senator PATRICK: But it didn't need to happen. You didn't need to go to the media on the same day. I put it to you that it's completely disrespectful of Professor Hocking.

Mr Fricker : I feel I do need to explain then.

Senator PATRICK: Sure.

Mr Fricker : Professor Hocking's application, as for the other applicants, is an application to make public these records. It isn't an application for personal enjoyment of material; it's an application to make public these records. All applicants should enjoy an equal treatment here. It's not for me to single out any single applicant and deny all other applicants enjoyment of access to the records, or for me to say: 'Yes, I'm making these records public. But actually I'm not making them public, I'm only giving them to one individual for'—

Senator PATRICK: I'm not talking about what the law says.

Mr Fricker : Well, I am.

Senator PATRICK: I'm talking about what is—

Mr Fricker : Senator, I am talking about what the law says.

Senator PATRICK: respectful to people.

Mr Fricker : Yes. And?

Senator PATRICK: She fought for 10 years, almost, to get access to these documents, and then you effectively go to the media—why did you even go to the media? Is that part of your process, that, when a decision is made, you make a media announcement, you go to the media? What was the course of action that led you to go to the media?

Mr Fricker : Well, I repeat: there were several applicants, and there was a high level of public interest in this case.

Senator PATRICK: Was the media an applicant?

Mr Fricker : We went to the applicants—there was one very high-profile and publicly known applicant.

Senator PATRICK: I understand, but I'm talking about the media.

Mr Fricker : I don't think it's appropriate to name all of the other applicants, but certainly Professor Hocking is well known. And I congratulate Professor Hocking. I did at the time, leading up to the decision. It's fantastic. But, the law is quite clear. My duty is quite clear. The decision of the High Court is quite clear. I'm bound to see that through.

Senator PATRICK: 'You're bound to see that through.' The law does not command you to ring the media, or is necessarily prescriptive about how you might make that decision public. It cuts both ways. It's about what is respectful to an applicant. I make the point that the Information Commissioner is very good on this. The AAT are very good on this. And I ask you to reflect on what happened there, and maybe consider a different course of action in future.

Mr Fricker : Well, I'll—

Senator PATRICK: You held a media event, a big splash, to say, 'Here are these letters,' which you personally denied her access to. It's like a thief turning up to conduct a press release—

Mr Fricker : Senator, please! Please, Senator!

Senator PATRICK: As a synonym, it's like a thief turning up to conduct a press release to say the stolen goods have been returned.

Mr Fricker : Senator, it's nothing like a thief—Chair, please!

CHAIR: Yes. Senator Patrick, I think we need to stay away from any suggestions—

Senator PATRICK: I'm not suggesting he's a thief, but I'm just drawing a parallel that people might understand.

CHAIR: I think the analogy is probably a little bit tortured in this circumstance.

Senator Duniam: I think you know that too, Senator Patrick.

CHAIR: It's very good that you've put it on the record that you are not calling Mr Fricker a thief.

Senator PATRICK: Not at all.

CHAIR: That is good.

Mr Fricker : Senator, I did congratulate Professor Hocking on her victory. It was a mighty campaign to take it through the Federal Court, the full bench of the Federal Court, and the High Court. There's no bad blood there. Our duty is to obey the law, and where records should be made public—

Senator PATRICK: The law does not command you to usurp her initial benefit from—

Mr Fricker : The law is quite clear. My duty is to—

Senator PATRICK: Can you point me to the provision in the act that requires you to notify the media?

CHAIR: Senator Patrick, you didn't let the witness finish his answer.

Senator PATRICK: Okay. Sorry.

CHAIR: Let him finish the answer before you go onto your next question.

Mr Fricker : On that day, Senator, there was a frenzy of interest around that decision on the palace letters. A lot happened on that day, on that morning, and things unfolded minute by minute. Actually, I will say on record that I'm disappointed that Professor Hocking found out from a particularly active journalist instead of reading the advice that we provided her. I'm sorry that occurred; however, I will not apologise for that as a matter of due process, because it was the correct process to follow.

Senator PATRICK: Can you provide me on notice how many decisions you've made where you've then gone to the media and done a press release or a media announcement? I'm noting that you seem to be suggesting that's the law. I'm saying that action was quite disrespectful.

Mr Fricker : Well, it's not a case—

Senator PATRICK: Let's move on.

Mr Fricker : Well, I don't know if I should take that. Chair, maybe I have to take that question on notice. But this was a High Court decision. This is nothing like a routine decision. Chair, I will take that on notice and I'll provide the senator with a response to that question.

Senator PATRICK: Thank you very much. Now, you mentioned the costs. Some of the costs will be borne by the Attorney-General's Department; some will be borne by you. You're in a situation, which you noted in your opening statement, and I note that in the past you've indicated that your previous staff numbers—at 30 June 2012 your staff numbers were 470; in 2018, they were down to 384, so almost a hundred down. Where are you at, at the moment?

Mr Fricker : About 355.

Senator PATRICK: So, 355. You've got applications going up.

Mr Fricker : Sorry, Senator, 345.

Senator PATRICK: Well, that's even worse! You've got applications going up. You've got staffing going down—and I accept there may be some productivity measures you can take. In the meantime, and we know you've travelled extensively—I've got the budgets for your travel. We're seeing, in the case of Professor Fernandes, there is a $500,000—almost, that's rounding it up—matter before the Federal Court to protect 1½ sentences in a document. On notice, you've provided me $900,000 worth of other cases. Some of that is interlaced, of course, with Professor Hocking's case. How are you going to manage in terms of the costs that this incurs upon the Archives, and the effect that has on those other applicants?

