The new Administrative Review Tribunal (ART) just ruled the $2B, no $6B, no $12B Snowy 2.0 project immune from public scrutiny. The decision paves the way for secrecy over Peter Dutton’s nuclear ambitions. Rex Patrick reports.

In April 2023, I made a Freedom of Information (FOI) application for access to Snowy Hydro Limited project reports about Snowy 2.0 pumped storage power scheme to the Minister of Climate Change and Energy, Chris Bowen. I also asked for the briefs on Snowy 2.0 prepared by the Department of Climate Change, Energy, the Environment and Water (DCCEEW) for the Minister.

Suspecting things were off the rails, I wanted to see what Snowy Hydro was saying to the DCCEEW in relation to Snowy 2.0’s progress, or lack thereof, and what DCCEEW was then saying to Minister Chris Bowen.

In August 2023 the Government announced a Snowy 2.0 ‘reset’; a marketing label for a massive cost blowout and schedule delay. That caused me to made a further request for the Snowy Hydro Corporate Plan update sent to Bowen and Finance Minister Katy Gallagher to convince them to back the project cost doubling from $6B to $12B.

Dear Ministers – why do costs and timelines for Snowy 2.0 keep shifting yet are so readily approved?

 

Access to the project reports and ministerial briefs was flatly refused and so I appealed the matter to the Administrative Appeals Tribunal, now repackaged by Attorney-General Mark Dreyfus as the Administrative Review Tribunal (ART).

Tribunal rejects transparency

In a decision made by Deputy President Peter Britton-Jones, the Tribunal has affirmed the access refusal decisions, effectively shutting down any FOI scrutiny of Snowy 2.0. This mega-project, which has blown out by $10B, is now shrouded in secrecy, blocking the gaze of members of the public, who are paying for the project.

The ART decision has blown a huge hole in government transparency and accountability because it creates a model that could, and almost certainly will, be used to exempt Opposition Leader Peter Dutton’s $331B nuclear power program from any future public scrutiny. It’s a secrecy barn door that’s big enough to drive a nuclear reactor through.

Protecting business information

How did this happen? 

The FOI Act has some reasonable protections in it to ensure sensitive business information is protected from release. 

Section 47 of the FOI Act protects trade secrets or commercially valuable information from being disclosed; a company’s ‘11 secret herbs and spices’ stays just that, secret. No other consideration; it’s a full stop exemption from the requirement to disclose.

Section 47G of the FOI Act protects more general business information which, if released, could adversely affect the business in some way. But this particular disclosure exemption clause is conditional on whether the disclosure would be contrary the public interest.

And that’s fair enough – when a company starts taking money from the public for public purposes, if there’s public interest in disclosing the information (like project cost and schedule blowouts), that just sits as a cost of doing business with the Government.

These are important provisions in our FOI law. Last year eighty-three thousand businesses provided their services or products in exchange for $99.6B of public money.

Removing the public interest

There’s another FOI exemption, Section 45, inserted into Act to prevent a “breach of confidence”; that is a promise to keep information confidential – like Aboriginal tribal secrets provided to government in native title matters; artistic assessments by experts of works of art under consideration for purchase – things that need confidentiality but are not business information.

That’s how the Section 45 exemption was presented to the Parliament way back in 1982 when our FOI law was first debated and legislated. In past decisions of the Tribunal Deputy President Britten-Jones has decided not to give that presentation any weight. Instead, Section 45 is interpreted as an unbreakable secrecy clause whenever government and a business agree that it should apply to information that the business has provided to government.

The end result is that now, despite the Parliament determining that business information should be disclosed if that disclosure is not contrary to the public interest, that legislated provision should not be honoured.

Section 45 is, as a result of past Tribunal decisions, the ‘go to’ exemption from departments trying to protect their projects from any scrutiny.

Quacking like a duck

The only reason I actually challenged DCCEEW and the Minister’s FOI decision in this instance is because there’s a carve out in the FOI Act that says Section 45 does not apply if the disclosure of the document would constitute a ‘breach of confidence’ owed to the Commonwealth.

So, one question before the Tribunal was, is Snowy Hydro ‘the Commonwealth’?

To me, the answer was clear. 

While Snowy Hydro is a distinct legal entity, it is an 100% government-owned corporation, and is largely funded by the public (the Snowy 2.0 ‘basket case’ project is funded by the taxpayer to the tune of $7B and the rest of the money comes from electricity customers – you). 

Snowy Hydro has its board appointed by shareholder ministers and remunerated in accordance with a determination of the Commonwealth’s Remuneration Tribunal.

Snowy Hydro is subject to control by the Commonwealth, is obliged to surrender information (unfettered by any confidentiality obligations) requested by a shareholder minister or the Auditor-General  or the Senate.

I summarised this legal situation in my submissions to the Tribunal, stating, “If it walks like a duck, looks like a duck and quacks like a duck – it’s a duck!”

The lawyers arguing the government’s case insisted none of that mattered. It might look like a duck, it might even be a government duck but it somehow wasn’t a Commonwealth duck.

Britton-Jones decided it was an elusive night owl, declaring that Snowy Hydro Limited is not the Commonwealth.

Dutton’s Nuclear Power Limited

If the ART decision stands, Snowy Hydro will be effectively excluded from FOI scrutiny. That means an impenetrable wall of secrecy, barring investigation of this government owned and controlled company’s mismanagement of the Snowy 2.0 project and its huge cost to taxpayers.  

But that may well be only the beginning of things.

The pieces are all in place for the Coalition’s nuclear power plans to be shrouded in secrecy – thanks in large measure to arguments presented by the Albanese government’s lawyers.

That’s right, Minister Bowen’s legal team has opened the nuclear barn door for Peter Dutton.

Modular Reactors. Peter Dutton hasn’t done his nuclear homework

 

Here’s how Dutton will do it. He just has to follow the Snowy Hydro model and he can ensure than no project reports will ever make it into the hands of the public. The steps are as follows:

1. Legislate to set up ‘Nuclear Power Limited’ by way of statute – the ‘Nuclear Power Limited’ Act – with two Ministers to be shareholders in behalf of government.
2. Include the following words in the Act – “‘Nuclear Power Limited’ is not, and does not represent, the Crown”.
3. Subject ‘Nuclear Power limited’ to a policy requirement to report project status to the shareholder ministers (so they at least know what’s going on).
4. Enter into an agreement between Nuclear Power Limited and the government that states “each party agrees to keep the confidential Information confidential and not to disclose it to anyone without the consent of the other party” provided the information is marked as “confidential” (the actual confidentiality of the information does not matter – the key is that the pages are marked “confidential”).

Boom! Secrecy heaven.

Financial meltdowns can be secret

Nuclear Power Limited will be Snowy Hydro Limited on radioactive steroids. If the similar magnitude $2B to $12 billion blowout to Snowy 2.0 were to occur with Dutton’s (already understated) $331B Nuclear Power Program, the blowout could amount to trillions of public money burned up building reactors that may never be economically viable.

In that regard, ART Deputy President Britten-Jones may have made the most dangerous decision ever made by an administrative review body (even without reference to Dutton’s plans, it casts a secrecy blanket over $100B of annual government procurement).

As such, I’ve put my hand into my pocket and spent $6K initiating a Federal Court Appeal. This secrecy decision can’t be allowed to stand.

And in the meanwhile, we can all just wonder how many more billions Snowy 2.0 will cost us.

The LNP’s nuclear policy is working just fine

This post was originally published on Michael West.