Downer's role in the FBI's Russia hacking probe to remain secret
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Downer's role in the FBI's Russia hacking probe to remain secret

The precise details of Alexander Downer's role triggering the FBI probe into alleged dealings between Russia and Donald Trump's 2016 presidential campaign team will remain shrouded in secrecy, with the Australian government refusing to “neither confirm nor deny” the existence of diplomatic cables that likely cast light on Mr Downer's role sparking the inquiry.

Mr Downer, Australia’s high commissioner to the United Kingdom, became a key figure regarding the question of how the Trump-Russia investigation began, after details emerged of his London bar room chat with a young Trump campaign aide, George Papadopoulos.

A night out for High Commissioner to London Alexander Downer helped prompt the Trump-Russia investigation.

A night out for High Commissioner to London Alexander Downer helped prompt the Trump-Russia investigation.

Photo: AAP

During their May 2016 conversation, Mr Downer was told that Russia had a dirt file on Hilary Clinton, including hacked Democratic Party emails.

But Mr Downer, the foreign affairs minister in the Howard government, is understood to have taken several weeks to officially relay Mr Papadopoulos’ information to Canberra via a diplomatic cable.

The reason for his delay is not known. However, it is possible Mr Downer only realised the significance of Mr Papadopoulos’ Russian claims after Wikileaks released hacked Democrat emails that embarrassed the Clinton campaign in late July, 2016.

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A de-classified US Congress committee minority report shows the FBI began its counter intelligence investigation into Russian influence on July 31, 2016 after it received specific information relating to Mr Papadopoulos's hacking claims from an unidentified source.

George Papadopoulos, a former foreign policy adviser to US president Donald Trump.

George Papadopoulos, a former foreign policy adviser to US president Donald Trump.

Photo: Supplied

The Australian government has not disputed the widespread reporting of Australia’s role in warning US authorities about Mr Papadopoulos’ information.

But the government’s response to a Freedom of Information request from the office of Centre Alliance (formerly Team Xenophon) senator Rex Patrick, and to additional questions in senate estimates hearings, demonstrates Canberra’s extreme sensitivity on a matter that threatens to tear apart American politics.

The Department of Foreign Affairs and Trade told Senator Patrick’s office that it could “neither confirm nor deny” the existence of diplomatic cable traffic between Canberra and Australian missions in London and Washington in relation to “George Papadopoulos”.

DFAT has also refused to answer any questions raised at a senate estimates hearing about Mr Downer's role in the affair because it was not “in the national interest to engage on this matter”.

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Senator Patrick was attempting to establish a precise timeline of Australian involvement in the Trump-Russia controversy by seeking Australian diplomatic cable traffic using the Freedom of Information Act and the senate estimates process.

While lawful, it is rare for a government department to respond to a FOI request by refusing to “neither confirm nor deny” the existence of documents.

In almost all cases-- and even when access to documents is being denied in full-- an applicant is given a schedule of relevant documents uncovered by their FOI request.

The schedule includes useful information such as the dates the documents were created, the identity of who authored them and who received them.

But in this case, DFAT’s decision maker, Greg Wilcock, the acting first assistant secretary of the United States and Indo-Pacific Strategy Division, invoked section 25 of the FOI Act that permits the government to refuse to confirm or deny the existence of document on the grounds of national security, law enforcement and public safety.

In response to Senator Patrick’s senate estimates questions,  DFAT only provided a short statement saying, "These questions relate to ongoing and high profile investigations in the United States.

"It is vital we do not prejudice or be seen to prejudice those investigations. They also relate to potentially sensitive matters in our bilateral relationship with the United States. For those reasons, the Department does not believe that it is in the national interest to engage in the matter.”

Former federal Information Commissioner and administrative law professor John McMillan said the failure to acknowledge even the mere existence of any documents appeared to be based on flimsy grounds.

"It's important to state this is not about releasing what was actually said at a meeting with Mr Downer and a well known public figure [Mr Papadopoulos]. The refusal involves declining to say if a diplomatic cable was ever even sent.  It is inherently implausible that the mere existence of a cable relating to an internationally known figure could be exempt."

Sydney lawyer and FOI expert, Peter Timmins, said he could not recall many instances of a government using section 25 of the FOI Act to refuse to neither confirm nor deny the existence of a document.

"What they would be trying to argue is that by actually releasing information to say they have such documents would endanger national security. That sounds pretty ridiculous to me," Mr Timmins said.

"It seems a long bow designed to defer and push down the track the need to address the sensitivity of that document."

Senator Patrick said the government's response was "unacceptable and unsustainable" as more details of the investigation into Russian interference campaign emerged.

While the government's sensitivity was not surprising, Senator Patrick said the Australian and American public were entitled to know why it took two months for the Australian government to warn US authorities about Mr Papadopoulos' Russian email claims to Mr Downer.

Mr Downer has been praised by some foreign affairs experts for his handling of Mr Papadopoulos’ information, saying his decision to meet Mr Papadopolous and later alert the US via Australian intelligence officials was appropriate. Mr Downer has declined to publicly comment about the matter.

Special prosecutor Robert Mueller has so far charged four members of the Trump 2016 campaign team, including Mr Papadopoulos who has admitted to lying to investigators and is now co-operating as a witness.

Nick McKenzie is a leading investigative journalist. He's won Australia's top journalism award, the Walkley, seven times and covers politics, business, foreign affairs and defence, human rights issues, the criminal justice system and social affairs.