Mr Fricker : Well, there's very little alternative to making a decision in accordance with the act. If an appeal is made against that decision, there are only two things I can do: show up and defend that decision and incur the cost, or say, 'No, I don't want to incur that cost,' and just release the record. I have to be accountable for the decisions we take. Again, it's a legislative requirement that refusals of access are appellable.

Senator PATRICK: What's your strategy? I accept what you're saying. Sometimes you are bound to turn up to defend a matter. Other times you are the applicant. That's a slightly different thing. Moving forward, how are you going to make sure you're properly resourced—noting this is a hit to your budget? Have you gone to the government and requested special appropriations to cover off on this High Court cost? How are you going to manage this moving forward?

Mr Fricker : Well, I suppose there a number of things. What we're trying to do, moving forward, as I said in my opening statement, is to look at all of those growing pressures that we have, and to look at the investments that we do need to make in our technical infrastructure, our digital skill sets and our public programs to make sure that we are properly engaging and anticipating the needs of the public to access records. The other thing we're doing is looking upstream, which I also referred to in my opening remarks. The better we can do record keeping in the government, the easier it becomes to manage those records at the other end of the value chain, when they become publicly accessible. The better we can administer our stewardship over our digital records that we're creating today in government, means that they all come through with standardised metadata, standardised definitions, interoperability achieved and long-term preservation intact, and it would not be as resource intensive to examine and release those records.

Senator PATRICK: They sound like very long-term objectives. Just to be very specific: did you make a request in your budget submissions for additional funds to assist in dealing with the backlog of applications?

Mr Fricker : Probably the most relevant answer here is that we've had, over the past 12 months, a thorough functional and efficiency review undertaken of the National Archives by Mr David Tune AO. He completed his report, and that report is now being considered. And they do—

Senator PATRICK: So, that's not public?

Mr Fricker : It's not public yet, no. But that was a very thorough—

Senator PATRICK: Okay. I would like an answer to my very specific question: in the budget submissions that you've made for the 2020-21 budget, did you request an increase in funding from the government?

Mr Fricker : No. We've made no budget submission. Those overall examinations of alternatives and investment options are contained within David Tune's review. As at this stage, we have not made a budget submission as a consequence of that review.

Senator PATRICK: Can you please provide that review to the committee on notice?

Mr Fricker : Yes—

Mr Moraitis : We'll take that on notice. That's a matter for the Attorney. It's a functional efficiency review for the purposes of the Attorney-General to be involved.

Senator PATRICK: Sure. If he wants to advance public interest immunity, if he wants to hide behind secrecy for everything government does, then he can.

Mr Moraitis : It's not a question of secrecy.

CHAIR: Senator Patrick.

Mr Moraitis : I'll take it on notice.

Senator PATRICK: I understand your position. I wasn't necessarily directing that at you but perhaps at the Attorney.

CHAIR: Senator Patrick, you've been going for 20 minutes. We need to share the call around. Are you finished?

Senator PATRICK: Thank you.

CHAIR: Senator Keneally.

Senator KENEALLY: To the Archives, you archive cabinet decisions—yes?

Mr Fricker : Yes, that's correct.

Senator KENEALLY: Remind me, how long are cabinet decisions kept confidential?

Mr Fricker : Cabinet records are Commonwealth records for the purpose of the act, so they enter the open period after 20 years. However, exemptions may still apply depending on the sensitivity of the information contained within those records. But, as a general principle, after 20 years they're eligible for public release.

Senator KENEALLY: So, Senator Duniam, does that mean it will take a minimum of 20 years before the Australian public learns the extent of the Morrison government's disdain for the aged care royal commission?

CHAIR: Senator Keneally, that's an outrage.

Senator Duniam: You are the Deputy Leader of the Opposition in the Senate.

Senator KENEALLY: Yes, and I happen to care about the 683 people who have died in aged care on this government's watch.

CHAIR: Senator Keneally, your behaviour descends into the absurd the minute a media camera comes in this room. It's really quite sad.

Senator Duniam: Let's stick with the Archives.

CHAIR: If you persist in refusing to deal with matters that are the subject of the Archives, we will suspend until you learn to behave. You have the call to ask questions of the Archives about matters relevant to the budget for the Archives. Use it that way or you will no longer have the call.

Senator KENEALLY: Senator Duniam, I suppose we really have a couple of choices here to answer some key questions. We can either wait 20 years to find out if any government ministers were involved in Senator Stoker's questions or we could find out through an FOI.

CHAIR: Senator Keneally, this is not about the Archives.

Senator HENDERSON: A point of order, Chair.

Senator KENEALLY: You are running a cover-up racket.

CHAIR: You just can't behave the minute a camera comes in the room. It's just so sad.

Senator KENEALLY: Six hundred and eighty-three people have died, and government senators are asking about tweets!

Senator HENDERSON: Point of order.

CHAIR: Senator Keneally, there's a point of order. Senator Henderson.

Senator HENDERSON: Thank you very much, Chair. In light of Senator Keneally's appalling defiance of the decision of this committee, I move that we suspend.

Senator KENEALLY: Actually, Chair, I'm happy to conclude my questions there.

Senator Duniam: Because the camera has been.

CHAIR: That's a classic Senator Keneally abuse of process.

Senator KENEALLY: No, it's not. I can conclude my questions whenever I like.

