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Thursday, 10 May 2018
Page: 2922


Senator PATRICK (South Australia) (15:10): by leave—I move:

That the Senate take note of the statement.

At the outset I want to recap the sequence of events that managed to get us to this point. A year ago almost to the day, on 9 May 2017, then Senator Xenophon made an FOI application to the Department of Defence relating to Australian industry involvement in the $50 billion Future Submarine program, a nationally significant, highly important program. Senator Xenophon noted that an ANAO report into the Future Submarine CEP process had stated:

As part of its response to the competitive evaluation, the participants were required to provide an Australian Industry Plan identifying opportunities for Australian industry, and how Australian industry involvement could be maximised during the lifecycle of the program.

Senator Xenophon was interested in just what Australian industry involvement would be in this tremendously important national project and accordingly made an FOI application to the defence department for the final submarine Australian industry plan submitted to Defence by the submarine builder DCNS, now Naval Group. He simply wanted to know what they had promised to do in respect of Australian industry.

Defence was really quick to respond. Just two weeks later on 23 May 2017, a decision was made denying access to the document because, the department said, it did not exist. At that time I was an adviser to Senator Xenophon and on his behalf sought an internal review of that decision. After all, the Auditor-General had referenced it, so I was pretty sure that it did exist. On 26 June, a senior officer in the defence department made an internal review decision. Having found the document did actually exist, the department refused access to it in its entirety, claiming the documents to be exempt under sections 47C and 47G of the FOI Act. They claimed that the document contained information that was deliberative in nature and also contained confidential business information and commercial or financial information that, had it been released, would have disadvantaged or prejudiced business operation and may even have caused Defence difficulty in seeking such information in the future.

At the time, Defence made no claim—no claim at all—under section 33 of the FOI Act that the document was exempt from disclosure because it contained information that, if released, would damage the defence security or international relationships with the Commonwealth. No such claim was made. Former Senator Xenophon referred Defence's internal review decision to the Information Commissioner for independent review. That review is ongoing and is now being handled by me and my office on behalf of Mr Xenophon.

To move to this year: in the Senate on 12 February, I moved a motion for an order for the production of documents—specifically for the Minister representing the Minister for Defence Industry to present to the Senate the Australian industry capability plan submitted by DCNS to the defence department in its response to the Future Submarine competitive evaluation process. You might recall that at that time the defence industry minister had gone from 90 per cent to 60 per cent Australian industry content, and now we have just received a Future Frigate document that went to 50 per cent Australian industry content. In speaking to that motion, I made the following comments, which are worth repeating today:

This document is an important document which outlines the promise of DCNS, now Naval Group, to Australian industry as to what involvement it will have in the Future Submarine project. It is an important document that former Senator Xenophon requested under FOI in April 2017. What this means is that the Information Commissioner is about to make a decision about it. So I respectfully suggest to the minister that she needs to respond to the OPD in a very considered manner. I don't want to see the minister ordered to make another explanation as to why she got her OPD response wrong, because I can assure you I will not hesitate to protect the integrity of the Senate oversight processes in circumstances where the minister makes another bogus claim.

Senators will recall the Minister for Defence had previously claimed documents relating to the Future Frigate Program could not be released to the Senate, not only on grounds of national security and defence but also for international relations reasons, only to have those documents released through an FOI review undertaken by the Information Commissioner. So we can't have them, but Mr Xenophon, in those circumstances, could.

On 12 February, Senator McGrath affirmed to the Senate that the government would not release the DCNS Australian industry capability plan; indeed, it would continue to withhold the document in its entirety. Senator McGrath claimed the entire document contained intellectual property regarding the design and build of submarines and the methods for technology transfer. The subject matter of the document itself—Australian industry participation—made Senator McGrath's claims about intellectual property and technology transfer as the basis for withholding the entire document rather implausible. Most significantly, Senator McGrath added—almost as an afterthought but clearly as a justification for a complete refusal to disclose—that 'disclosure could be expected to damage Australia's international relations with France.'

This was the first time, on 12 February this year, that the government claimed that the release of the document would damage Australia's international relations. That claim had not been made by Defence in Defence's original internal review decision seven months earlier. It's not been made by Defence in the review process taking place with the Information Commissioner. One might have reasonably thought that, if the claim had merit, Defence would have already argued it, but they'd not raised it at all.

On 12 February 2018, the Senate agreed to the OPD motion. On 15 February this year, the duty minister tabled in the Senate a letter claiming public interest immunity and stating that the release of the documents would affect the commercial interests of Naval Group and adversely affect Australia's international relations. That letter further advised the Senate that the government was awaiting the outcome of the Information Commissioner's review into FOI exemption claimed over the documents. On 27 March this year, I moved a further motion that noted a previous Senate resolution and declared:

… declining to provide documents or answer questions on the basis that an FOI request has been made for the same information is an unacceptable response, is not supported by the FOI Act and shows a profound lack of respect for the Senate and its committees.

They're not my words; they come from Odgers.

