6 years ago
CHILLING EFFECT OF PORTER’S GAG
JULIAN HILL MP
Letters released by the Auditor-General last week reveal the Department of Home Affairs as the first department to formally flag its attempts to avoid public scrutiny by asking the Attorney-General Christian Porter to use extraordinary powers to gag the Auditor-General, in an audit into the Cape Class patrol boats.
This follows an unprecedented decision in June by the Attorney-General to hide the Auditor-General’s findings on whether a major defence procurement project delivered value for money for the Commonwealth.
For the first time ever, the Attorney-General’s powers were used under Section 37 of the Auditor-General Act to force the Auditor-General to delete large slabs of an audit report into a $2.2 billion purchase of the Australian Army’s Protected Mobility Vehicle–Light.
In October the Auditor-General gave public evidence of his concern that more agencies may now threaten to gag him:
“…since this issue has arisen … I think for the first time in the course of our work agencies are starting to raise with us issues about seeking certificates on matters. So, while some of the conversation's been about how this has only happened once, one of my concerns around some of the issues and processes here is that, for the first time for us, people are starting to flag this as a course of action early in processes. That's one issue that has concerned me since this time.”
Auditor-General, Mr Grant Hehir, 19/10/18, JCPAA Public Hearing
The chilling effect on the Auditor-General’s independence is now apparent as Peter Dutton’s already secretive department becomes the first to formally flag it may seek a certificate from the Attorney-General to censor independent audits:
“…we note the terms of section 37 of the Auditor-General Act 1997—in particular subsections 37(1), 37(2)(e) and potentially 37(2)(f)—and flag a potential application from the Department…”
First Assistant Secretary, Department of Home Affairs, Letter dated 4/10/18 to Auditor-General released 14/11/18
The first ever request to invoke these extraordinary powers came at the request of a private multinational company, Thales, for a certificate under section 37(2)(e) of the Act, to prevent “unfair prejudice” to their commercial interests.
The Attorney-General tried to cloak his decision to protect Thales’ commercial interests, by claiming censorship was needed to protect the “security, defence or international relations” of the Commonwealth under section 37(2)(a) of the Act.
But in evidence provided to the Joint Committee of Public Accounts and Audit (JCPAA) the Auditor-General revealed that when the draft report was completed for release in January 2018, he “had worked through all national security issues” with the Department of Defence which had no outstanding defence or security concerns about the audit’s publication.
It was only many months after Thales lodged a case in the Federal Court on 5 January and asked the Attorney-General to censor the audit report that Liberal Ministers then claimed the audit report’s publication would prejudice Australia’s defence and security.
While Mr Porter’s actions were within the bounds of the Act, and protecting national security must be ensured, it is clear such powers should be used in extraordinary circumstances only. Mr Porter has still not given a valid explanation as to his actions in this case.
Labor is the only party of government truly committed to strengthening Commonwealth integrity arrangements, including the introduction of a National Integrity Commission, which the divided Liberal Government continues to oppose.
The very least that Australians should expect is that the independence of existing watchdogs like the Auditor-General is protected. This is absolutely central to any claim of credibility of parliamentary control over the executive in the Westminster system.
Labor will carefully consider the need for possible changes to the Auditor-General Act after the JCPAA has completed its inquiry.
This follows an unprecedented decision in June by the Attorney-General to hide the Auditor-General’s findings on whether a major defence procurement project delivered value for money for the Commonwealth.
For the first time ever, the Attorney-General’s powers were used under Section 37 of the Auditor-General Act to force the Auditor-General to delete large slabs of an audit report into a $2.2 billion purchase of the Australian Army’s Protected Mobility Vehicle–Light.
In October the Auditor-General gave public evidence of his concern that more agencies may now threaten to gag him:
“…since this issue has arisen … I think for the first time in the course of our work agencies are starting to raise with us issues about seeking certificates on matters. So, while some of the conversation's been about how this has only happened once, one of my concerns around some of the issues and processes here is that, for the first time for us, people are starting to flag this as a course of action early in processes. That's one issue that has concerned me since this time.”
Auditor-General, Mr Grant Hehir, 19/10/18, JCPAA Public Hearing
The chilling effect on the Auditor-General’s independence is now apparent as Peter Dutton’s already secretive department becomes the first to formally flag it may seek a certificate from the Attorney-General to censor independent audits:
“…we note the terms of section 37 of the Auditor-General Act 1997—in particular subsections 37(1), 37(2)(e) and potentially 37(2)(f)—and flag a potential application from the Department…”
First Assistant Secretary, Department of Home Affairs, Letter dated 4/10/18 to Auditor-General released 14/11/18
The first ever request to invoke these extraordinary powers came at the request of a private multinational company, Thales, for a certificate under section 37(2)(e) of the Act, to prevent “unfair prejudice” to their commercial interests.
The Attorney-General tried to cloak his decision to protect Thales’ commercial interests, by claiming censorship was needed to protect the “security, defence or international relations” of the Commonwealth under section 37(2)(a) of the Act.
But in evidence provided to the Joint Committee of Public Accounts and Audit (JCPAA) the Auditor-General revealed that when the draft report was completed for release in January 2018, he “had worked through all national security issues” with the Department of Defence which had no outstanding defence or security concerns about the audit’s publication.
It was only many months after Thales lodged a case in the Federal Court on 5 January and asked the Attorney-General to censor the audit report that Liberal Ministers then claimed the audit report’s publication would prejudice Australia’s defence and security.
While Mr Porter’s actions were within the bounds of the Act, and protecting national security must be ensured, it is clear such powers should be used in extraordinary circumstances only. Mr Porter has still not given a valid explanation as to his actions in this case.
Labor is the only party of government truly committed to strengthening Commonwealth integrity arrangements, including the introduction of a National Integrity Commission, which the divided Liberal Government continues to oppose.
The very least that Australians should expect is that the independence of existing watchdogs like the Auditor-General is protected. This is absolutely central to any claim of credibility of parliamentary control over the executive in the Westminster system.
Labor will carefully consider the need for possible changes to the Auditor-General Act after the JCPAA has completed its inquiry.