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ATTORNEY-GENERAL MUST EXPLAIN NATIONAL SECURITY ERROR TO PARLIAMENT

9 January 2021

Independent Senator Rex Patrick has called on Attorney-General Christian Porter to explain to Parliament how he completely misjudged national security and wrongly censored an Auditor’s report that was tabled in the Parliament in redacted form.

In 2018 the Attorney-General used a rarely employed power under section 37 of the Auditor-General’s Act, to censor part of the Auditor-General’s audit report on the Army’s $1.3 acquisition of the Hawkei light protected mobility vehicles from Thales Australia. At the time the Auditor-General protested, telling the Prime Minister that:

Much of the particular information I am required to omit from the public report is analysis by the Australian National Audit Office (ANAO). Further, the required omissions reach into my audit conclusion”.

“Having now obtained the full report after a long and arduous Freedom of Information battle, I am quite shocked by what the Attorney-General has censored from the Parliament and the public,” said Senator Patrick.

“What he chose to censor is criticism by the Auditor-General of the Defence Department's failure to follow proper processes to ensure taxpayer’s got value for money in a $1.3B sole source acquisition contract.”

For example, the following comment by the Auditor-General was wrongly claimed by the Attorney-General to be national security sensitive:

Defence has not clearly demonstrated that the acquisition provides value for money, as it did not undertake robust benchmarking in the context of a sole source procurement.

“This is a totally inappropriate use of power. The Attorney-General wasn't protecting national security, he was covering up bureaucratic incompetence that was the responsibility of the Ministers for Defence. It shows a complete lack of judgment, indeed an incompetence, on the part of Mr Porter when it comes to making determinations about national security.” 

Senator Patrick said, “A Deputy President of the Administrative Appeals Tribunal found last month that nothing in the report the Auditor-General produced was national security sensitive. The Department of Prime Minister and Cabinet has decided not to appeal the decision, confirming the Attorney-General’s original decision was quite wrong and unjustified.”

“In this matter the Attorney-General’s judgement was clearly unsound. He was  incapable of properly assessing national security claims”.

“This raises a most serious question - what else has the Attorney-General got wrong in the national security space?”

”Is he improperly interfering with open justice in the prosecutions in the Witness K matter, the Witness J matter and/or the David McBride case by issuing erroneous certificates?”

On 11 March 2017 the Auditor-General commenced a performance audit into the procurement of Hawkei light protected mobility vehicles from Thales Australia Limited by the Department of Defence.

On 05 January 2018, when the report was close to finalisation and parts of it had been shared with Thales, the company wrote to the Attorney-General asking him to issue a never before used section 37 certificate.

On 28 June 2018 the Attorney-General issued a certificate.

The Joint Committee on Public Accounts and Auditing conducted an inquiry into the issuing of the section 37 certificate in 2018.

After the inquiry report was tabled in the Parliament Senator Patrick sought the full audit report using FOI laws. After a two year battle with the Department of Prime Minister and Cabinet that went all the way to the AAT the document has been released to him.

“I’m just astounded at what the Attorney thought was security sensitive”, said Senator Patrick.

“I have written to the Attorney General insisting he make an explanation to the Parliament as to how he completely misjudged national security and issued a certificate under the Auditor-General’s act to censor the Auditor’s findings from the Parliament.

”He must also revoke the certificate to permit the Auditor to table his full audit report in the Parliament and lift a gag that prevents the Auditor from explaining his audit results to the Members an Senators”.

”This Government has to stop abusing executive power to prevent parliamentary scrutiny and oversight. Accountability tools do not stop Government from governing. They just hold Ministers, public officials and agencies to account for the manner of their stewardship. Accountability is central to trust in Government and is not something the Prime Minister should be afraid of.

Relevant documentation and the unredacted report can be found here.