CHAIR: You're well and truly concluded.

Senator HENDERSON: Sorry, can I just finish my—

CHAIR: Sorry, Senator Henderson.

Senator HENDERSON: I want to put on the record as part of my point of order that, Senator Keneally, what you have just done is an absolute abuse of process in the Senate estimates.

Senator KENEALLY: How is that a point of order? Point of order, Chair.

Senator HENDERSON: This is a very important part of our parliamentary democracy.

Senator KENEALLY: How is this a point of order?

Senator HENDERSON: I have the call. Please let me finish.

CHAIR: Let her finish.

Senator HENDERSON: What you have just done is an appalling abuse of process and you really do need to consider your conduct.

CHAIR: In circumstances where there has been—

Senator KENEALLY: Six hundred and eighty-three people have died.

CHAIR: utter ignorance of proper process from Senator Keneally, I'm not going to reprehend Senator Henderson too much for that not being a proper point of order. Senator Keneally, we will suspend if you can't behave. Do you think you can manage it? Alright, we suspend.

Proceedings suspended from 11 : 03 to 11 : 04

CHAIR: The committee will now resume. I will follow up with one genuinely National Archives related question, and then we'll go to Senator Chisholm, who I caution not to take the lead from Senator Keneally to utterly abuse the timetable and rules of this committee to which they are a party. Senator Chisholm, if you can't comply by those rules—and I don't suggest you would be as unruly as Senator Keneally—then we will have to take the same path once more and suspend. Let's get back to the National Archives because a day of important information awaits us.

I just have one question about the line of questioning that came from Senator Patrick. Did the minister express any concern with you over the plan to have the event to release the palace papers?

Mr Fricker : No. I would say there were no concerns. The minister's office was advised, of course, and we talked about—

Senator PATRICK: Oh, that's disturbing, Chair!

Mr Fricker : What?

Senator PATRICK: On the minister's behalf. Seriously, the minister endorses—

CHAIR: Senator Patrick, can we hear the answer first, and then you can give your question, not commentary.

Mr Fricker : It's very routine business for the Archives if we're doing a public event. Of course we would like our minister's office to know that we're going to do a public event and provide a briefing, and we had conversations about the logistics of it, but that was it. There were no concerns expressed.

CHAIR: Let's just be crystal clear here. I'll ask you my question again. Did the minister express any concern to you over the plan to have the event releasing the palace papers? It's important you reflect carefully on this.

Mr Fricker : Well, alright. To be precise, there were concerns about if it was going to be COVID safe. Given that travel is not permitted at the moment, we did talk, of course, about if Professor Hocking was going to be stuck in Melbourne and how we were going to run the event, so we talked about streaming, how we were going to make it an online event as well as an in-person event. We talked about associated costs: how we were going to manage the costs of this event to make sure it was responsibly managed. So we had very logistical discussions about the mechanics and the conduct of the event—if they're the sorts of concerns you had in view in that question, Senator. That was the substance of that consultation with the minister's office.

CHAIR: I'd suggest to you that the minister's office indicated to you that there shouldn't be a big public event given its potential unfairness to Hocking and because of the COVID risk.

Mr Fricker : No, there's no question of unfairness. The unfairness, as I just said in my answer a moment ago—

CHAIR: The question isn't about whether or not you thought it was unfair. The question is whether or not the discussion occurred.

Mr Fricker : Yes, and, as I just explained, we were concerned about if Professor Hocking would be able to be there—if that goes to the question of fairness. For example, because not everyone could be in Canberra for the release of those records—

Senator PATRICK: That doesn't go to your question.

Mr Fricker : we ensured that every applicant who had applied for those records was given a full set in digital form of all 1,200 of the documents prior to the public release by a secure Dropbox link to make sure that everyone had that equal opportunity. Similarly, with the streaming, we made sure it was a virtual event as well to make sure that everybody would have an equal opportunity to access and participate in that event and, in particular, that no applicant would be disadvantaged by their limited ability to be in Canberra at the time they were made available.

In the case of Professor Hocking, if I can just expand on this, I had given her an undertaking that she would have first hands on the original documents. That was very important to her, and I understand completely why, and it goes to the discussion we were just having with Senator Patrick. Professor Hocking could not come to Canberra even with the prior day's notice because of COVID travel restrictions. However, she did appoint a research assistant who was able to be in Canberra in person, and Professor Hocking's research assistant was physically present at that event and she had first hands-on access to those records. So, in terms of fairness and equal treatment of applicants, that was carefully managed by me and carefully managed by the institution. Yes, we made that known to the minister's office prior. So I don't think there was any idea that us releasing those records would be unfair or unsafe in a COVID environment.

CHAIR: Thank you.

Senator PATRICK: I've got some supplementaries.

CHAIR: If it's on the same subject, Senator Patrick.

Senator PATRICK: I actually misconstrued Senator Stoker's question. She did ask whether the minister had expressed a view. As opposed to what you thought about the conversation, had the minister expressed a view or a concern about the unfairness and the size of the event?

Mr Fricker : No. It's not a view, but I made sure that the information was provided.

Senator PATRICK: No, I'm asking what the minister said to you.

Mr Fricker : There was never a view that this should not happen or that it's unfair.

Senator PATRICK: Thank you.

Senator CHISHOLM: I have some questions regarding the palace letters as well, Mr Fricker. On what basis and on what legal advice did the Archives make the decision to contest the palace letters case in the first place?

