The Federal Government has successfully managed to bury, for twenty years, a report into how high-level AUKUS nuclear waste will be stored, and where. Transparency warrior Rex Patrick reports.
The circumstances of this case are extraordinary, as is the outcome. A report of very high public interest has effectively been hidden from view by the bureaucracy’s misrepresentation of the report’s nature and origin.
In early 2023, the Cabinet made some sort of direction for the Department of Defence to look into AUKUS’ high-level nuclear waste storage.
Ms Alexandra Kelton, a then Defence Department official and now Acting Deputy Director-General of Program and Policy in the Australian Submarine Agency (ASA) contracted a commercial company, SG Advice, to prepare a report.
This is despite the Cabinet Handbook expressly prohibiting external contractors from seeing or handling Cabinet documents.
The Cabinet Handbook states, “It is inappropriate to provide copies of, or access to, final or draft Cabinet documents to sources external to government.”
Nuclear waste. Fifty years of searching, still nowhere to dump it.
There was no evidence that a direction was made to produce a report for Cabinet. The February 2023 letter of engagement explains that the role of SG Advice would be advisory in nature and that any decision related to the storage and disposal of radioactive waste is “a decision for the Australian Government.”
Ms Kelton later deposed that the words “Australian Government” mean “Cabinet”. Administrative Review Tribunal (ART) Deputy President, Peter Britten-Jones, swallowed that.
Insecure and unsecured
Consistent with a document that is not a Cabinet document, the nuclear waste review was prepared on unclassified computers and transferred on unclassified networks across multiple agencies.
The Cabinet Handbook, which sets out Cabinet rules and is signed by the Prime Minister and Attorney General, states that in preparing Cabinet documents, such documents must be prepared on a separate secure Cabinet System called CabNet.
It further states that Cabinet Division manages and maintains the CabNet+ system, which is the real-time, secure, whole of Australian government information and communications technology system used to support the Commonwealth’s end-to-end Cabinet process.
The system provides electronic access at the PROTECTED and SECRET security classifications from approved networks across government.
It is likely that Ms Kelton and perhaps others engaged in breaches of security by not enforcing this rule. Lawyers for the Australian Submarine Agency suggested that Ms Kelton’s statement, “as a matter of practicality for communicating and formatting parts of the draft, that process occurred outside the CabNet system,
should be given more weight than the rules set by the Prime Minister and Attorney-General.
RoboDebt conduct, eat your heart out. Britten-Jones referred to these as “irregularities”, and then just moved on.
Bad decisions by ART
Britten-Jones is the Division Head of the General Division of the Administrative Review Tribunal which deals with the Tribunal’s FOI decisions. He has been with the Tribunal since 2016. He was first a solicitor, then a barrister.
Yet Britten-Jones saw fit to overturn the clear principle – Cabinet must commission Cabinet documents – laid out in then Information Commissioner Leo Hardiman’s decision in the Sports Rort case (see below), to instead make it possible for any public servant to decide something ought to go to Cabinet, a process that invokes one of the criteria to cast a secrecy blanket over a document for decades.
As things now stand, any mid-ranking bureaucrat can unilaterally declare that a report was intended for Cabinet and Cabinet secrecy will apply, shrouding failures, scandals and politically awkward problems from public scrutiny for decades.
I want to be fair to Britten-Jones. He has made some good FOI decisions. He’s also made some bad ones. The last two appeals to the Full Federal Court on his FOI decisions have delivered scathing judgments and resulted in matters being returned to the ART to be heard in accordance with law.
This latest decision is a bad one, too. It’s a very bad decision.
Sports Rorts precedent
In October 2022, Leo Hardiman PSM KC ordered the Government to hand me the Gaetjens review into Sports Rorts. Even though the head of the Public Service and Secretary of Prime Minister and Cabinet, Phil Gaetjens, had declared the document was commissioned for Cabinet.
Hardiman was not satisfied this was the case because there was no evidence that the commissioning request had come from a Cabinet Member. Long-standing convention, upon which all the law around Cabinet rests, has Cabinet setting its own agenda, not public servants.
Gaetjen’s review had been commissioned by then Prime Minister Scott Morrison, but not explicitly for Cabinet. In Hardiman’s decision, he said of Scott Morrison’s commissioning letter:
“I have considered the former Prime Minister’s letter dated 17 January 2020. There is nothing in this letter that explicitly states that the former Prime Minister intended for the Report to be submitted to the Governance Committee [of Cabinet], nor does it reference a Cabinet process.”
Gaetjen’s later claim that the review was always meant for Cabinet didn’t cut it in the absence of written evidence. The Sports Rorts review was released to me in November 2022.
A Perfect Slime: Scott Morrison’s slippery Sports Rorts report just the fix for Bridget McKenzie
High public interest
When the nuclear waste review was completed in November 2023 and sent to Defence Minister Richard Marles with a bureaucratic proposal, the review was included as an attachment to a submission to the National Security Committee (NSC) of the Cabinet.
In the brief that recommended it be attached to an NSC submission Admiral Jonathon Mead warned Marles that the report would be of high public interest. The bureaucrats in the Australian Submarine Agency were clearly worried about public reactions if the review were ever released, so they belatedly wanted it shrouded in Cabinet secrecy.
Admiral Mead’s Advice to Defence Minister Marles (Source: ASA)
Minister Marles obliged their request and agreed to take the review to Cabinet, as an attachment to a Cabinet submission.
I guess it’s a good thing that Minister Marles recommended it be taken to NSC.
In law, the time of deciding that an attachment is for Cabinet is the moment it is brought into existence, otherwise it is not a Cabinet document. Britten-Jones decided the nuclear waste review was brought into existence for the dominant purpose of submission to Cabinet because Ms Kelton deposed that this was her plan.
A waste of money
The contract for SG Advice to produce the report was $360,000. Four Agencies were involved in compiling the report: ANSTO, ARWA, Geoscience Australia, and the Australian Submarine Agency. The work was conducted over nine months. This document is a million-dollar document.
The nuclear waste review was described by Ms Kelton as a “significant piece of policy advice and [t]he subject matter for the Review report remains current and relevant to forward Government decision-making.”
Legally, at least for now, the report is a Cabinet document.
But the Cabinet Handbook states Cabinet documents are considered to be the property of the Government of the day. They are not departmental records. As such they must be held separately from other working documents of government administration.
That means, come May 3, if Peter Dutton gets elected, this work will not be available to the Australian Submarine Agency or other Government Departments. At that point the review will be locked away at the National Archives of Australia, unavailable until at least 2044.
So as soon as the Government changes, sooner or later, it will be a case of “start again”.
Who in their right mind would nominate that a significant piece of work should be a cabinet document? It’s a costly move. But then again, the Australian Submarine Agency did decide to give the United States $4.7B to upgrade their shipyards with no clawback if those same shipyards don’t ever deliver us a submarine. Before that, the Defence Department spent $4B not buying French submarines.
It’s stuff you wouldn’t normally read about, except here at MWM.
An appeal of the decision to the Federal Court is being considered.
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 running for the Senate on the Lambie Network ticket next year - www.transparencywarrior.com.au.