The remarkable case of Australia's cabinet files

I have been working on the follow up post to my first post on surviving in an age of outrage, this one on survival in the public space, but this has taken longer than expected. While it's a reasonably long post, the delay reflects my difficulty in sorting through issues in my own mind. I hope to finish it soon, but in the meantime I wanted to make a brief comment on the remarkable story of the suddenly discovered Australian cabinet papers.

By way of background for international readers, the ABC reports that the story began at a second-hand shop in Canberra, where ex-government furniture is sold off cheaply.Among the items on sale were two heavy filing cabinets to which no-one could find the keys. They were purchased for small change and sat unopened for some months until the locks were attacked with a drill. Inside was the trove of documents now known as The Cabinet Files. The thousands of pages reveal the inner workings of five separate governments and span nearly a decade. Nearly all the files were classified, some as "top secret" or "AUSTEO", which means they are to be seen by Australian eyes only.

Following discovery, the files ended up in the hands of the ABC who are reporting on some of the documents (link above). Others were deemed by the ABC to be too sensitive to reveal. I wondered how this might have occurred.

It is now thirty years since I last dealt with highly classified material. Then my top level security clearance allowed me to see sensitive documents including top secret and code word protected. However, there were quite strict rules about those documents. Some I was given, but had to return once I had read them. Others could be stored in a secure heavy metal filing cabinet. A small number had to be stored in a safe. I did not have, did not want the hassle involved in having, such a safe, so these documents had to be returned once I had absorbed them.

When I switched jobs or the area was restructured, the cabinets would remain, with the keys handed over to my successor.

Against this background, I found the discovery a little surprising. I don't know what the filing cases looked like, whether they were just key opened or required a combination as well. I don't know where they were originally located, although from the sound of it it has to be in Prime Minister's and Cabinet, Finance, Treasury or a former minister's office since these were the only places that would have had access to the particular combination of cabinet documents involved.

The only way that I can explain the whole thing is that the filing cabinets in some ways became orphans. This might happen because an area was abolished or a minister lost position, leaving the cabinets behind with no-one responsible. Then they sat there sans keys until someone wanted to clear space. Even then, it's surprising with a disconnect between whoever shifted them and the person authorising the shift. They may have been seen as empty, but they were obviously heavy.

All hell is breaking loose, so we will learn more. One thing to be cautious of is the argument that the breach justifies abolition of paper files or copies. This was an error, not a leak. But if you really want to protect records from disclosure in whatever form by whatever means, keep them paper. Single disclosures of electronic records actually dwarf the total number of leaked written documents across human history.

Update Friday 2 February 2017

The photos I have now seen of the cabinets, assuming that the photo is real, show them with combination locks. At least one is labelled "Cab subs"! ASIO (the Australian Security Intelligence Organisation) has now retrieved the files. It has also been confirmed that the material came from the Department of Prime Minister and Cabinet.

In an opinion piece in the Fairfax press, Cabinet files reveal a dispiriting truth about how governments work, Waleed Aly expressed concern about the light thrown on the internal workings of government.

Put simply, we're seeing snapshots of governments that either ignore or bury independent advice they don't want to hear, that are prepared to mislead the public about the advice they receive, and that are quite prepared to intervene to politicise processes that masquerade as apolitical.

The first case he cited concerned release of cabinet documents at the time of the Pink Batts Royal Commission. There Mr Aly wrote in part:

And now we know just how belligerent prime minister Tony Abbott was in pursuing Rudd on this. We've known that when he set up the royal commission, he took the stunning step of ordering that confidential cabinet documents be handed over in violation of a century of convention. This, we were told (after it was initially denied), was based on the advice of the Australian government solicitor. 

Now we learn that this very same solicitor in fact gave the opposite advice, saying this would be unprecedented and inconsistent with "legal practice and principle". That advice was reinforced by the secretary of Abbott's own department. Perhaps there's some other legal advice out there taking the opposite position. Or perhaps we were misled.

I am not totally sure of the accuracy of the this part of the comment: "This, we were told (after it was initially denied), was based on the advice of the Australian government solicitor."  I wrote on the release of the documents to the Royal Commission at the time: - The principle of Cabinet confidentiality, Saturday 24 February 2014. If you look at the post, you will see how it evolved in light of comments and further information. This is not such a simple issue as My Aly's comment would seem to imply. 

The second case involved a request by then immigration minister Scott Morrison that ASIO go slow on its security checks of asylum seekers so the government could squeeze through changes that would deny these people permanent protection in Australia. This case made me very uncomfortable because it involved an apparent misuse of due process, of a Government determined to do whatever required to maintain its position regardless of convention. This has been a consistent pattern in the border protection arena, but has not been limited to that area.

In an apparently disconnected story, current Australian immigration minister Peter Dutton has called for public input into the selection of judges and magistrates. This formed part of his current law and order campaign. While he refused to comment on whether or not he supported adoption of the US system, his comments did seem to be going down that path. This led me to wonder if Mr Dutton understood the principles and history of our system of government. Perhaps not, or perhaps he considers them to be unimportant or outdated.

Whichever way, it is a worrying development considering his position in charge of the new mega Department of Home Affairs. To quote the Department,  this "brings together Australia's federal law enforcement, national and transport security, criminal justice, emergency management, multicultural affairs and immigration and border-related functions and agencies, working together to keep Australia safe."  With this combination of activities, Australians are heavily reliant on the willingness of the Department and its minister to follow due process and to temper what can be done with what should be done.