Peter A Clarke

There is quite a buzz about the ABC’s scoop in obtaining Cabinet documents stretching across a number of recent Australian Governments.  It has resulted in a cornucopia of stories which have found their way into the media in the last few days.  It is a hell of a scoop.  The documents were not “leaked” by government or opposition insiders or a disgruntled public servants.  They were found in an old second hand filing cabinet bought by a punter at an op shop who passed them onto the ABC.  This is hardly a new story.  I posted on 13 February 2014 Department of Justice, Northern Ireland receives a 185,000 pound monetary penalty notice from the Information Commissioner for disclosing sensitive information that in the UK sensitive documents belonging to the Department of Justice were found in an old filing cabinet which was sold to the member of the public.  In that case the Information Commissioner imposed a swingeing fine on the Department of Justice.  Here the consequences are less severe for data breaches. Unfortunately.

Ultimately these breaches are inevitable if privacy and data security procedures are not baked into an agency’s day to day operations.  Data is the new “oil”.  It drives business and government.  But there has been no practical interest in enforcing proper data security procedures.

The ABC stories that have come out have been extraordinary, providing:

The Australian Federal Police (AFP) lost nearly 400 national security files in five years, according to a secret government stocktake contained in The Cabinet Files.

The Department of Prime Minister and Cabinet regularly audits all government departments and agencies that have access to the classified documents to ensure they are securely stored.

The missing documents are not the same files the ABC has obtained.

The classified documents lost by the AFP are from the powerful National Security Committee (NSC) of the cabinet, which controls the country’s security, intelligence and defence agenda.

The secretive committee also deploys Australia’s military and approves kill, capture or destroy missions.

Most of its documents are marked “top secret” and “AUSTEO”, which means they are to be seen by Australian eyes only.

An email exchange between the cabinet secretariat and the AFP reveals the documents were lost between 2008 and 2013, while Labor was in government.

The exchange does not reveal any investigation by either the secretariat or the AFP into how the documents were lost, who lost them, or where they might be now.

It also does not reveal the nature, nor the content of the missing NSC documents.

Troop deployments in Afghanistan and Iraq, counter-terrorism operations, foreign relations and Australia’s border protection were among the top-secret and sensitive issues decided in the five-year period.

The cabinet secretariat’s general practice was to give up searching and write off lost documents if they could not be found after consecutive audits, according to another document in The Cabinet Files.

The ABC has contacted the AFP for comment.

John Howard’s National Security Committee (NSC) gave serious consideration to removing an individual’s unfettered right to remain silent when questioned by police.

The powerful committee’s debate on counter-terrorism laws came just after the arrest of Mohammed Haneef and is documented in files marked “secret” and “AUSTEO”, which stands for Australian eyes only.

Dr Haneef was accused of providing assistance in the 2007 Glasgow terror attack, but amid huge public controversy, the allegations were later disproven and Dr Haneef was awarded compensation by the Australian government.

The cabinet documents reveal then-attorney-general Philip Ruddock pushed for a range of new offences while Dr Haneef was still under investigation.

Critically, one of the proposals was to modify the right to remain silent during a terrorism investigation.

“I would also like NSC to consider whether amendments should be made to a suspect’s right to remain silent to allow a court to draw adverse inferences in a terrorism trial where an accused relies on evidence which he or she failed to mention when questioned by police,” Mr Ruddock wrote in his NSC submission.

The proposal was supported by the Australian Federal Police and ASIO, but rejected by the majority of the senior ministers in the NSC.

Liberal MP Kevin Andrews is the only current politician who was a member of the NSC at that time.

Current ASIO director-general Duncan Lewis was then an adviser in the prime minister’s National Security Division and along with a colleague, he argued strongly against Mr Ruddock’s proposal.

“Implementing a new provision to allow adverse inferences to be drawn from a failure to mention something when questioned is likely to involve more risks than benefits and will engage lawyers much earlier on in any investigation,” Mr Lewis wrote.

He also warned the raft of proposed changes would be controversial.

“Any strengthening of the counter-terrorism powers will attract significant media and public debate,” Mr Lewis said.

A spokeswoman for Mr Howard told the ABC he did not comment on discussions in the NSC, but pointed out that no such change to the law was made.

The ABC has also contacted Mr Ruddock and Mr Andrews for comment.

