This article is more than 1 year old

This article is more than 1 year old

The defence department has been accused of “unlawful conduct” after it wrongly withheld sensitive documents about Australia’s $50bn submarine deal with a French multinational.

The government’s massive future submarines project has been under intense scrutiny since a French arms manufacturer, DCNS, won the contract in 2016. The project has been described as the largest defence procurement in Australia’s history, but South Australian politicians feared the state’s shipbuilder, ASC, was unfairly shut out of a major role in the work, risking local jobs.

Two years ago, the former senator Nick Xenophon lodged a freedom of information request to attempt to obtain a 2015 document outlining DCNS’s plan for involving local industry.

Xenophon’s successor in parliament, the Centre Alliance senator Rex Patrick, believes the document will show DCNS, now known as Naval Group, wanted to involve Australian industry and partner with ASC in building the submarines from the start, but met resistance from the Australian government.

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The department initially said the document didn’t exist, before later identifying it but refusing to release it, prompting Patrick to turn to the office of the Australian information commissioner.

Defence argued that releasing the document in full would harm Australia’s relations with France and may breach a treaty it had with the French government requiring both nations to protect one another’s confidential information. It argued releasing information owned by the Naval Group, partly owned by the French government, would “directly contradict that expectation of confidence”.

“It is reasonable to expect the Government of the French Republic to be concerned by such a disclosure of information owned by French interests, in light of the tenor of the Treaty and the expressed wishes of Naval Group that the documents not be released,” the department argued.

But the information watchdog found otherwise. It found defence had given “inconsistent” testimony, failed to prove the documents would harm Australia-France relations, and was wrong in its decision to withhold the documents.

“Other than a mere assertion that disclosure would cause damage to the business interests of Naval Group, and that the French Government is a significant shareholder of Naval Group, the Department has not provided any further evidence to support its contention that disclosure of the relevant material would damage the international relations of the Commonwealth with the French Government,” the watchdog found.

Defence has been ordered to hand over a full copy of the the document within 28 days. Patrick said the “verdict” from the information watchdog was clear.

“The Department of Defence’s FOI division is guilty of unlawful conduct,” he told Guardian Australia. “They simply don’t apply the FOI act in accordance with the Parliament’s intent.”

It’s the second time in recent months the department has been found to have wrongly applied FOI law to withhold documents. The department wrongly kept the former navy chief’s diary secret from Patrick and was ordered to hand over the document in May. Patrick says the department’s “modus operandi” was to delay FOI requests until the information became stale and irrelevant. The future submarines request was first lodged in May 2017, and is still not fully resolved more than two years later.

“Their standard operating procedure is to initially make a number of broad and cavalier claims [for withholding the documents],” he said. “When challenged they then reduce the number of claims and bunker down for a long and protracted legal fight, engaging the Australian Government Solicitor at a cost to the taxpayer.

“They nimbly change exemption claim when they realise they are staring at a loss before the Information Commissioner or Administrative Appeals Tribunal.

“The minister needs to order a joint strike on the FOI division using ‘culture changing’ cruise missiles.”

A spokeswoman for the defence department said: “Defence is aware of the information commissioner’s decision and is considering its position.”

The department can appeal the OAIC finding to the Administrative Appeals Tribunal.

ASC is now playing a limited role in the future submarines project. In February, it announced a partnership with the Naval Group on some aspects of the project, including workforce development, workplace safety training and services, and supply chain services.