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Introduction
Background to the inquiry
In late
February 2005, Turkish contractors began work widening parts of the coastal
road at ANZAC Cove and constructing two car parks. On 2 March, Turkish
authorities halted the work following accounts in the Turkish and Australian
media that the site was being damaged. In particular, it was alleged that
fragments of human bone had been uncovered by the roadworks. On 4 March, excavation
work on the road resumed and was completed on 14 March. The widening of the
coastal road and the first layer of asphalt was completed on 22 April 2005, in time for
the ANZAC Day commemorations. Further work is planned at the site, including a
rock wall along parts of the coastal road to protect against further erosion,
and repair of the inland road from Chunuk Bair to Lone
Pine.
The inquiry
was established following the Senate's approval of an ALP motion inquiring into
the role of Australian ministers and officials in the construction work to date,
and the heritage protection of ANZAC Cove by way of planning and research. It
followed several media releases and questions to government ministers in
parliament from Labor Party members and senators. The opposition accused the
government of complacency in allowing the construction to proceed without a
proper heritage evaluation of the site. It also claimed that the Australian
Government was complicit in the damage given the request from the then
Veterans' Affairs Minister in August 2004 seeking road upgrades.
Conduct of the inquiry
Submissions and hearing
The Committee
advertised the inquiry on 25 May and 8 June 2005 in The
Australian and on the Senate website. Interested persons were invited to
lodge submissions by 10 June 2005, although
the Committee agreed to accept some submissions after that date. The Committee
received 15 submissions from various individuals, private and non-government
organisations and government departments.
On 17 June 2005, the
Committee met in Canberra to hear
evidence from Mr William Sellars, the
Department of Veterans' Affairs and the Office of Australian War Graves, the
Department of Foreign Affairs and Trade, the Department of the Environment and
Heritage and the Department of the Prime Minister and Cabinet. Mr Sellars gave his evidence
to the Committee via teleconference from his home in Eceabat on the Gallipoli Peninsula. It was Mr Sellars' newspaper articles
that gave first publicity in Australia to the
alleged damage caused by the roadworks.
Procedural issue – non disclosure
of government legal advice
The Committee wishes to draw the Senate's attention to
a serious procedural issue it encountered during the course of the inquiry. The
matter concerns a refusal to provide the inquiry with legal advice held by the
government.
At the inquiry hearing on 17 June, the Department of
Foreign Affairs and Trade took on notice two requests for departmental advice on
(i) the application of the Treaty of Lausanne and (ii) the definition of 'free
access' under the terms of the treaty. (The relevance of the requested
information to the inquiry is discussed in Chapter 1.)
To the Committee's surprise, these requests for
seemingly innocuous information were refused by the department and minister. In
the first instance, the department refused claiming that under standing order
73 it was not in a position to table legal advice to the inquiry. As the Clerk
of the Senate advised, standing order 73 applies only to questions put at
question time in the Senate and is self-evidently not related to the work of
committees. The Clerk clarified the matter further, noting that the order
refers to legal opinion, not to legal advice as the department suggested.
He observed that standing order 73 'does not prevent a question which asks for
the tabling of a copy of legal advice in the possession of the government'.[1]
Moreover, the Clerk's advice indicated that government
legal advice is often provided to parliamentary committees. He stated:
Questions
at committee hearings and requests by committees frequently ask for copies of
legal advices available to government, and they are frequently provided, unless
the responsible minister thinks that there is some public interest ground for a
claim that the advice should not be provided, for example, that disclosure of
the advice would prejudice legal proceedings or the Commonwealth’s position in
legal proceedings.[2]
The Committee referred the Clerk's advice to the
department, asking it to reconsider the request for the legal advice. It also
reminded DFAT that if the department believed there was a public interest
ground for a claim that the information should not be disclosed, the matter
should be referred to the minister for a ministerial response. This reflects
Senate procedures and government guidelines which prescribe that public
interest claims should be made by ministers.
On 14 July, the department, writing apparently on the
minister's behalf, refused again to provide the legal advices. This second
refusal was based, however, on a new ground, as follows:
The
Minister for Foreign Affairs has decided that this department should decline
the committee's request to provide the advice, on the grounds that it has been
a longstanding practice accepted by successive Australian governments not to
disclose legal advice which has been provided to government, unless there are
compelling reasons to do so in a particular case.[3]
The Committee has a number of concerns about the unusual
features of the argument advanced above by the minister and department. First, it
is a principle of open government that the government must point to 'compelling
reasons' not to disclose information,
rather than the other way around. Second, in refusing to provide the information
the minister did not make a claim on the usual ground of public interest
immunity but referred instead to 'longstanding practice'. There are, however,
numerous precedents for governments disclosing legal advice in a manner
contrary to that claimed above. As advice from the Clerk states:
As
for the alleged “longstanding practice”, it is surprising that there has been
such a practice but that it has not been heard of hitherto. I know of no
previous occasion of any government stating that legal advice would not be
disclosed “unless there are compelling reasons to do so in a particular case”.
There have been many instances of governments disclosing legal advice without
any indication that there were any “compelling reasons to do so”, and when the
only reason for doing so appeared to be that the advice supported a case being
made out by government at the time. The statement in the letter therefore
appears to be a completely new declaration in relation to the disclosure of
legal advice.[4]
As a case in point, on 18 March 2003 the
government tabled legal advice in the Senate relating to the use of force
against Iraq.[5] Senior legal
officers in the Attorney-General's Department and the Department of Foreign
Affairs and Trade had prepared the advice. No compelling reasons for tabling it
were provided. Indeed, the fact that the government waited for a request before
tabling the advice suggests the absence of compelling reasons to do so in this
case.
The Committee is particularly troubled by the
implications that this refusal has for the transparency and scrutiny of
government. If, as the Clerk suggests, this matter heralds a 'new declaration'
in relation to the disclosure of legal advice, then it amounts to throwing a
veil of secrecy over a major category of information held by the
government. It would constitute a retrograde step for
open government. It would also represent a major barrier to the parliament's
ability to scrutinise the operation of the executive and importantly the legal
advice behind government decisions and policy.
Due to the gravity of this development, the committee
wrote to the minister asking whether this declaration represented government
policy on the disclosure of advice. After a considerable delay, the minister's
response simply reiterated his position.[6] It
completely ignored the many precedents of committees successfully requesting
legal advice provided to government in the absence of 'compelling reasons to do
so in a particular case'.
The Committee believes this development warrants airing
in the chamber to allow debate on the justification to withhold a major
category of government information. Such a unilateral measure should be subject
to debate by the Senate itself, not signalled indirectly by way of a letter to
a committee of that house.
The department's and the minister's responses and the
Clerk's advice to the Committee can be found in Appendix 3.
Structure of the report
This report
has four chapters. Chapter 1 reviews
the historical significance of the 1915 conflict and the Gallipoli Peninsula for both the
Australian and Turkish people. Chapter 2 looks at the need for an upgrade of the coastal road, and Australian officials'
knowledge of the construction work. Chapter
3 examines the allegations that the roadworks disturbed human remains and
permanently damaged the military heritage of the landscape. Chapter 4 reviews this evidence and
looks at some of the current initiatives by Turkish and Australian authorities
to preserve the ANZAC site.
Acknowledgements
The
Committee wishes to thank all those who assisted with the inquiry. They include
those who lodged written submissions and the Australian Government officials
who gave evidence at the June
hearing. The Committee is particularly grateful to Mr
Sellars
for his willingness to give evidence at the hearing at such a late hour in Turkey.
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