David Hawker (Speaker) Share this | Link to this | Hansard source

I have received a letter from the honourable member for Griffith proposing that a definite matter of public importance be submitted to the House for discussion, namely:

The failure of the Government to provide the Cole Commission of Inquiry with terms of reference which would empower the Commission to investigate and make findings about whether Ministers had properly discharged their duties under Australian law to enforce UN sanctions against Iraq.

I call upon those members who approve of the proposed discussion to rise in their places.

More than the number of members required by the standing orders having risen in their places—

Kevin Rudd (Griffith, Australian Labor Party, Shadow Minister for Foreign Affairs and Trade and International Security) Share this | Link to this | Hansard source

This is rightly called a matter of public importance because I can identify few greater matters of public importance now than to establish the truth as to how the Howard government allowed Australia to bankroll Saddam Hussein to the tune of $300 million for 3½ years before invading Iraq and then, incredibly, allowed this scandal to run for another 1½ years after Saddam Hussein fell. The job of this parliament is to establish the truth. What we saw today instead from the Prime Minister was dissembling, dissimulation and deceit at its worst.

This $300 million wheat for weapons scandal has three core dimensions to it. It is an exercise in gross negligence on the part of the Howard government, it is an exercise in gross cover-up on the part of the Howard government and it is an exercise which has brought about grave damage to Australia’s national interests. It is gross negligence because this government ignored some 19 warnings given to them about this scandal before the Iraq war. Then, subsequent to the Iraq war, there was the grossest form of cover-up of this scandal. Despite receiving a further nine highly explicit warnings following the invasion in March 2003, the Howard government incredibly allowed this scandal to roll on for a further year and a half. Thirdly, this $300 million wheat for weapons scandal has done grave damage to Australia’s long-term national interests, to Australia’s national security interests and to the national security interests of the United States, the United Kingdom and the state of Israel. It has also done grave damage to our economic interests, to our export interests with Iraq and beyond and to this great nation’s international standing.

Today this MPI is about the cover-up. It is about the core element of this $300 million wheat for weapons scandal. Before the war it was gross negligence but after the war it was a gross attempt at cover-up. Remember what the Prime Minister had to say about this on national television some weeks ago. He was defending some other accusation being put to him about the government’s knowledge of these matters and his defence was: ‘Kerry’—talking to Kerry O’Brien—‘that was all before the war. But when the war came the dam of information burst.’ What did he mean by that? During the invasion the intelligence community were running all across Iraq. The key Iraqi officials, including those from the Iraqi Grains Board, were captured and all of the Iraqi secret documents were taken in. They tracked down Saddam’s money trail and brought all that together and this government, in about 2003, started to get deadly worried because, frankly, it was all getting a bit hot for them as it came very close to home. That was during the course of 2003, and we already know that the cover-up set in then because it only took a few months until June 2003 before they were formally cabled by our mission in Baghdad to say that all, not some, contracts under the oil for food program had been rorted. Yet they did nothing.

That is only phase 1 of the cover-up. Phase 2 of the cover-up was in 2004-05—the Volcker inquiry. Remember our fearless Prime Minister has assured the parliament that the government gave full cooperation and full documentation to the Volcker inquiry. That was simply not true. They failed to provide DFAT’s electronic files, they failed to provide a single document from the Wheat Export Authority and they refused to allow confidential information to be passed over to Volcker. They even refused Volcker permission to interview DFAT officials. This was from a Prime Minister who was pledging full cooperation. Finally, Mr Volcker lost it. In February 2005, 12 months into his inquiry, he fronted the Australian government and said that the government’s cooperation was beyond reticent, even forbidding. But then the Prime Minister tried to cover-up the expose of the cover-up. What did the Prime Minister then do? He then, having been sprung by Mr Volcker, issued this note which he was bandying around last week saying that in fact he had instructed the government to fully cooperate. What he said some time after that was that the only people not cooperating were the AWB. It was only most recently that we found out that the government themselves were not cooperating.

