Foreign Affairs, Defence and Trade Legislation Committee - 30 May 2012

Senator Di Natale asked questions about declassification of documents relating to East Timor and Australian diplomatic cables from 1974 onwards.

Senator DI NATALE: I would like to discuss a request from Professor Fernandes, who requested that secret cables that were written by Australian diplomats in Indonesia be released to him. I understand that DFAT requested Minister Roxon to block the release and that in fact a certificate was signed suppressing the release and suppressing the reasons for the release. The question I have is: is it common for DFAT to apply for these certificates?
Mr R Rowe: In this particular matter, the request for the release of documents by Professor Fernandes was made to the National Archives. It is totally normal practice for the National Archives to consult the agencies that have contributed the documents to those archives as to whether or not they have any views as to their release. In the case of the particular documents that were requested, the Department of Foreign Affairs and Trade did have some views which were reflected in an affidavit, but that is only, you might say, advisory. The actual decision on the release of the documents is for the National Archives itself to make. It has made several decisions in relation to the documents that have been requested and, as you would be aware, those are under consideration, under appeal, in the AAT, the Administrative Appeals Tribunal. Insofar as the certificate is concerned, that is a matter for the Attorney-General to act upon. The Attorney has, I understand, issued such a certificate. What I am saying is that it is not the prerogative of the Minister for Foreign Affairs, for example.
Senator DI NATALE: Sure. But is it common for the department to apply for these certificates? Mr R Rowe: In relation to the department of foreign affairs, in my experience, no, because this certificate is issued by the Attorney-General in relation to this particular matter.
Senator DI NATALE: On how many occasions would there be disagreement between the department and the Attorney-General?
Mr R Rowe: Between our department and the Attorney-General?
Senator DI NATALE: Yes.
Mr R Rowe: I am sorry; I am not quite sure what you mean—'disagreement'?
Senator DI NATALE: I suppose if there is an application for a certificate and it is denied. Does that occur?
Mr R Rowe: I am not aware of that situation arising, no.
Senator DI NATALE: Are you aware of how many times the Attorney-General has intervened in matters like this?
Mr R Rowe: No, I am not. You would have to ask the Attorney-General's Department.
Senator DI NATALE: Okay. Getting back to that issue: I am just getting a sense of whether this is a highly unusual case, as it seems to be, or whether it is common practice for politically sensitive documents—for example, some documents obtained under FOI—to be released in redacted form. Firstly, how common is that?
Mr R Rowe: Generally, in relation to FOI requests that are made of the department of foreign affairs, we, like other departments and agencies, consider those requests in conformity with the freedom of information act. Certainly our department has a pro-disclosure approach to the new FOI reforms but of course, as you would be aware, under that act we need to assess the releaseability of documents taking into account the various provisions in the act. There are, as you would be aware, very clear grounds for exempting certain documents. We do, in relation to various requests from time to time, exempt documents from release, and that is a very normal application of the act.
Mr Richardson: If I could add to that: it is not uncommon for us to redact, the reason being that we are dealing with a lot of classified material. A lot of our work is classified. Therefore it is not uncommon for some of our responses to FOI requests to be in redacted form.
Senator DI NATALE: I am surprised then—was that an option in this case?
Mr Richardson: The judgment was taken that, no, that was not an option.
Senator DI NATALE: Was there any particular reason why that was not an option in this case?
Mr Richardson: Because of the material within it and the classification of it.
Senator DI NATALE: Was there any consideration given to lowering the document's level of classification without declassifying it completely?
Mr Richardson: No, that was not an option.
Senator DI NATALE: Not an option?
Mr Richardson: No.
Senator DI NATALE: What about releasing the documents to certain parties? Is that ever done?
Mr Richardson: That was not an option.
Senator DI NATALE: Is that ever done though? I just want to get a better understanding of how all this works.
Mr Richardson: In the context of FOI, I am not aware of that.
Senator DI NATALE: I suppose one of the reasons for asking the question, and I think it is reasonably obvious, is that many of the documents relate or are highly likely to relate to the murders of the Balibo Five. Has the department considered releasing only those documents which relate to ongoing criminal investigations—for example, the Balibo Five investigations currently being undertaken by the AFP—and only to certain parties; in this case, those being the AFP investigators?
Mr R Rowe: The AFP is conducting, as you mention, an investigation, so the department is cooperating with the AFP in its investigation. But, frankly, I cannot go into aspects of that cooperation. It is a matter that you would have to ask the AFP about because they are the lead agency in that regard.
Senator DI NATALE: On a situation like this, a sensitive matter, would the department discuss with other departments or would it make its decision unilaterally?
Mr Richardson: It depends upon the nature of the material. It may involve discussions with other departments from time to time. Of course, in the context of AFP investigations, that is a matter for the AFP. It would be quite wrong of us to release material, even selectively, in the context of a police investigation. That is a judgment for the AFP.
Senator DI NATALE: Do you have any specific criteria or do you do these things on a case-by-case basis?
Mr Richardson: It is case by case in accordance with the act.
Mr R Rowe: That is exactly right.
Senator DI NATALE: Who actually makes the decision to request an extension to the classification? Whose final decision is it?
Mr R Rowe: Sorry, Senator—to request an extension to the classification?
Senator DI NATALE: Yes.
Mr R Rowe: I do not quite understand what you mean.
Senator DI NATALE: Who makes the final decision in the end to make a recommendation about what should be done about a request?
Mr R Rowe: When an FOI request is received in the department, for example, a decision maker is appointed, and that decision maker then reviews the documents and makes recommendations. Those are then considered, if required, by senior officers in the department and the documents are then released in whatever form the decision maker has recommended. Throughout the process the decision makers are given very clear and precise guidelines which are totally in conformity with the act, but the prerogative is with the decision maker to come to his or her own determination about what should or should not be released.
Senator DI NATALE: So, in a case like this, which is clearly sensitive, you are saying that the secretary of the department or the minister would not be involved?
Mr R Rowe: That is correct, yes. Normally that would not be the case at all, no.
Senator DI NATALE: So in this situation would it be fair to say that this decision maker was appointed and they made the decision in accordance with what we have discussed previously?
Mr R Rowe: In relation to the particular documents you have referred to, the National Archives consulted the department, and the department's view, as I understand it, would have been determined at the decision maker level and it would have been conveyed to the National Archives.