Australia's Department of Home Affairs has been ordered to release documents which will reveal if Australian Border Force commissioner Roman Quaedvlieg disclosed his alleged romantic relationship with a staff member to home affairs minister Peter Dutton.
The embattled senior public servant has received close to $500,000 during his time on forced leave since May 2017 while an investigation occurs into his conduct. Allegations have surfaced that Quaedvlieg was in a relationship with a woman who subsequently gained a job as a passport scanner within the ABF. The Australian Commission for Law Enforcement Integrity (ACLEI) was asked to conduct an investigation into the matter.
BuzzFeed News sought access to Quaedvlieg's list of personal and professional disclosures. Under the Australian Border Force Act the commissioner must disclose any "direct or indirect" interests that could conflict or appear to conflict with his role as the ABF commissioner to the home affairs minister. The list is effectively an internal version of the pecuniary interest registers publicly available for political figures.
The department's decision-maker Natasha Boyce-Bacon initially refused to confirm or deny the existence of any documents about Quaedvlieg's disclosures in July 2017, claiming that it would interfere with an ongoing investigation.
The decision was particularly unusual because just months earlier the department had issued a decision to BuzzFeed News that revealed Quaedvlieg had made no internal disclosures up until September 2016 of any direct or indirect pecuniary interests.
The department persisted in refusing to confirm the existence of the documents in submissions to the Office of the Australian Information Commissioner.
"The department submits that in relation to the application of section 37(1) in this request that it is a matter of public record that the Commissioner of the Australian Border Force is subject to an investigation by an external agency. That investigation remains ongoing," a departmental officer wrote in January 2018 to the Office of the Australian Information Commissioner.
"The department considers due to the sensitivities around this matter and the fact that this investigation is ongoing, that to disclose any information in relation to that ongoing investigation would, or could reasonably be expected to, prejudice the conduct of an investigation of a breach, or possible breach, of the law … or prejudice the enforcement or proper administration of the law in a particular instance."
But it emerged in Senate estimates this week that this claim made by the department was incorrect; ACLEI completed its investigation in the third quarter of 2017. A separate code of conduct investigation, distinct from the law enforcement watchdog's deliberations, was also undertaken by the Department of Prime Minister and Cabinet and handed to the attorney-general Christian Porter. The decision on Quaedvlieg's future now appears to lie with Porter.
The Australian information commissioner Timothy Pilgrim ruled in his decision that the department had failed to satisfy his office that the claim to exempt the documents about Quaedvlieg's interests should succeed.
"On the basis of the information provided by the department, I am not satisfied that the department’s response in neither confirming nor denying the existence of documents sought in this case is justified," Pilgrim wrote.
Separate documents obtained by BuzzFeed News also reveal that Quaedvlieg's chief of staff was consulted on the decision to refuse to confirm or deny access to the documents.
A freedom of information officer in the department wrote to Quaedvlieg's chief of staff: "Further to our meeting on Friday, just wanted to check in to see whether you had had an opportunity to consider the below request, and whether any documents exist that need to be considered under the provisions of the FOI Act".
The chief of staff responded: "Can you pls ring me when free?".
Further email correspondence reveal the frustration of officers in the freedom of information division, after Quaedvlieg's chief of staff failed to respond to their requests.
The officer later wrote that BuzzFeed News was entitled to seek review of the decision before the information commissioner and that "any such request for information commissioner review would result in additional external scrutiny in relation to this matter".
A timeline of the events leading up to the request show that the officer met with Quaedvlieg's chief of staff, who "indicated that the FOI decision maker should probably come from either the Executive Division or the Integrity Branch of ISA Division." The officer said that they agreed with the assessment.
Almost a month later, Quaedvlieg's chief of staff still failed to confirm whether any documents existed.
"On 26 June 2017, I sent a further email to... [Quaedvlieg's chief of staff] seeking advice regarding the existence of any relevant documents," they wrote. "To date, no advice as been received as to whether any documents that would be relevant to this request exist."
The protracted timeframe for the investigation into Quaedvlieg has caused considerable disquiet across the government.
A former senior legal officer for the immigration department told ABC 730 on Wednesday that the organisation was in crisis, and that the agency was a "shambles".
The prime minister Malcolm Turnbull has also expressed his dismay at the length of the investigation.
"I’ve got no doubt that there were reasons for that that obviously we’d prefer these things to be dealt with more swiftly, but it is a public service process and you can understand the importance of that and due process has to be accorded," Turnbull said on Wednesday.
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