But, as the time rolled by, this cover-up in relation to the Volcker inquiry just kept on keeping on to the point that, to the question asked in parliament today by the Leader of the Opposition, the Prime Minister had assured Australians and everybody that from February 2005 he was really serious for the first time and was really going to try hard to make sure that everyone cooperated—the government and the AWB. What did we find out from the evidence presented in the Cole inquiry yesterday? That his own office is coaching the AWB about how to deal with the Volcker inquiry. The evidence presented says, ‘Keep your responses narrow and technical and complain about the process.’ This cover-up in relation to Volcker continues right through to the bitter end and we still do not know exactly what this Minister for Foreign Affairs did in his dealings with Mr Volcker and his officials at the bitter end—September or October 2005, only last year. Did they try even at that last stage to have Volcker’s conclusions watered down? All of this is relevant insofar as it relates to one core theme: the government’s response is to cover up and they had much to cover up indeed. That is phase 2 of the cover-up.

Phase 3, of course, arrived with the Cole inquiry itself. Remember that the justification used by this Prime Minister today was that Cole was given limited terms of reference because the government had no adverse findings given to it by the Volcker inquiry. The Volcker inquiry had never been given any documentation by the government to cover the field, so that argument on the part of the government collapses. Notwithstanding that, the government proceeded to give these paper-thin, exceptionally narrow terms of reference to Cole. And that is where the cover-up rests today: on the exceptionally narrow rorted terms of reference given to Commissioner Cole by a Prime Minister who knows full well how much there is to be exposed in this government’s actions over the five years that this scandal ran.

The Prime Minister consistently asserts that Commissioner Cole can make findings on what ministers and the Commonwealth knew. The Prime Minister seeks to give the impression that Cole will make comprehensive findings about the competence of ministers and officials in discharging their legal functions. That is just not the case. Under his current terms of reference, Commissioner Cole can only make findings on the facts of what the Commonwealth knew to the extent that that sheds light on the criminality or otherwise of the AWB. Mr Cole’s terms of reference do not empower him to make findings on whether or not the Commonwealth, including ministers, have acted lawfully in terms of the obligations of the Commonwealth under relevant Australian domestic and international laws.

If there is any doubt about this, reference should be made to Commissioner Cole’s statement of 3 February 2006, paragraphs 6, 7 and 8. If in the process of establishing what ministers knew the Cole inquiry uncovers information suggesting that a minister, adviser or public servant breached the criminal law, it is only then that Commissioner Cole has indicated he would seek an extension of his terms of reference to deal with that breach of the criminal law. And here lies the core of the Prime Minister’s dissimulation, deception and dissembling in question time today. He constantly referred to the potential breach of the law by Australian officials and that Commissioner Cole could seek extensions of his terms of reference to cover any such breach. It is quite plain from the statement by Commissioner Cole that his reference is a completely narrow one to cover any possible breach of the criminal law—not of the civil law or of the statute which deals with the whole body of administrative obligations ministers, particularly the foreign minister, have. The core obligation which the foreign minister has, of course, is of approving each export permit for the AWB of the 41 corrupt contracts which went through to Saddam Hussein’s regime.

This Prime Minister has again deliberately narrowcast his answer in question time today to try to deceive this parliament and the Australian people about the core fact that Commissioner Cole has not foreshadowed any widening whatsoever of his powers to deal with any failure on the part of ministers to discharge their obligations under Australian domestic law and regulations—incorporating into that law Australia’s obligations to enforce UN Security Council resolutions. There is nothing in the commissioner’s powers which enables him to investigate or make findings concerning whether or not the foreign minister has exercised his obligations properly under the Customs (Prohibited Exports) Regulations, which is the critical matter of administrative law at play in this entire scandal. Furthermore, there is absolutely nothing in Commissioner Cole’s terms of reference which gives him the power to investigate and make findings about whether ministers discharged their responsibilities in a proper way to give effect to this country’s solemn obligations under international law to enforce UN sanctions against Iraq. The reason the Prime Minister, after four or five questions today, refused to answer any questions specifically about those two points is that he knows that he is fundamentally exposed. His entire stratagem at the dispatch box—his entire stratagem for the last three months—has been to pretend that these terms of reference are wider than they are, and they are not. He is exposed completely by the responses he gave in the parliament today.

