Neither confirm nor deny: Foreign Investment Review Board secrecy

The Albanese Government is going to extremes to prevent scrutiny of decisions by the Foreign Investment Review Board. Rex Patrick reports on a transparency triple scam.

The FIRB is tasked with ensuring that foreign investments are in our national interest. But without transparency, how do we know that these cases have been adequately assessed?

In short, we don’t, as the Albanese Government continues to come up with new ways to stop transparency

Scam One – neither confirm nor deny

A month ago, MWM brought you a ‘What’s the Scam’ about a Shanghai businessman with connections to the Chinese Communist Party purchasing significant blocks of land within a stone’s throw of a possible AUKUS nuclear submarine base at either Newcastle or Wollongong.

Which of those sites will finally get the nod is Defence’s best-kept political secret, and so the CCP appears to have hedged its bets with a land purchase in each port precinct.

Port Kembla Plot thickens as Defence looks away. What’s the scam?

The scam we reported on was the fact that Defence did not seem to know about it.

With denials all round from Government officials, MWM initiated a Freedom of Information request to Treasury to see how the Foreign Investment Review Board (FIRB) dealt with the issue, and who they consulted with.

In a four-page decision, Justin Baguley, the Assistant Secretary in charge of Treasury’s Investment Review Branch, refused to either confirm or deny that any FIRB documents existed.

Neither Confirm Nor Deny (Source: Treasury)

Yeah, right…

The problem is, Section 25 of the FOI Act only allows an Agency to ‘neither confirm nor deny’ documents exist if confirming their existence would in itself harm national security, affect law enforcement or reveal that a politician has requested a confidential budget costing from the Parliamentary Budget Office.

There’s no scope to ‘neither confirm nor deny’ that a document exists on commercial grounds. MWM has appealed the Treasury decision.

The decision maker then went on to make claims that if the documents did exist:

1. They would contain information that had come from ASIS, ASIO or other intelligence agencies
2. They would contain information obtained in confidence
3. They would contain information that, if revealed, would completely disrupt Australia’s foreign investment process if there was even a bit of scrutiny (author’s editorial summary) – even though New Zealand are able to be transparent in what it does.
4. They would contain business information.
5. Their disclosure would affect Australia’s international relations (noting it might involve a foreign government as a shareholder or an owner)

Foreign Government Involvement (Source: Treasury)

Scam Two – Appeal the umpire’s decision

This new decision follows a separate four-year fight to get access to the former Morrison Government’s decision to allow the China Mengniu Dairy Company Limited to acquire the Australian baby food company Bellamy’s Australia Ltd.

After a protracted four-year battle between the writer and Treasury, the independent umpire (the FOI Commissioner) granted public access to the Treasury’s analysis and decision. MWM advised its readers of the win but predicted that the Government would appeal the Commissioner’s decision.

Rex finally cracks secret FIRB safe, finds vaults of ‘protected information’ for foreign interests

And appeal they did.

And so now, five years after that request was made, the Government’s well-paid lawyers and barristers – all paid for by you – are in a knock-down, drag-out legal fight with MWM in the Administrative Review Tribunal to block any public visibility of FIRB processes.

Scam Three – Legislate the win

The scam trifecta comes in courtesy of Prime Minister Anthony Albanese’s new ‘stop access to any important documents’ FOI amendment Bill, which, among many other things, has a specific, tailored provision designed to change the law to block scrutiny of FIRB matters, including in relation to my FIRB FOI matter under appeal.

FOI Amendment Bill FIRB Changes (Source: Federal Parliament)

The Government was hoping the FOI Amendment Bill would be passed into law this year. But the Liberals and the Greens put a Senate Inquiry spanner in the works, which means the Bill won’t be dealt with this year.

So, one can expect that if MWM win in the Administrative Review Tribunal, the Government will lodge an appeal in the Federal Court just to make sure that the matter remains in a state of appeal.

Such a manoeuvre would be an abuse of process, but it’ll likely be dressed up as a ‘question of law’ to the Federal Court. But who cares? It’s a rare thing that anyone gets held to account for these sorts of bureaucratic and political abuses, and the $5,700 court application fee, and all the lawyer’s invoices will be paid for by the taxpayers.

Meantime, however, MWM will be FOI’ing the Treasury’s contributions to the drafting of Albanese’s FOI sabotage legislation, so we might see which senior Treasury bureaucrats thought it would be a good idea to get the Government to try to wipe out an FOI appeal with a specific amendment.  They won’t like that very much, so there’ll probably be another FOI fight ahead.

FOI amendment bill. A transparency counter-revolution.

Rex Patrick

Rex Patrick is a former Senator for South Australia and, earlier, a submariner in the armed forces. Best known as an anti-corruption and transparency crusader, Rex is also known as the "Transparency Warrior."