Mr Fricker : It was argued in the Federal Court and upheld by the Federal Court and upheld by the full bench of the Federal Court—the arguments are a matter of public record—and upheld by the majority of the Federal Court. I can't do as good a job as a full bench of the Federal Court, but the arguments turned on the Archives Act defining a Commonwealth record as the property of the Commonwealth or a Commonwealth institution and the legal argument about whether these letters did meet that requirement of the act. Did these letters meet the definition of property of the Commonwealth? As I said, that's all on the public record. All of the legal arguments are there to be seen, and that was upheld by the Federal Court.

After the decision of the Federal Court it becomes a bit odd for the Director-General of the Archives to look at a decision of the Federal Court and then decide to take the opposite view, so I felt bound by that judgement of the Federal Court and the subsequent appeal to the Federal Court as, indeed, I was bound by the ultimate decision of the High Court.

Senator CHISHOLM: Sure, but was there a basis for the decision to contest the palace letters case in the first place?

Mr Fricker : Yes, and all those arguments are laid out on the public record in the now Federal Court proceedings. The arguments we took to the Federal Court were precisely the basis upon which I had made my earlier decision that these did not meet the definition of a Commonwealth record.

Senator CHISHOLM: Did you rely on legal advice?

Mr Fricker : I sought and received legal advice, but, as in all cases, as a decision-maker in my position as Director-General of the Archives, I make these decisions or I delegate officers to make these decisions. Where necessary, we do seek legal advice. I did have legal advice on the palace letters issue.

Senator CHISHOLM: And will you release a copy of that legal advice?

Mr Fricker : No, I don't think so. I think it's still covered by legal privilege.

Senator PATRICK: It doesn't apply in this forum, Mr Fricker.

Mr Moraitis : Sorry, what doesn't apply?

Senator PATRICK: Legal professional privilege is not a public interest immunity accepted by the Senate.

Mr Moraitis : No, but we can take on notice whether we can claim public interest immunity on the basis of legal advice, AGS advice, to the client agency—that is, the NAA.

Senator PATRICK: Thank you. Obviously there could be harm—

Mr Moraitis : Yes.

Senator PATRICK: But legal professional privilege does not apply.

Senator CHISHOLM: So, Mr Fricker, will you release a copy of that legal advice?

Mr Moraitis : I just said we'll take that on notice and seek advice from the Attorney on the issue of public interest immunity on legal advice, which is a longstanding practice.

Senator CHISHOLM: So it wouldn't be a decision for Mr Fricker. It would be a decision for—I'm just trying to get the demarcation as to who would be responsible for making that decision as to whether it's released—

Mr Moraitis : It really is the decision of the Attorney, as the first law officer, on advice from AGS. It was AGS advice, if I recall correctly, therefore I'd ask that we take that on notice.

Senator CHISHOLM: The Director-General of the Archives provided a closed submission to the Federal Court arguing against disclosure of the palace letters. As the head of what he terms a 'pro-disclosure organisation', has the director-general now released that submission publicly?

Mr Fricker : I'm not sure. Have I? I don't know. Can I take that on notice?

Senator CHISHOLM: I suppose my follow-up question would be: will the director-general release that submission publicly?

Mr Fricker : Again, let me please take that on notice.

Senator CHISHOLM: Is there any reason why you wouldn't lease that publicly?

Mr Fricker : Only because I can't recall what was in there that may or may not still be sensitive now the legal proceedings have finished. If part of it was because there was a substantial amount of content from the letters which hadn't been released at the time, now that content has been released I couldn't see a problem releasing the information. I'm sorry: I simply cannot remember what was in that document. I'll need to take that on notice.

Mr Moraitis : Also, it could be subject to any court orders and is not at the discretion of Mr Fricker to not comply with, so that would be one other factor we need to confirm.

Senator PATRICK: Can I ask that it be provided to the committee, because the requirements in respect of court orders vary?

Mr Moraitis : I'm just making the point that—

Senator PATRICK: Sure. I'm just asking.

Mr Moraitis : it may be a court order which precludes us from unilaterally deciding to release.

Senator PATRICK: Senator Chisholm has asked if he's going to release it publicly.

Mr Moraitis : Of course, yes. We'll take that on notice.

Senator PATRICK: I'm making a request: can you provide it to the committee.

Mr Moraitis : Yes, subject to the points we've made.

Senator PATRICK: Thank you.

Senator CHISHOLM: Pursuant to the decision of the High Court in Hocking v D-G National Archives of Australia, has the Archives released the correspondence of other governors-general with the monarch?

Mr Fricker : That is underway at the moment. The two decisions of the High Court were quite specific to that bundle of documents penned by Sir John Kerr and Buckingham Palace. However, the substance of the judgement also has wider application as to how we now view the correspondence of other governors-general with the monarch. It's very much a live issue within the National Archives. My feeling, as I sit here in front of you today, is it does therefore mean that other correspondence with other governors-general would fall under that same now definition of Commonwealth record for the purposes of the act. And so, we are actively now examining those other records in our care and the manner in which they were prepared, kept and deposited with the Archives to see if they should be released under the Archives Act.

Senator CHISHOLM: When are you expecting that to happen?

Mr Fricker : I shouldn't speculate, really, on things like this because it then becomes a kind of pre-empting a decision that I haven't made yet. Under the legislation, there's a consideration period. We have 90 business days beyond which access could become a deemed refusal, so I am mindful of that consideration period in the act. But I can simply answer by saying we are a pro-disclosure organisation. I think we demonstrated that with the complete unredacted release of the Kerr letters. The same treatment is now being applied to the letters of the other governors-general, if I could answer in that regard.