The commissioner’s powers must be expanded if there is to be any proper level of accountability on these core matters. These points have been made comprehensively, concisely and professionally in legal opinions provided to us by Brett Walker SC and deal specifically with the absence of these powers within the government’s current terms of reference given to Commissioner Cole. If the Prime Minister fails to extend the terms of reference to enable the commissioner to make findings on whether or not ministers have discharged their responsibilities under Australian domestic law and regulations, the Prime Minister knows that the commissioner has no power within his current rorted, narrowcast terms of reference to make any findings whatsoever about whether these ministers have actually done their jobs, whether they have earned the money they have received and whether they have discharged the responsibilities they have as ministers of the Crown.

To allay any doubt on these matters, and in fact in seeking ourselves to ask Commissioner Cole to widen the terms of reference, we in the opposition wrote to the commissioner earlier this month. On 10 March I wrote to Commissioner Cole submitting that the commissioner seek by way of an expansion a change in the terms of reference which would give the commission the power to investigate and make findings about compliance by Australia with international obligations imposed under article 25 of the UN charter and clause 4 of UN Security Council resolution 661, as well as the performance of ministers and officials with respect to the specific obligations of the Minister for Foreign Affairs under the Customs (Prohibited Exports) Regulations 1958.

On 13 March, the commission of inquiry replied to my letter in writing. The commissioner made it abundantly clear that it was not his function to determine his terms of reference, that it would not be appropriate for him to address a matter significantly different to that in the existing terms of reference, that it would not be appropriate for the commissioner to seek amendments to the terms of reference to enable him to determine whether Australia had breached its international obligations or a minister had breached obligations imposed upon him by Australian regulations and, furthermore, that it is open to the executive government to change the terms of reference. It stated clearly in black and white that Commissioner Cole has no powers to undertake these functions.

What is the point of the commission of inquiry, which this Prime Minister talks about at the dispatch box, if it cannot come to grips with whether or not ministers have honoured their obligations to enforce UN sanctions against Iraq as required of them by Australian domestic law through the customs regulations? This is the point which this Prime Minister has specifically evaded. That is why the Leader of the Opposition asked the Prime Minister to amend the letters patent to give the commissioner those powers. This Prime Minister chose not to respond positively.

This is all part of volume 3 of this government’s strategy of cover-up when it comes to the $300 million wheat for weapons scandal. There was a cover-up in 2003 when it all started to get a bit hot, a cover-up when it came to Volcker in 2004-05 and now a cover-up under Cole whereby this Prime Minister, to take the political heat off his colleagues and this poor, pathetic form of a foreign minister, has rorted the terms of reference of this inquiry. (Time expired)

Tony Abbott (Warringah, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

Let me say of the member for Griffith what the member for Lalor says of the Leader of the Opposition—‘He’s trying.’ He is trying, but he is not succeeding. This tactic just is not working and it is not working because of the commonsense of the Australian people. The Australian people understand that the last thing this government would have been doing is, on the one hand, contemplating military action against Iraq and, on the other hand, funding the Iraqi regime. They understand because they have commonsense—which is lacking to members opposite—that there is something utterly implausible in the proposition that the opposition are putting forward.

The Australian people also understand that a distinguished judge is looking into this matter—a judge with no axe to grind, a judge with access to all the information that there is to be had—and they are quite prepared to wait for the verdict of Commissioner Cole rather than to believe the bluster that we get day in, day out from members opposite. Finally, the general public understand that deep down all of this is a smokescreen. Day in, day out, since the beginning of this year, members opposite have come into this House and talked about propriety and competence in government, yet they cannot show propriety and competence in opposition. That is their problem. If you are going to criticise the government for alleged lack of propriety and alleged incompetence, you too have to show in your own much more minor responsibilities a level of propriety and competence.

What we have seen today, in a way which I do not think has been highlighted before, is the Leader of the Opposition losing what has long been considered his best asset. He was visibly losing it in every sense at the ministerial table today. His best asset is his reputation with the Australian public for being a decent bloke. Today in question time and afterwards I heard the Leader of the Opposition calling members opposite—and this is a random selection of the abusive terminology he used—‘twit,’ ‘drop kick,’ ‘goose’ and ‘pompous ass.’ We are seeing from the Leader of the Opposition a level of viciousness to equal that of former Prime Minister Mr Keating, with the same foul temper but without the wit to express it that the former Prime Minister possessed.

