Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

I am rising to speak on the matter of public importance, which is the failure of the government to provide the Cole commission of inquiry with terms of reference which would empower it to investigate and make findings about whether ministers have properly discharged their duties under Australian law to enforce US sanctions against Iraq. That is the thing that is missing from the current terms of reference of the inquiry. The government, despite all their huff and puff, have not been able to argue against that proposition. What they have done is to put up a smokescreen. What the opposition has done is to obtain a legal opinion from an eminent senior counsel, Bret Walker. At paragraph 18 he says:

I advise that the royal commission, as presently restricted by its terms of reference, does not have full power to investigate whether there has been any relevant wrongdoing on the part of the Commonwealth or its officers.

That comes at the end of an extensive legal opinion that the opposition forwarded to Commissioner Cole together with a submission. That was by way of a letter from the member for Griffith dated 10 March 2006. The member for Griffith respectfully submitted that there should be an expansion of the terms of reference.

But the real cruncher came back in a letter from the inquiry, dated 13 March 2006, from Glenn Owbridge, solicitor assisting. He says:

The Commissioner always values and respects the opinions of Mr Walker and, indeed, his submissions.

He is not alone. Mr Walker is well regarded by the High Court and every court in which he appears. His opinions are valued and he has a high success rate as well. He then goes on to say in the letter:

As Mr Walker correctly states in his opinion, it is not the function of a commissioner to determine his terms of reference. Seeking amendment to clarify terms of reference, or to address peripheral and anomalous circumstances which arise during the course of an inquiry may be regarded as appropriate conduct by a commissioner.

And that has been done once already. He then goes on to say:

However, it would not be appropriate for a commissioner to seek amendment of the terms of reference to address a matter ... different to that in the existing terms of reference.

That is where the ministerial stuff comes in. He highlights that. He continues:

The suggestion, implicit and perhaps explicit in the opinion and submission forwarded by you, that the commissioner should seek amendments to the terms of reference to enable him to determine whether Australia has breached its international obligations, or a Minister has breached obligations imposed upon him by Australian regulation falls, with respect, within the latter category.

So what the commission is saying, in effect, is that examining ministers’ conduct does not fall within the current terms of reference or in the category of the commissioner applying for an expansion of those terms of reference. The government knows this and it has been using weasel words to basically protect its ministers from the commission. That is what this is all about. That is why, in many respects, this is a deficient inquiry, because there is not going to be a proper examination of Minister Downer or the Minister for Trade or other people associated with this government. The commissioner said that in the letter to the honourable member for Griffith. The cat has been belled. The letter continues:

It is of course open to the executive government to change the terms of reference.

Why doesn’t this Prime Minister expand the terms of reference or seek an extension? Because he knows that what that will do is show up his ministers who, as it is with the limited terms of reference of the inquiry, are being exposed so much that the editorial in today’s Australian states:

The wheat-for-weapons scandal has claimed its first scalp—Mr Downer’s credibility is crippled.

So it is quite wrong for the government to say that if the commissioner wants an expansion of his terms of reference he will ask for it and the government will respond. That means that, if it is about ministers or other people, then it will be recommended. The commissioner, in his letter to the member for Griffith, has basically ruled that out as something coming from him, and the government have not been able to refute that. Instead they are using weasel words. The only thing the commissioner will seek an extension on, frankly, is the terms of the reference as they deal with ancillary matters. He has already done that in relation to the so-called Tigris matter. That is not good enough for the Australian people. The Australian people deserve better. They deserve to see their minister front the inquiry. The Minister for Foreign Affairs and the Minister for Trade should front the inquiry with expanded terms of reference. The government can then say that they have a clean bill of health, because they do not have a clean bill of health under the current terms of reference.

The eloquent opinion in the submission of Bret Walker SC laid it all out. We have not had any rebuttal of that, because there can be no rebuttal. In his statement of 3 February, the commissioner says at paragraph 12:

The present terms of reference permit me to make findings of possible illegality only in relation to the three companies mentioned in the Volcker Report. They do not permit me to make findings of illegality against the Commonwealth or any of its officers.

There was a modest expansion of the terms of reference, but that is coming from the commissioner himself. How do you overcome that? You have to read that paragraph in conjunction with the letter to the member for Griffith to know that this commissioner will not seek an expansion of the terms of reference to look at ministers. The letter says:

... whether Australia has breached its international obligations, or a Minister has breached obligations imposed upon him by Australian regulations falls, with respect, within the latter category—

which is, in effect, not a matter for him. Mr Deputy Speaker, don’t you think that, at the same time this inquiry is taking place, those two matters are important matters that should be properly investigated if we are going to argue it is a transparent, open and all-inclusive inquiry? I think the public are entitled to know whether a minister has breached obligations imposed upon him by Australian regulations or whether Australia has breached its international obligations. That is what I think Minister Downer is frightened of with respect to appearing in front of this inquiry. That is the reality of it. That is where I think the member for Griffith has basically outed this government and the narrow terms of reference that are in place.

I say that there can be no clean bill of health for the minister or the government as a result of any findings of the Cole commission of inquiry because of the narrow construction of the terms of reference. That is not being political; that is being legal. The opposition has the legal opinion of Bret Walker SC, which has not been rebutted. Indeed, in his letter, the commissioner’s emissary, the solicitor assisting the inquiry, acknowledges the worth of anything put forward by Bret Walker SC. He is not known as someone who flies a kite or puts up an opinion for the sake of it. The government now have to come to the party. Instead of hiding behind knowing that the commissioner will not seek an expansion of the terms of reference, which we say should occur, they have to do the right thing and provide the commissioner with expanded terms of reference and give him the resources to report on those fundamental questions. I think it is important to Australia, to its people and its farmers, to know whether we have breached our international obligations and whether a minister has breached obligations imposed upon him. The foreign minister has been shown to be a fool from the diary notes that have been tabled before the commission of inquiry, but we need to go beyond that. I commend the matter of public importance to the chamber.

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