Cracks form in the convention of cabinet confidentiality, PM&C gets the glue

By Stephen Easton

Thursday February 1, 2018

What a week. The age-old doctrine of cabinet confidentiality that shrouds the process of government decision making has taken serious damage, due to what looks like careless disposal of old furniture.

The Department of the Prime Minister and Cabinet is scrambling to do what it can to gain control of the situation but it seems highly likely that someone is going to get fired for this. We all make mistakes but sometimes heads must roll. One former secretary of PM&C, Terry Moran, had a message for whoever’s fault it was, in a television interview last night:

“Apart from anything else, you ought to be found and sacked.”

To recap, the ABC obtained cabinet documents from past governments and says its source found them in a secure filing cabinet they bought from an ex-government furniture outlet.

Ironically, those documents revealed several other previous breaches of security and cabinet confidentiality over the past few years, such as classified documents being lost by the Australian Federal Police and some being left in Senator Penny Wong’s office when she was a minister.

Former prime minister Tony Abbott seems pleased that for once, a breach of cabinet confidentiality is entirely the fault of public servants, not politicians leaking.

“The department has a responsibility to keep them safe,” he said on radio.

“Obviously some absolutely elementary mistake has been made, presumably by a relative junior or mid-ranking departmental officer and certainly someone needs to pay a price. There needs to be some consequences for what is a monumental lapse.”

However the 28th prime minister also faces serious questions now, arising from the contents of some of the documents, about his own decision to redefine what cabinet confidentiality means. He has defended his decision to voluntarily hand over cabinet-in-confidence material to the royal commission he called into his predecessor Kevin Rudd’s controversial home insulation scheme.

At the time Abbott and then-attorney-general George Brandis said their decision was “based on” the advice of the Australian Government Solicitor. The files obtained by the ABC contained that advice, and it clearly warns Abbott against doing so as he would be breaking an important convention, as did Ian Watt, the secretary of PM&C at the time.

Kevin Rudd is incensed at what he sees as an incorrect and defamatory imputation within the reporting on the home insulation program, and the several deaths linked to it, and is taking legal action against the ABC.

The files themselves have now come full circle, and are back in secure filing cabinets owned by the government that were helpfully provided to the national broadcaster by the Australian Security Intelligence Organisation in the wee hours of Thursday morning.

This appears to acknowledge the fact that the government still owns the documents, but PM&C has allowed the ABC to retain access for now. It appears to be stepping carefully to avoid any suggestion of heavy handed interference with the media.

The department’s latest update confirms it called the AFP and ASIO as soon as the ABC revealed the full story around midday on Wednesday:

“PM&C have been in discussion continuously with the ABC since this time. Documents were secured in the early hours of this morning in Canberra and Brisbane, and this was the outcome of a cooperative arrangement between the ABC and the Australian Government – it was not a raid.”

The ABC’s news director Gaven Morris also said it was not a “raid” – although more than one ABC reporter has used the same term to describe the action – and defended the broadcaster’s actions, which balanced national security and the privacy of individual public servants with their own role as an independent news reporting organisation that serves the public, not the government of the day.

That reporting also involved dripping out a few stories, which most readers assumed were deliberately leaked to the journalists, before dropping the bombshell about where they really came from. Some members of the government have criticised the ABC, but Deputy Prime Minister Barnaby Joyce seems to accept that in the context of its organisational purpose, it did the right thing.

It’s not even the first time this has happened — as The Mandarin reported in 2015, the Defence Security Agency investigated an incident where a large amount of very secret documents were left in a secure container that was sold as scrap metal — although none were cabinet-in-confidence documents, and they did not end up in the hands of journalists.

Still, that cache included 2402 “restricted” documents, 224 classified as “confidential” and 1158 designated “secret” — while 630 of the “secret” documents carried the additional caveat Australian Government Access Only (AGAO) and 246 more were for Australian eyes only (AUSTEO).

Terry Moran also told 7.30 host Leigh Sales that this general category of mistake was not unprecedented: “Well, I can recall a few instances in the past where personnel files in filing cabinets have ended up on tips, but I’ve never heard of, as I think the ABC is putting it, thousands of pages of cabinet documents being left in a filing cabinet and put out in this way.”

He added that greater digitisation, meaning more documents are created in a digital format and stay that way all the way to their resting place at the archives, would help prevent it happening again — although the government’s cyber security isn’t always perfect either. According to Moran, it might well be possible to track who had access:

“If they are cabinet documents they should have some identifier as to who it was intended would receive that particular copy of the document. But then if you work back from the sale records of whatever department disposed of the filing cabinet, you might also be able to find out who put the collection of papers together and failed to surrender them upon a change of government or a change of minister, as they’re supposed to do.”

The former head of the APS said that while the need for cabinet discussions and advice to stay confidential was crucial to “good decision-making” he agreed with the decision to reduce the period of confidentiality from 30 to 20 years, adding there was no “magic number” and the period could be shortened further.

He also admitted that not all cabinet-in-confidence documents had major national security implications and suggested a lot more could be released relatively soon after a decision was made with no major problem.

Updates: the AFP says one of the ABC’s articles was inaccurate as it later found 90% of the “lost” documents in question, and the cabinet files themselves have been returned.

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