The divisive political commentator who breached section 18C of the Racial Discrimination Act was consulted when the federal government moved to change it, according to the draft legislation contained in The Cabinet Files.

The cabinet documents reveal Andrew Bolt was asked how to stop the act’s “unreasonably restrictive” reach that led to the successful claim against him in 2011.

Bolt denies he was consulted on changes to the act.

“I was not consulted but was once told what had been decided,” he told the ABC.

“I had absolutely no role at all in drafting legislation. Concerns I expressed about the ambit of the proposed changes had no effect.”

The Federal Court ruled Bolt breached the act when he published an opinion piece about “white-skinned Aborigines” and their entitlement to welfare.

Justice Mordecai Bromberg found the articles were not written in good faith and contained factual errors.

Section 18C makes it illegal to offend, insult, humiliate or intimidate someone on the basis of their ethnicity, race or colour.

Bolt led the charge of conservative politicians and commentators campaigning to change it, arguing it inhibited free speech because the threshold was too low.

He was the only person specifically named as having been consulted.

The draft cabinet submission states:

“All points of view were canvassed including those of ethnic community groups, Indigenous leaders, leaders of the Jewish community, Mr Andrew Bolt himself and backbench members of the government.”

The cabinet also considered extending discrimination protection on the basis of “sexual orientation, gender identity and intersex status”, but ultimately decided against it.

Last year the Federal Government tried to strengthen the test in the act, so that it would only be illegal to “harass” someone on the basis of their ethnicity, but it failed in a late-night Senate sitting.

Former prime minister Tony Abbott ignored the advice of his own department and the Australian Government Solicitor (AGS) when he ordered confidential cabinet documents be handed to the home insulation royal commission.

Mr Abbott promised the controversial inquiry into Labor’s home insulation scheme during the 2013 election campaign.

Once in office, his decision to break the century-old doctrine of cabinet confidentiality and hand over Labor’s cabinet documents sparked the alarm of the opposition and past prime ministers of both persuasions.

At the time, the attorney-general said the decision was based on the advice of the AGS.

But documents show both the AGS and the secretary of the prime minister’s own department warned Mr Abbott against it.

“We think it would be highly undesirable (and legally confounding) if the Commonwealth were to simply produce cabinet-related documents to the royal commission on the basis of a purported waiver of public interest immunity,” reads the undated advice from Tom Howe QC, chief counsel at the AGS.

“We consider that producing cabinet-related documents to any court or tribunal … would not accord with legal practice and principle.

“We are not aware of the Commonwealth ever having taken such an approach in relation to cabinet-related documents.”

The secretary of the Department of Prime Minister and Cabinet, Ian Watt, also warned Mr Abbott against handing over the documents in an unusually blunt and frank note sent to the prime minister and his chief of staff Peta Credlin.

“There is a longstanding and strong convention that deliberations and discussions within cabinet remain confidential and that one government does not seek access to the cabinet records of a previous government,” the draft advice reads.

“This convention was reaffirmed by your government at its September 18, 2013 ministry meeting.”

After the release of The Cabinet Files, Mr Abbott said his reasons for providing the documents to the royal commission were in the public interest.

“I did because it is the job of the government not just to passively and supinely accept public service advice,” he said.

“It’s the job of the government to do what it believes is in the nation’s best interest.

“I thought we owed it to the country, we certainly owed it to the grieving parents of the four young men that were killed … to get to the bottom of it.”

Kevin Rudd, Julia Gillard and two senior Labor ministers were warned about “critical risks” of the home insulation scheme before the deaths of four young installers, according to a report in The Cabinet Files.

The infamous Energy Efficient Homes Package rolled out subsidised insulation as part of an economic stimulus package, but was scrapped after the installers’ deaths.

Mr Rudd told a royal commission into the program the rollout would have been delayed had cabinet been warned of the safety risks.

“Right through until February 2010 … each of the monthly reports said that the Energy Efficiency program of the government was on track,” he said.

He said he did not know why public servants had not raised safety concerns.

But a report to cabinet from April 6, 2009 does warn of “critical risks” associated with the program. It does not specify whether any of these were safety concerns.

“[The Department of Environment] has undertaken a risk assessment which reveals a large number of critical risks for the Energy Efficient Homes Package,” the report reads.

Many of these risks cannot be adequately managed in the lead-up to the July 1 start date. The timeline is extremely tight.