Senator CHISHOLM: I won't dwell on that claim. I think that's a pretty bold claim on your part considering—

Mr Fricker : About being a pro-disclosure organisation? Sorry, Senator, it's not a bold claim on our regard. I stand by that. It's very important.

Senator CHISHOLM: Alright.

Mr Fricker : It's the spirit of the legislation, it's the spirit of the work that the Archives does and those comments reflect poorly on the staff of the Archives, if you don't mind me saying so. People work very hard to make records publicly accessible, but we do it lawfully. We're not going to go off on a frolic and just hand out stuff unless we've properly assessed it, if I can simply make that caveat.

Senator CHISHOLM: The National Archives must follow the terms of the instrument of deposit set by the depositor. Is that correct?

Mr Fricker : Yes, in essence, it is. That's the way it's written in the Archives Act, if they're non-Commonwealth records.

Senator CHISHOLM: I understand the National Archives are currently withholding a letter between the Queen's private secretary Sir Philip Moore and Sir John Kerr in 1978 from Kerr's personal papers. Is that correct?

Mr Fricker : I believe so, yes.

Senator CHISHOLM: I understand the letter in question is from correspondence with Moore in Kerr's personal papers. The reference is M4526 6 Buckingham Palace. All of those papers have been released with the exception of the one letter. Is that correct?

Mr Fricker : Yes. I'll confirm this if I'm wrong, but I believe that letter was after Sir John had left office, so he was, at that point, a private citizen. I believe the letter is an exchange of personal condolences between Sir John and the Queen following, I think, the death of Louis Mountbatten. I'll come back and confirm this, but it is very much a personal exchange and it falls outside the definition of Commonwealth record. The release of those sorts of documents, when one of the parties is still alive, I think, represents a breach of personal privacy, given that Sir John was no longer in office and it wasn't an exchange of official business at all. I don't mind coming back to you and confirming that and I don't mind talking about the nature of the correspondence to illustrate that we still need to respect people's privacy where it is not a document of official government business.

Senator CHISHOLM: I'll just go to my question, which was all of those papers have been released with the exception of one letter—is that right?

Mr Fricker : I believe that is the case and, given that we are a pro-disclosure organisation, you would not be surprised to know that is the case. However, let me confirm that, though, just to make sure.

Senator CHISHOLM: Is it the case that the instrument of deposit in respect of those documents states that the documents are to be released after 30 years.

Mr Fricker : That is correct.

Senator CHISHOLM: Under the terms of the instrument of deposit, is it the case that all of those documents should be released after 30 years?

Mr Fricker : Here we still have to observe that there are other laws at play. Just because something is permitted by the Archives Act, I'm still obliged to consider other matters such as personal privacy in this case and public interest. There are other factors in order for us, on the one hand, to faithfully observe the request of the depositor but also act in a responsible and a civil manner. If something is going to be a severe breach of personal privacy or if something is going to be highly offensive, for example, then I should really consider the merits of that release.

Senator CHISHOLM: So are Archives currently assessing whether that letter is released or, as far as you're concerned, is the matter closed?

Mr Fricker : Let me confirm, because I hope I'm talking about the same document. I'm trying to be as helpful and expansive as I can for the committee. Can I please just confirm we are talking about the same document, and I'll be able to provide a much more detailed answer—if I could take that on notice is what I'm saying.

CHAIR: You're entitled to take it on notice if you wish.

Mr Fricker : Thank you.

Senator CHISHOLM: I've got more questions on other subjects. Did you want me to keep going?

CHAIR: The National Archives was scheduled for 45 minutes. We've been going for more than 45 minutes now. Given the committee's been generous with me this morning, I'm happy to try and accommodate, if possible. Senator Patrick's also asked for a further 10 minutes. How many more minutes do you think you need?

Senator CHISHOLM: I'm thinking probably 10.

CHAIR: So you need another 10. Senator Carr, do you have other questions?

Senator KIM CARR: No, I don't.

CHAIR: Okay. Then press on, Senator Chisholm, and then we'll finish up with Senator Patrick.

Senator CHISHOLM: Thanks. I just wanted to ask about national cabinet and there were some discussions at yesterday's estimates regarding the new Cabinet Handbook. When was the National Archives consulted on the drafting of this new Cabinet Handbook, particularly section 8, regarding the national cabinet?

Mr Fricker : We have been in consultation with Prime Minister and Cabinet on the national cabinet. I don't have it today in front of me, Senator, so I'll take that on notice, but we have been in consultation with Prime Minister and Cabinet on the issue of the national cabinet and the records of administration for the national cabinet.

Senator CHISHOLM: Did PM&C adopt your advice relating to the handling of national cabinet?

Mr Fricker : I'm sorry, I'll have to take that on notice.

Senator CHISHOLM: Do you consider that the national cabinet, as described in the new Cabinet Handbook, is covered by the Archives Act?

Mr Fricker : I do, yes. I think the records of the national cabinet will be Commonwealth records for the purposes of the act.

Senator CHISHOLM: How has the National Archives advised on the handling of national cabinet meetings and papers that have occurred already in 2020?

Mr Fricker : The national cabinet records, as they currently stand, are protected from unauthorised disposable under the Archives Act. Again here, principally, the Archives Act protects any Commonwealth record from destruction unless it has a particular disposal records authority from the archives, or it's required by some other law. As it stands, the national cabinet records are protected from unauthorised disposal.