In this matter of public importance we see the opposition’s obsession with AWB. The reason they are obsessed with AWB is that, as long as they have some spurious criticism of the government, it stops them criticising each other. Mr Deputy Speaker, it is not working. Even the attacks that they are attempting to mount on the government are feeding the leadership tensions inside the opposition. The member for Griffith, the gentleman opposite, claims that his forensic attacks on the government are burnishing his leadership credentials. There is not a journalist or member of parliament in this place who does not know that he is running around saying in his own way, ‘Look at me,’ as indeed is the member for Lalor, and is saying that his attacks on the government in some way demonstrate support for his embattled leader, but at the same time the member for Griffith is telling every journalist who will listen—off the record, of course—that the Leader of the Opposition has just three months to prove himself and, if he cannot lift his game within the next three months, the national Right, particularly the New South Wales Right, will get rid of him. That is what the member for Griffith is saying. I thought there was a marvellous metaphor—

Kevin Rudd (Griffith, Australian Labor Party, Shadow Minister for Foreign Affairs and Trade and International Security) Share this | Link to this | Hansard source

Mr Deputy Speaker, I rise on a point of order. I ask that the minister withdraw that remark because it is simply untrue.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

Which remark?

Kevin Rudd (Griffith, Australian Labor Party, Shadow Minister for Foreign Affairs and Trade and International Security) Share this | Link to this | Hansard source

The remark concerning briefings to journalists on my part.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Griffith knows the standing orders as well as I do. If he thinks he has been misquoted in any way, he has a right after this to make a personal explanation.

Kevin Rudd (Griffith, Australian Labor Party, Shadow Minister for Foreign Affairs and Trade and International Security) Share this | Link to this | Hansard source

Mr Deputy Speaker, I found the remarks offensive and I ask that the minister withdraw them.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

I will not ask the minister to withdraw them.

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

Mr Deputy Speaker, I rise on a point of order. Mr Deputy Speaker, perhaps you might rein in the minister so that he is relevant to the debate before the House. The comments he made are not relevant to the matter of public importance before the House.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Banks would know that an MPI is a fairly wide-ranging debate.

Kevin Rudd (Griffith, Australian Labor Party, Shadow Minister for Foreign Affairs and Trade and International Security) Share this | Link to this | Hansard source

Mr Deputy Speaker, if a member finds remarks by another member offensive, is it not the custom of this House for the Deputy Speaker or the occupant of the chair to ask the member who has made those rude remarks to withdraw them?

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

No. The member for Griffith should know that that is up to the chair.

Tony Abbott (Warringah, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

What I am attempting to do is to explain some of the context in which this matter of public importance debate has taken place. There was a marvellous metaphor for the state of the contemporary ALP today. The Leader of the Opposition did not want to wait to be run over by the proverbial bus, he went to the Belconnen bus depot; but there were just two problems—there was no-one on his bus and his bus was going nowhere. This is the absolute metaphor for the Leader of the Opposition and for the contemporary Labor Party.

What we have seen from the member for Griffith is the old ‘Either you’re a fool or a knave’ thesis. ‘The government knew that AWB was giving kickbacks and it did nothing, in which case it was corrupt,’ or, ‘It should have known, in which case it was incompetent.’ I say again: does anyone seriously believe that a government that was contemplating military action against Saddam Hussein would have knowingly funded that regime or would not have investigated any accusations that it was so doing? There is no significant evidence, despite all the bluster and bluff that we have heard over the last two months from members opposite, that the government has been either knowingly complicit in corrupt conduct or negligent in its pursuit of any such conduct.

Let us go back to the period in question. Who were the AWB’s greatest cheerleaders? None other than members opposite. They put out press releases publicly congratulating the AWB for selling wheat to Iraq. Who were the greatest critics of the sanctions regime, the breach of which they now wax so indignantly about? Members opposite. They said that the sanctions regime was killing the Iraqi people.

