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Bungling Crown Privilege: Australia’s Cabinet Security Breach

Journalists would have seen it as a scoop, and insisted that no laws had been broken. Politicians might have considered it a calamity. Whatever one terms Australia (parliamentary democracy; constitutional monarchy) secrecy remains the state’s watchword. When it comes to bureaucratic provisions that supposedly safeguard the state against the prying eyes of the public, all justified in their name, Australia does rather well.

This is particularly so on the subject of Cabinet files, insulated from public view by that curious legal creature known as public interest immunity. In its older variant, the term “Crown privilege” was used. Over history, the courts of Britain and Australia have shown a marked trust in the word of a minister.

As the House of Lords decision of Duncan v Cammell Laird & Co. (1942) asserted, the minister’s certification that the documents should not be produced as contrary to the public interest was essentially unimpeachable. The public, effectively, had to be protected from the government’s own conduct.

Cabinet minutes, discussions and associated documents were deemed particularly sensitive, though Australian courts have, at stages, taken it upon themselves to determine whether their contents ought to be made known to the public.

In the words of High Court Justice Harry Gibbs in Sankey v Whitlam (1978), “It is however clear that the court should prevent the disclosure of a document whose production would be contrary to the public interest even if no claim is made by the Minister or other high official that its production should be withheld.” How paternalistically grateful we must all be for that.

Cabinet is an enclave, where, supposedly, frontbenchers of government can hammer out in frankness and candour policy viewpoints in a pre-pasteurised way. In such a state, the goo, the fat and the flavour remain, at least before it reaches the party room or parliamentary chamber. By that point, sanitisation might have taken place and scandal avoided.

That this approach, and dare one say it, mentality, has not been challenged with more rigour by Australian electors and, in some cases, the elected, is a sure sign about how healthy the actual state of democracy is in the country. Nanny and nurse, in other words, retain their aura, a vestigial power over the political fabric.

All’s the more interesting, then, when this wall of secrecy finds itself breached. This week, government faces turned crimson with what may well be one of the largest breaches of cabinet security in the country’s history.

It all happened because documents were found in two locked filing cabinets as part of an auction of ex-government furniture in Canberra. The files in question duly wound their way to the national broadcaster, precipitating discussion between the ABC and the Department of Prime Minister and Cabinet.

On late Thursday evening, officers from the domestic intelligence agency, ASIO, could be seen retrieving the papers in question in Brisbane, Melbourne and Canberra from the premises of the ABC.

The return of the documents was discussed in a statement released by the ABC. “The ABC and the Department of Prime Minister and Cabinet have agreed on the securing of and the return of the documents which were the subject of the ABC’s Cabinet Files reporting to the Commonwealth.”

The statement continues, not without some cheekiness, that, “This has been achieved without compromising the ABC’s priority of protecting the integrity of its source and its reporting, while acknowledging the Commonwealth’s national security interests.”

The documents – numbering thousands marked “top secret” and “AUSTEO” (for Australian Eyes Only) are illuminating on a several levels. For one, they enable Australians – and others, for that matter – to get a flavour of what exactly is busying those keen members of Cabinet.

A series of reactionary nuggets come to the fore. Former immigration minister, Scott Morrison, for one, is particularly charming. When advised by the Department of Immigration and Border Protection that up to 700 asylum seekers had to be granted permanent protection under existing legislation, he demurred. He duly sought “mitigation strategies” to prevent such a grant, including delaying ASIO’s security-checks. Deadlines would duly pass, as would the problem.

Another juicy instalment can be found in a proposal considered by the Abbott government ahead of the 2014 budget to ban anyone under 30 from accessing income support. The expenditure review committee, comprising the dark Trinitarian force of former Prime Minister Abbott, former Treasurer Joe Hockey and Finance Minister Matthias Cormann, requested then social services minister Kevin Andrews to consider methods of prohibiting “job snobs” from receiving welfare payments.

The response from parliamentarians to this breach do not centre on scolding government officials or members of cabinet for inappropriate views or policies. Attitudes and opinions are less important than the management of information. The breach, in other words, rather than the substance of it, is what matters.

Chris Bowen of the opposition Labor Party, for instance, fears for his country, which is another way of saying he fears what others might think of it. “This is embarrassing for the country, it is embarrassing to our allies who share intelligence with us and assume that we will be able to keep it.”

The Department of Prime Minister and Cabinet have come to a solution on how best to cope with the breach: investigate itself. The prospects of this generating into a Canberra farce, a bureaucratic comic interlude, are high.

One person not laughing (he rarely does in any case) is former intelligence analyst and current independent member of the Australian federal parliament, Andrew Wilkie. “We need an independent investigation to look at this systematically.” This is exactly what the government will do its best to avoid.


12 comments

  1. Clean livin

    This should put paid to the ongoing farce that the Federal Government operates under the Westminster System. I have not heard that the responsible Minister, in this case, the PM has resigned, or intends to resign.

    Surely, as night follows day, this is all Labor’s fault!

  2. Florence nee Fedup

    Not his fault. Seem to be blaming Abbott on Insiders. According to PM,it is disgraceful, heads should roll.

  3. Peter F

    We all know the reaction if this had happened under Labor. At least this mob are consistent in their standard of competence, if only voters had their eyes open.

  4. helvityni

    Florence, nothing is his fault, in his typical fashion Turnbull talked over Cassidy, obviously did not want to answer any hard questions…

  5. Diane Larsen

    After watching insiders this morning how anyone could retain any confidence in our lying tosser of a prime minister beggars belief so many calamities and not a scrap of responsibility accepted by this hollow man.

  6. Jack Arnold

    Uhm …. I hope the ABC quite correctly added the proviso before the return of the documents to the RAbbott Morriscum Dutton Turdball LNP misgovernment, that the LNP political organisations would refrain from any “ABC Bashing” between now and the declaration of the next Federal election results.

    The question of correct legal ownership of these documents discovered inside locked cabinets formerly owned by the Federal government is interesting. It appears likely that under usual commercial practice, that the documents passed from the ownership of the Commonwealth to the initial overt purchaser for cash without notice, when they were sold to the second-hand furniture dealer, and then passed on legally to the second overt purchaser for cash without notice, who in turn gifted the documents to the ABC.

    The fact that the documents were inside the locked cabinets might be interpreted as those documents were part of the object purchased, “locked cabinet with contents”, correctly the cabinet and its contents, because any sensible vendor would have emptied the cabinets before offering them for sale.

    The matters of security clearance is a separate issue that would be an interesting prosecution in the light of commercial law.

  7. Kronomex

    In a strange way all I can think of now is THHGttG sequence about plans and locked cabinets. It also goes without saying that of course Trembles will blame everyone else for this debacle when as we all know, “The buck stops here.” should apply.

  8. jamesss

    If these cabinets are the result of an enterprising whistle blower, I for one want to see more exposure of these treasonous non humans.

  9. Andrew Smith

    Think I saw in Fairfax or related someone or a source trying to pin blame on Penny Wong….. these giys never give up….

  10. writtenword09

    Andrew Smith..I’ve read in the Cabinet Files at the ABC where they say classified documents were found in Penny Wong’s office but are not related to the Cabinet files or the 100’s of documents lost by the AFP

  11. Shutterbug

    And not one person is pointing a finger at Dutton. You should know him. He’s the one crapping on about security being his highest priority.

    So, where’s Know Nutton Dutton’s head-on-a-plate moment?

    Nowhere…….. as to be expected.

  12. win jeavons

    wouldn’t it be lovely if all we common folk could be our own judge and jury , giving ourselves a slap on the wrist with a train ticket when necessary.

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