The role of federal attorney general is a uniquely powerful position, one that is supposed to sit, unblemished, above party political wrangling and the reach of vested interests. Yet the Coalition’s Christian Porter in his role as federal attorney general has demonstrated a disturbing acquiescence to powerful corporate interests. It should come as no surprise that Porter has proposed such a feather duster of a national anti-corruption commission.
There was his “brazen attack on Parliament and the public interest” by censoring key parts of the auditor general’s report into defence’s procurement of the Hawkei vehicle, following a request to do so from multinational weapons maker Thales, the manufacturer of the vehicle.
The parliamentary committee that oversees the auditor general was so concerned by Porter’s irregular use of his special powers to inhibit transparency it launched an inquiry.
There’s his breach of the law, three times, by failing to publish the required annual reports documenting his use of secret national security (NSI) orders for three years in a row, until this failure was revealed on the ABC’s Q&A by Nick Xenophon.
Attorney General Christian Porter breaches law over three years, claims it was a mistake
And there’s his extraordinary push for a secret trial of Bernard Collaery and Witness K, described by lawyers as the behaviour of a tinpot dictatorship.
Coalition’s push for secret trials: behaviour of a tin-pot dictatorship
Evidence of the need for a national anti-corruption commission mounts daily. The widespread ‘culture of cosiness’ between government and military industrial companies is just one strand.
‘Culture of Cosiness’: colossal conflicts of interest in Defence spending blitz
While part 2 of this story will investigate the serious concerns about the Thales/Hawkei procurement process, along with potential fraud by Thales and arms maker BAE Systems in a separate arena, this article focuses on Christian Porter’s role and the lengths he went to in order to protect Thales.
Porter censors Australian National Audit Office
The Australian National Audit Office (ANAO), in its 2018 report on the Hawkei procurement, noted the “extensive industry lobbying” undertaken by Thales to win the contract.
During its audit, the ANAO engaged with the Defence Department in line with its usual procedure to ensure there was no breach of national security in the material being included. It showed the department its draft reports for comment, and made adjustments as discussed and agreed.
Given Thales’ interest in the report’s content, the ANAO also provided Thales with an extract from the proposed public report. Thales was not pleased with the text and asked for certain sections to be cut. The ANAO refused.
Thales upped the ante considerably in early January 2018 by writing to attorney general Christian Porter requesting that he take the very unusual step of using his power to issue a certificate preventing publication of the information to which Thales objected. Thales stated its reason as being that, in its view, the report unfairly prejudiced its commercial interests.
A few weeks later, Thales piled on more pressure by also taking legal action against the auditor general in the Federal Court.
The auditor general, Grant Hehir, advised Porter that the ANAO report was required to be tabled in parliament as soon as possible after the audit was completed. Porter told Hehir he would make a decision without unreasonable delay, but then took six months to do so. Meanwhile, the procurement process for the Hawkei continued.
This six-month delay forced the ANAO to continue its audit process, and update its report before it could be tabled, costing taxpayers more money, on top of the $223,000 the ANAO had to spend from its overstretched budget fending off the Thales court action.
Porter eventually issued the certificate as Thales requested, and Thales dropped its federal court action.
Porter defied 100 years of best practice
The auditor general is Parliament’s principal officer of accountability and transparency. The decision by Christian Porter to prevent the auditor general from making public key sections of his audit report defied more than a century of public audit practice and sent ripples of alarm through the parliament, the public service, academia, and the wider community.
“Gagged: a brazen attack on Parliament and the public interest,” was the Canberra Times headline on a column by the ANU’s Emeritus Professor at the Crawford school of public policy, Richard Mulgan. In the column, Mulgan wrote:
“The activation of a dormant statutory mechanism to silence an auditor-general’s capacity to scrutinise a private contractor is an unwelcome extension of the Executive’s avoidance of accountability (my italics).”
On top of all that, in August 2018 Thales asked Christian Porter for a second certificate on a different section of the report. To avoid further delays, the auditor general decided to remove the section in question, saying it was not material to the report.
Senator Rex Patrick has waged an ongoing battle to get the unredacted report released via Freedom of Information. His quest has reached the Administrative Appeals Tribunal and continues. As Senator Patrick noted:
“The lengths the Morrison government appears willing to go, to hide embarrassing information knows no boundaries.”
‘No limits to what Coalition will do to hide embarrassing information’
Parliamentary inquiry examined the use of the certificate
When Thales asked Porter to issue the certificate it cited only the prejudice to its commercial interests as justification.
In making his decision on whether to issue the certificate, Porter requested advice from the auditor general and the defence ministers (and the defence ministers in turn requested advice from the Defence Department).
With no public explanation, Porter added a second reason to that of Thales’ commercial interests being prejudiced, claiming that the security, defence or international relations of the Commonwealth were also prejudiced by sections of the report.
In response to such an irregular use of the attorney general’s special powers, particularly his inexplicable use of national security as a justification, the Joint Committee of Public Accounts and Audit, which oversees the ANAO, launched a parliamentary inquiry.
In his submission to the inquiry, the auditor general made various pointed suggestions, one of which was that the attorney general should be required to provide substantive reasons when a decision to issue a certificate is made.
Porter sets ‘appalling precedent’
Julian Hill, deputy chair of the parliamentary committee, said that any suggestion that the cloak of national security may have been used as a protective cover for the commercial interests of Thales “is appalling from the point of view of the parliament and sets an absolutely unsustainable precedent”.
In the wake of the Thales certificate, the auditor general noted that two other corporations had already indicated they were considering requesting the attorney general to issue a certificate.
The committee said it was “extremely concerned” that the Thales case would set a precedent.
The auditor general Grant Hehir said he had addressed security concerns as part of the audit process by consulting closely with Defence. At the inquiry, he said Defence had not raised any outstanding national security concerns with him about the report in the three months since the certificate was issued.
The committee recommended that several issues raised by the auditor general in his submission be referred for further consideration to the next periodic review of the Auditor General Act. This review has commenced. Members of the public have until 30 November to make a submission (here).