We're also looking at it within the archives. Our present view is that the national cabinet is an organ of the cabinet so, generally speaking, the rules of cabinet records would apply to national cabinet for the purposes of the Archives Act. However, the records authority that we have issued for cabinet records was issued back in 1988 so we are presently reviewing that records authority to bring that up to date and to reflect the more contemporary operations of government, including the national cabinet. In a way, the effect of the act means that a records authority gives you permission to destroy a record. Until the records authority is produced it can't be destroyed. So it's better to do these things—I won't say in a slow time—carefully rather than to rush them, because until the records authority is produced the records won't be destroyed. That's my principal concern as the director-general of the archives—that the records are preserved.

Senator CHISHOLM: Will the Archives Act require amendments to handle the national cabinet?

Mr Fricker : I don't think so. Section 24 of the act enables me to issue records authorities. Those are instructions as to what classes of records should be kept for a particular period of time, after which they can be destroyed, and what records must be retained permanently and transferred into the care of the archives. So I do not anticipate that the establishment of the national cabinet would require an amendment to the Archives Act.

Senator CHISHOLM: Have you consulted your state and territory archives counterparts to ensure consistent handling of national cabinet materials?

Mr Fricker : Yes, we have had consultation. We have a group, the CAARA, the Council of Australian Archives and Records Authorities, which meets a few times a year. This has been a topic of discussion amongst us, just to line up our thinking and policies around the records of the national cabinet.

Senator CHISHOLM: Were your state and territory counterparts consulted on the new content of the Cabinet Handbook?

Mr Fricker : That I don't know.

Senator CHISHOLM: I'll just move on to another topic: requests for material and records relating to national security matters. Are all Commonwealth security agencies consistently meeting their obligations under archives legislation and related arrangements?

Mr Fricker : I believe so; yes would be my answer. To the best of my knowledge, that is the case.

Senator CHISHOLM: Do they always meet their response deadlines?

Mr Fricker : The time taken to examine and release a record—and I have to be very careful to explain this. Under the act there is a consideration period. Once an application for access is received, with some exceptions, there are 90 business days to consider that application. If a decision has not been made after 90 business days it is a deemed refusal. So no law has been broken by taking longer; however, it becomes a deemed refusal, which means it can be appealed to the AAT.

As I said in my opening statement, currently we have about 19,000 applications on hand which have gone beyond their consideration period—19,000. So we have a significant—and I do not retreat from this figure—pipeline, a queue, of applications that are still waiting on our declassification processes so that they can be released. That's a matter of demand outstripping our capacity to respond.

Senator CHISHOLM: Okay. Are there agencies which are consistently underperforming in terms of meeting that deadline?

Mr Fricker : That is about the nature of the records that we have. The highest volume of applications, if you like, that we have would go to foreign policy. The references that we've made to the Department of Foreign Affairs and Trade represent the largest volume of records. That's a demand-driven statistic; it doesn't reflect an uneven attitude across government towards compliance with the Archives Act. That's simply a product of the volume of applications that we receive.

Senator CHISHOLM: My question went specifically to which agencies are not meeting the deadline. I understand you talked about volume, but are there agencies that consistently don't meet the deadline of 90 days?

Mr Fricker : The agency that needs to meet the deadline is us, the National Archives. I'm the decision-maker, and the requirement under the act is to make sure that, prior to me making a decision, I have undertaken consultation with that responsible part of government. The decision-maker is the National Archives, so we're the agency that needs to meet that deadline. However, our biggest backlogs of referrals for advice, if you like, are with the department of foreign affairs. But, again, I want to be careful how I characterise that. That is not a reflection of a cultural problem towards the Archives Act or accountability. It is simply a product of the sheer volume of material that is being requested for public release, and, under the Archives Act, everybody is entitled to access. There's no provision in the act to say, 'Your application is not worthy and this one is.' Every application is just as meritorious as every other. We have a very small percentage of applicants who account for 85 per cent of all of those applications, so one applicant can apply for several thousand files in one application, or at one time.

Senator CHISHOLM: Have the intelligence agencies or DFAT ever offered options about how to improve the process of responding to requests?

Mr Fricker : Yes. I've met, in the case of Foreign Affairs, with Secretary Adamson to have a discussion about this. Our staff, at the working level, continue to liaise with one another and workshop ways to streamline our processes to improve the speed and efficiency with which we undertake this work. That's very much an ongoing activity.

Senator CHISHOLM: Can you update the committee on progress with matters before the AAT?

Mr Fricker : Yes. I will quickly go through the matters we have before the AAT. In October 2018, Mr Alan Fewster lodged appeals with the AAT on a deemed refusal of access to four records. It was a deemed refusal, because we'd gone past the 90 business days. In August and November 2017, Dr Clinton Fernandes lodged four applications with the AAT for the review of decisions we'd made on some ASIS records that he was seeking access to. On 22 November 2019, Mr James Salim lodged an application for review on the National Archives's decision to withhold some material in an ASIO record. On 2 September 2020, Mr Anthony Craig lodged an application in the AAT for review of our decision to withhold some material in a human rights report on an incident at Biak Island. In March 2014, October 2014 and April 2017, Ms Kim McGrath lodged appeals on deemed refusal of access to 26 records. These relate to East Timor seabed boundaries. In the McGrath matter, I should say the AAT handed down its decision on 9 June. The AAT affirmed the Archives's decision. I think the other matters are still in train.