The motion further observed:

(f) … claim of commercial confidentiality must be carefully advanced and claimed narrowly so as to recognise the public interest that lies in openness and transparency on this very important project.

The motion further made the point:

(g) the claim that the release of the documents will affect international relations is not properly made out and is flawed (and has not even been advanced by the Department of Defence as a concern in the Information Commissioner Review) because the document which is the subject of the order is a document of a French-law Public Limited Company, not a document of the French state;

The motion further called on the Minister for Defence to make a statement to the Senate—which she's done today—addressing why she:

(a) has advanced a claim showing a profound lack of respect for the Senate;

(b) offered a broad confidentiality claim that does not correctly balance the public interest in knowing what DCNS promised, in respect of Australian industry involvement in our largest ever Defence project; and

(c) has advanced a claim that releasing the document to the Senate would affect Australia's international relations knowing that this claim is inconsistent with the position of her own Department.

The motion was agreed to on 27 March.

Eight days after that motion there was a further interesting development in this story. On 4 April 2018, Defence made a new submission to the Information Commissioner's review and belatedly introduced a claim for the documents to be wholly exempt under section 33 of the FOI Act—namely, that the release of the documents would damage Australia's international relations. As I've said, in the course of nearly a year, Defence had not previously made that claim. That fact begs the question as to what, if anything, has happened to change the department's position.

Defence now claims that the release of the documents could reasonably be expected to cause damage to Australia's relationship with foreign governments; that it would damage international confidence in Australia and Australia's relationship with other countries; that it would adversely affect the ability of the Australian government to maintain good working relationships with other governments and international organisations; that it would cause a loss of trust and confidence in the Australian government; and that foreign officials may be less willing to engage with Australian businesses in future. None of those claims had been made previously; they were all freshly minted. Yet the department failed to detail any evidence to support its claim in relation to the release of the documents, which is, it should be recalled, information provided to the Commonwealth by a commercial entity engaged in a commercial tender process.

Defence's section 33 claim had been made late in the day. It is heavy on assertion and very light on evidence or argument. It looks much like something that's been cobbled together to bring the department's position in line with the assertion made by the minister in this place. Given the context of deliberations in the Senate on this matter since 12 February, it's not unreasonable to conclude that Defence's claim of a section 33 exemption may not be based on a careful evaluation of the relevant facts; rather, it may well be made in response to a direction or other interference from a minister's office or else was made by the department simply in order to bring the department's position in line with the claim made by the government in the Senate.

However, efforts to avoid political embarrassment for ministers are not appropriate drivers for departmental FOI decision-making. Defence's decision-making in this matter may well have been politically compromised. Accordingly, I have made a formal complaint to the Information Commissioner under section 70 of the FOI Act in relation to the defence department's decision-making in this matter. I have specifically requested the Information Commissioner to make inquiries and investigate Defence's decision-making in respect of its new section 33 exemption claim. It would be appropriate—indeed, I believe it is essential—for the information in pursuing such an inquiry to require under section 79 of the FOI Act the production of relevant documents and records, including communications between the department and ministers' offices and between the ministers' offices themselves in order to determine when, how and on what basis the purported new international relations exemption claims were made. Such an inquiry is essential to determine whether the integrity of Defence's decision-making has been compromised and whether Defence's claims are based on careful and objective reasoning and not on the desire to accommodate the political interests of the minister.

But that's not the end of the story. Curiously, on 30 April, I was advised by the Office of the Australian Information Commissioner that Defence had advised that 'they intend to release at least part of the document and will do so tomorrow'—11 May. So perhaps some of those claims of exemption were not very robust at all and could not have been applied to the document in its entirety. But how convenient the timing is! Defence is waiting until tomorrow, after the Senate has risen this week, before it provides me with the new documents.

This is not the first occasion that the defence minister has, on dubious grounds, invoked 'damage to national security or international relations' to justify withholding information from the Senate. However, national security is not a political light bulb that can be switched on and off at the whim of ministers to resist releasing what they may consider to be embarrassing information.

Today the minister stated that there were very serious reasons for not providing this information to the Senate. Yet I have a document from the Information Commissioner today saying that Defence is quite prepared to release some of that information to Mr Xenophon. They won't release it to the Senate—the Senate won't get anything, it appears—but Mr Xenophon can get his information. In response, I can only return to the remarks I made on 12 February, when I respectfully suggested the minister needed to respond to the OPD in a very considered manner and that it would be regrettable if the minister had to make another explanation as to why she got her OPD response wrong. Regrettably, she did not do so. Instead the government have adopted an obstructive and negative approach to the release of information. They have done so in complete disregard of public interest.

The extent of Australian industry participation in the new submarine project, a project of tremendous national security and economic importance, is clearly something that should be subject to well-informed debate not only in the Senate but also in the public domain more broadly. A year has passed since former Senator Xenophon made his original application. Yet here we are today, with the government still fighting tooth and nail to keep these things locked away. They must do better than this, and the Senate must hold them to account.