Let us take the precise point that the member for Griffith has alleged today. The member for Griffith alleged that there is no power, as things stand, for the Cole inquiry to inquire into misdeeds by the Commonwealth. Let me quote paragraphs 7 and 8 of Commissioner Cole’s statement issued on 3 February:

7. It necessarily follows that the knowledge of the Commonwealth of any relevant facts is a matter to be addressed by this Inquiry, and is within the existing terms of reference in the Letters Patent.

I would suggest to the member for Griffith that, rather than forming an unholy alliance with his rival, the member for Lalor, he actually listen. Instead of this odd unity ticket that we see forming now on the opposition front bench, he should listen to the words of Commissioner Cole. Why is he scared of listening to Commissioner Cole? Why does he raise his hand in horror at hearing the words of Commissioner Cole thrown back at him? The statement continues:

8. That means that this inquiry will address and make findings regarding at least the following:

a.

the role of DFAT in the process of obtaining United Nations approval of AWB wheat contracts within the United Nations Oil-for-Food Programme;

b.

the knowledge of DFAT in relation to such contracts;

c.

what AWB told the Commonwealth, and in particular DFAT, relating to the Iraqi wheat contracts; and

d.

Whether the Commonwealth, and in particular DFAT, was informed of any knowledge AWB may be found to have had, regarding payments by AWB to Alia.

So the existing terms of reference allow Commissioner Cole, should he think such findings justified, to make critical findings of the Commonwealth, its agents and its agencies. That is what is clearly apparent from the commissioner’s statement of 3 February.

As I said, members opposite know that there is no foundation whatsoever in the charge that underlies this MPI. It is a complete smokescreen to hide the rancour that exists inside the Australian Labor Party right now. We all know that they are desperately hoping that the mounting leadership challenge will go away. I quote the member for Hotham in the Weekend Australian of 11 March:

I’m not saying you can’t have factions. I’m saying you can’t have leaders as dud as the current ones that are in control.

We have the former leader of the party claiming that the current leader of the party is a dud. That was Crean on Beazley. Then we have Beazley on Crean in response.

Julia Irwin (Fowler, Australian Labor Party) Share this | Link to this | Hansard source

Mr Deputy Speaker, I rise on a point of order. It is quite obvious that the minister is not aware of what the MPI is, and I feel you should draw his attention to it.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The member for Fowler would know that the member for Griffith made a fairly wide-ranging attack on the government. I call the minister.

Tony Abbott (Warringah, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

So we had Crean attacking Beazley. Now we have the Leader of the Opposition attacking the member for Hotham. He said:

What Simon wanted was a stitch-up to prevent a challenge. He invited me to participate and I said, ‘No Simon. Trust the party. Trust the preselection process.’

Jennie George (Throsby, Australian Labor Party, Shadow Parliamentary Secretary for Environment and Heritage) Share this | Link to this | Hansard source

On a point of order, Mr Deputy Speaker, I draw your attention to the issue of relevance. The comments being made by the minister in this debate have nothing to do with the issue that was the subject of the MPI. I ask that you call him to order.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

There is no point of order. I call the minister.

Tony Abbott (Warringah, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

This MPI is plainly about covering up the tensions inside the Labor Party, because then we had the member for Hotham accusing his leader of being a liar.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

I ask the minister to withdraw that remark.

Tony Abbott (Warringah, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

For speaking untruths. I withdraw, Mr Deputy Speaker. Mr Crean told the Australian:

I never asked him for a factional stitch-up. Never. I asked him for one thing, and that’s to repeat what he said 12 months ago, that he needed my experience on the front bench.

So we had Crean on Beazley, we had Beazley on Crean and then, of course, we had Gillard on Beazley.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The minister will refer to members by their electorates.

Tony Abbott (Warringah, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

We had the member for Lalor on the Leader of the Opposition. She said:

I genuinely think Kim is trying.

You know the sense in which she said it: very trying indeed! He will not let her ask questions in the parliament. He blocks her in the tactics committee every day. Anyone who watched Australian Story the other day would know he will not even take a bit of paper from the member for Lalor. That is how much he mistrusts her.

Julia Irwin (Fowler, Australian Labor Party) Share this | Link to this | Hansard source

On a point of order, Mr Speaker, it is quite obvious again that this has nothing to do with the MPI.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

There is no point of order.