Senator CHISHOLM: Moving on to another issue, I understand that there is an ongoing issue about access to papers and material relating to Australian involvement in the 1973 overthrow of the elected government of Chile, including the death of then president Allende. Am I correct?

Mr Fricker : That's correct. That's within those applications from Dr Fernandes, a decision to exempt information in some ASIS records relating to operations in Chile, 1971 to 1974.

Senator CHISHOLM: What is the reason for stopping or restricting access to the relevant material?

Mr Fricker : So, the exemptions are there in section 33 of the Archives Act. They make it clear that if a record contains information, the release of which would be adverse to Australia's security, international relations, et cetera, they would come under the national security exemption within the act.

Senator CHISHOLM: Has the Archives consulted with the following, and what was their response to providing access to relevant papers—the Australian intelligence agencies?

Mr Fricker : Yes. Absolutely, we do. In order for us to make these exemption decisions—in fact, it's a requirement of the legislation—we do consult with the responsible policy agencies, or the security intelligence agencies, because I'm bound to make a decision as to whether this record contains information that meets one of those exemptions in the act. I have staff within the National Archives with security clearances and with a level of expertise, but to make sure that we are making the right decision we do consult with those responsible agencies.

Senator CHISHOLM: What about US intelligence agencies and other US government organisations? Have they been consulted regarding this specific matter?

Mr Fricker : I don't know. We consult with the Australian agency. To make a decision—and I think they would have to in some circumstances—it's quite within their role to make a judgement as to whether overseas entities should be consulted.

Senator CHISHOLM: And what about various governments of Latin America?

Mr Fricker : Again, Senator, my consultation is with the Australian agency.

Senator CHISHOLM: And when will this access issue be resolved, do you imagine?

Mr Fricker : It's before the AAT, so I suppose that's a question for the tribunal. In the Fernandes one, it wasn't a deemed refusal; it was a decision to exempt, which is being appealed.

Senator CHISHOLM: Just one final question from me. A notice of contract was posted on the AusTender website at 10:21 today. It's for a $60,000 contract for the provision of legal services for an Administrative Appeals Tribunal matter. The supplier is the Australian Government Solicitor. What is the AAT matter? What does it relate to?

Mr Fricker : I don't know. I'm sorry, Senator, I don't know what that refers to. I take it you're reading something that we've posted from the National Archives?

Senator CHISHOLM: Yes, I've got it here in front of me. I'm happy to table it.

Mr Fricker : If you wouldn't mind, I simply haven't got it in front of me. Senator. It has just been clarified. This is a contract we have to source legal services from the Australian Government Solicitor. And, yes, it will be in relation to those AAT matters that I just went through with you.

Senator PATRICK: Just a couple of supplementaries from the previous discussions. On the national cabinet, a COVID committee has heard there's a Victorian note-taker who takes notes on behalf of the states. Would those notes be subject to the National Archives Act?

Mr Fricker : That's a very good question, Senator. This is part of the consultations we've been having with our state and territory counterparts as part of that national cabinet. I'm satisfied that there's a Commonwealth note-taker in the room, and that the proceedings and the records of the cabinet are being preserved. I don't know what the status would be of the Victorian note-taker. Again, it comes down to this legal definition of property of the Commonwealth. Is it property of the Victorian government, or, because they're in the room as part of the cabinet proceedings, is that now going to be—

Senator PATRICK: I'm happy to have drawn that to your attention for your consideration. Maybe come back on notice, after you've given it some thought.

Mr Fricker : Yes.

Senator PATRICK: Mind you, I'm not sure of the legality of the national cabinet, but that's another question. Going back to the palace papers, I'm just curious as to the sequence of media events. It's been put to me that you offered something to The Australian newspaper exclusively. Is that the case?

Mr Fricker : No. However, as I said, there were several applicants. I wasn't proposing to name all of the applicants who had applications in for access to those papers. We provided a full set of records to all of the applicants. At about 11 am on 14 July, we made them freely available on our website. I suppose you can draw your conclusion about whether the journalist was an applicant or whether the journalist got the information from an applicant—

Senator PATRICK: You're protected by parliamentary privilege here. If a journalist was an applicant, you could just say that.

Mr Fricker : Your question was: did we do any exclusive deals for the newspaper? And the answer was no. We dealt with the applicants.

Senator PATRICK: Was there any correspondence between you and any journalist that took place before the release of the documents? Can I ask that you provide to the committee, on notice, any emails that you had between any journalist organisation in relation to those papers?

Mr Fricker : I suppose so, yes. Actually, I'm sure he won't be upset with me—one of the applicants was Troy Bramston of The Australian. That wouldn't surprise anyone. He's published books, he continues to publish books and he's been making a lot of commentary on this. He was physically present at the event on the 14th, as well. I think a lot of these observations are about the work that Mr Bramston was doing. He was an applicant for the palace letters, and he was getting similar attention to the other applicants. I don't know if that helps your line of inquiry. It wasn't a sweet deal with a particular media organisation, but it was an individual applicant for those letters.

Senator PATRICK: My question stands. Can you please, on notice, provide your email communication with any media organisation prior to the release of those documents?

Mr Fricker : Yes. I think the answer is yes. I cannot see any reason not to pursue it.

Senator PATRICK: Thank you very much. I have a couple of other questions. The National Archives has indicated it's preparing to lose large sections of $117,000 of magnetic tape archives. You're familiar with that commentary?