In a written submission to the royal commission into the insulation program, Mr Rudd stated that he had only received two implementation reports, written in February 2009, and that he had “no record of receipt of others subsequent to that”.

The implementation report from April, contained in The Cabinet Files, was prepared weekly by the Office of the Coordinator-General for the Strategic Priorities and Budget Committee (SPBC).

Mr Rudd, his deputy Ms Gillard, then-treasurer Wayne Swan and then-finance minister Lindsay Tanner made up the SPBC, or so-called ‘Gang of Four’.

At the royal commission, when Mr Rudd was asked specifically about the risk assessment undertaken by the Department of Environment, he said:

“I have no familiarity with that other than that I would assume that’s the normal thing a department would do.”

In response to The Cabinet Files, Mr Rudd told the ABC any assertion he was warned about safety risks was untrue.

“The Royal Commission into the Home Insulation Program had unprecedented access to cabinet material and made no adverse finding against Mr Rudd,” he said in a statement.

“Any assertion Mr Rudd was warned about safety risks to installers, or failed to act on such warnings, is completely baseless and untrue, as determined by the commission.”

The ABC has also contacted Ms Gillard, Mr Swan and Mr Tanner for comment.

Scott Morrison agreed his department should intervene in ASIO security checks to try to prevent asylum seekers from being granted permanent protection visas.

In late 2013, the then-immigration minister was rushing through changes that would prevent any asylum seekers who arrived by boat from ever being granted permanent protection in Australia.

The Department of Immigration and Border Protection advised Mr Morrison that up to 700 asylum seekers “must” be granted permanent protection under the existing legislation.

The minister was clearly concerned, requesting the exact number and advice on whether he could confer an alternative visa.

The department wrote back with a range of “mitigation strategies” and the minister signed up.

In an unorthodox move, Mr Morrison agreed his secretary should write to the director-general of security to request ASIO delay security checks so that people close to being granted permanent protection would miss the deadline.

The document states that if ASIO did not comply with Mr Morrison’s request, 30 extra asylum seekers would likely be granted permanent protection each week.

It meant refugees about to start a new, permanent life in Australia would only be allowed to stay for three years.

He also agreed to reissue an order to the Administrative Appeals Tribunal and Refugee Review Tribunal to hear cases in a particular order to further slow down processing.

The initial order was sent to the two tribunals by former Labor immigration minister Brendan O’Connor months earlier.

The advice prepared for Mr Morrison notes that ASIO is not formally bound by the request, but the two tribunals are.

The secretary of the Immigration Department wrote to ASIO, but it is unclear whether ASIO complied with Mr Morrison’s request.

The ABC contacted Mr Morrison and ASIO for comment.

Tony Abbott’s “razor gang” considered banning anyone under 30 from accessing income support in a radical proposal ahead of the 2014 budget.

The expenditure review committee, or razor gang, was made up of then-prime minister Mr Abbott, then-treasurer Joe Hockey and Finance Minister Mathias Cormann.

It requested then-social services minister Kevin Andrews look at how to ban “job snobs” from receiving the welfare payments.

In a document marked “protected”, “sensitive” and “cabinet in confidence”, Mr Andrews proposed three options to permanently or temporarily halt income support for job seekers under 30.

They included cutting off under-30s entirely, cutting off under-30s in areas with employment opportunities, and limiting income support to young people with a work history.

There was also an option to roll out an income-managed basics card to “lessen the harshness of the measure”.

The most extreme proposal would have saved the government nearly $9 billion over four years.

But Mr Andrews, who is a strong factional ally of Mr Abbott, also anticipated a backlash.

The documents reveal he may have been responsible for killing off the plan.

In a draft letter to Mr Abbott and copied to then-employment minister Eric Abetz and then-human services minister Marise Payne, he expressed “significant concerns” about the razor gang’s request.

“This is a fundamental change to Australia’s universal social security system … it is not clear that there is a strong evidence base for this approach,” he wrote in the attached proposal.

“Young people in financial hardship could experience homelessness, be driven to crime and other antisocial behaviour, family breakdown and possible criminal flow-on resulting from removing the social security safety net.”

He noted that there was already a crackdown on youth welfare factored into the 2014 budget and suggested any further changes be part of a broader review of welfare.

The ABC contacted Mr Abbott, Mr Hockey, Senator Cormann, Mr Andrews, Senator Abetz and Senator Payne for comment.