Mr Fricker : Yes.

Senator PATRICK: The report that's gone to the Attorney—does that cover off on that matter? Clearly, this would be a loss.

Mr Fricker : Again, I note that the report isn't public yet. But, certainly, David Tune, in his report, did consider that amongst the priorities facing the Archives. I can absolutely say it was a consideration in his report.

Senator PATRICK: So there's a pathway forward, not approved yet, that could ensure that these records aren't lost?

Mr Fricker : Well, there's a technical solution: it requires digitisation. The degradation of the records is happening over time. It's a process of hydrolysis and shedding or whatever, and the loss of the playback equipment. We are working very hard to rescue them. Honestly, on our current trajectory, I can't see how we can save it all.

Senator PATRICK: In that case, how do you intend to prioritise the information? For example, if there's some Indigenous language material in there that will be lost forever, as opposed to perhaps some other material—how are you intending to prioritise that?

Mr Fricker : We are looking at doing a significance appraisal of what we have. There's a large volume of, say, broadcast material. It has been broadcast; it's already been in the public domain; people have seen it. In some cases—one episode of Play School is a good exemplar of Play School—you don't need to keep every episode. However, the example you raised—

CHAIR: My children would disagree!

Mr Fricker : Sorry: I retract that answer!

CHAIR: Sorry for interjecting! Senator Patrick.

Mr Fricker : Yes, where we are perhaps dealing with the last record of an Indigenous language, clearly, we don't want to lose that. There's some scientific information that's been collected and is now held on magnetic tape. And there are things which have never been published—ASIO surveillance tapes. These are the sorts of things which really should be kept because they haven't yet been properly studied or examined. So we're prioritising that.

Of course, we are outsourcing this work so some of it will also relate to the particular medium. We have a very good supplier who is very good at digitising certain media, whether VHS tapes or two-inch tapes or whatever. We would say, 'Okay, let's fast track that because we can get that done quickly at a good price.' So there's a mix of things going into our prioritisation, but we are prioritising.

Senator PATRICK: Can you provide on notice an indication of the material—at a high level, as to what's on there—and how you're intending to prioritise that particular material rather than doing it here?

Mr Fricker : Yes.

Senator PATRICK: In previous estimates I asked you whether former prime ministers Rudd, Gillard, Abbott or Turnbull had provided their official diaries to the National Archives. You said at that point no. Can you please provide me an update on that?

Mr Fricker : I don't think we have any of those diaries yet deposited with the archives, but I don't know whether they're with the Department of the Prime Minister and Cabinet or not. They've not been transferred into the custody of the archives, but I'll confirm that. To the best of my knowledge today, that's the case.

Senator PATRICK: Okay. My concern here is that where time might have been a friend in some of your previous answers, in this case time may be an enemy. Just to be clear: those diaries are in the hands of the department, are they? They're not personally with Mr Rudd, or Mr Turnbull or Mr Abbott?

Mr Fricker : I don't know.

Senator PATRICK: Okay. Can I suggest this: what's your process for following up on these sorts of important records? Surely it can't just be a case of you just waiting until they submit them? You must at least have a process by which you liaise with someone to ensure there's a pathway for you to get access to them or to retain them?

Mr Fricker : Yes. We don't have a flying squad which goes out and grabs this stuff—

Senator PATRICK: Sure.

Mr Fricker : We have programs of information awareness which we run from time to time here in the parliament to make sure that parliamentary staff in particular and—

Senator PATRICK: I just want the specifics of these four diaries. The fact that you haven't identified where they are troubles me a little bit. If I knew that PM&C had them I would feel a lot more comfortable. Have you written to any of the prime ministers to ask for their provision? Have you written to the Department of the Prime Minister and Cabinet seeking at least to understand where these things are?

Mr Fricker : No, I haven't singled out those particular documents. The answer to your question is no, I haven't done that particular action.

Senator PATRICK: Could you consider writing to them? It just disturbs me that we don't know where they are.

Mr Fricker : Alright, I shall do that.

Senator PATRICK: Thank you. I presume that the costs you gave me before don't include any cost settlement on the other side?

Mr Fricker : No, we haven't received advice about what the costs will be.

Senator PATRICK: Sure. So they were exclusively your costs, but I think you're subject to cost orders and so the number is going to go up and I guess we'll find that out at the end.

Mr Fricker : Yes.

Senator PATRICK: Thank you.

CHAIR: Did you have something else to say, Mr Fricker?

Mr Fricker : Yes, Chair, it goes back to your question earlier about the minister having some concerns about our event. I had a quick—

CHAIR: And expressing them to you.

Mr Fricker : Yes. I had a quick side conversation with Mr Moraitis just now; I will go back to that email and make sure that I provide you with a fuller answer to that after I've had another look at that email exchange, just to make sure that I've accurately answered that question. I think it's worthy for me to go back and look at the original exchange of emails to make sure that I've addressed the matters that you raised properly.

Senator PATRICK: Why don't you just table the emails?

Mr Fricker : Let me go back and have a look at that.

CHAIR: Take that on notice.

Mr Fricker : Yes, I just wanted to put on the record that I'll go back and have a second look.

CHAIR: I think you'll find, upon review, that your evidence hasn't been accurate. So, we'll let you do that.

Mr Fricker : Well, then I'm glad I raised it before the close of proceedings. Thank you, Chair.

CHAIR: Thank you to officers of the National Archives. We thank you for your time, and we'll close off that session and let you get on with your day.