Tony Abbott (Warringah, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

Then, having had Hotham on Brand, Brand on Hotham and Lalor on Brand, we then had Brand on Lalor, speaking through his mouthpiece, his former Chief of Staff, Michael Costello, who said of the member for Lalor: ‘Her prescriptions on policy or the future of the party’—

Kevin Rudd (Griffith, Australian Labor Party, Shadow Minister for Foreign Affairs and Trade and International Security) Share this | Link to this | Hansard source

Mr Deputy Speaker, on a point of order: the minister is reducing the proceedings of this House to nothing better than farce. I would ask you to draw this minister back to a level of civility—

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

There is no point of order. The member for Griffith will resume his seat.

Tony Abbott (Warringah, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

I am not being uncivil; I am simply quoting members opposite on members opposite. That is where the lack of civility is. (Time expired)

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

Although we have seen nothing but a crude, ad hominem attack on the opposition by way of defence, this debate actually represents a significant turning point in the government’s exposition on this terrible scandal, because, for the first time, the Leader of the House has explicitly accepted that the funds that were provided through the AWB and through Alia and then derived by Saddam Hussein have actually been applied corruptly to the use of that government and directly against the interests of those who have served in the Australian and other forces that were sent to Iraq.

One of the problems we confront here is essentially a government that is narrowcasting its defence and failing to accept its responsibilities. I think it is fair to say of it, as the Bible says, that there are none so blind as he who will not see. This government has, either resolutely—through its incompetence, negligence or failure to address facts that ought to have come to its attention—or, worse, by some kind of blind-eyed acceptance of the underlying reality, participated in and permitted to occur one of the greatest scandals and acts of corruption that this country has seen since 1901, when the Federation was formed.

We turned blind eyes to what our United Nations and Canadian rapporteurs relayed to us. Can one imagine what would have been the opposition’s response had Labor held government during a period of time in which $300 million was funnelled off to Saddam Hussein and had we then made the decision, as we would have, not to participate in the conflict? It would have been seen as an act of gullibility or of fools—or, worse, as an act of treachery. Imagine how we would have responded to this had it been one of our competitors, either Canada or Russia, that had supplied the wheat to the Saddam Hussein regime and paid $300 million in kickbacks and had we faced as a consequence the prospect of increased risk to our soldiers because of their duplicity.

We learnt of the fact that the government had received warnings at an official level of such directness from so many different accounts in so many different circumstances, and yet the government purport to say, ‘We don’t wish to inquire into whether we were negligent or complicit; we simply want to look at whether the company was guilty of some criminal conduct.’ How would we have responded to that form of conduct?

The Australian today, in its editorial called ‘Credibility crippled’, said of the Minister for Foreign Affairs:

Short of a neon sign flashing “Saddam bribes hidden here” it is hard to imagine what more Mr Downer and DFAT would have needed to comprehensively investigate AWB, long before the Volcker inquiry belled the cat.

It is appropriate to reflect here on the advice that was given to the AWB and not accepted, but it is advice that the government might well have considered also from Mr Sandman, had they sought it—that is, to accept responsibility, to acknowledge mistakes, to apologise for error and to address your underlying responsibilities and not seek to evade them. Instead, what was the response that the AWB took? It was to pursue a narrowcast defence—and on whose advice?

The person on whose advice they relied is now the Director-General of the Australian Security Intelligence Organisation but was then the principal foreign affairs adviser to the Prime Minister. What that man advised, and what the course of conduct of the government undertook, was to ‘keep your response narrow and technical’. Moreover, not only has that advice been followed but that is what the government has done in the construction of the inquiry which followed. Its terms of reference have been kept narrow and technical.

What is the importance of the terms of reference? Chief Justice Young in the Equity Division of New South Wales in a recent case regarding the Police Integrity Commissioner cited Hallett’s book on royal commissions and boards of inquiry. I will take the House to that passage because it is absolutely crucial to an understanding of what is going on:

Hallett says (p52) that:

The drafting of terms of reference for an inquiry is of importance. If the terms of reference are carefully drawn, so that the main area of the investigation is precisely defined, the inquiry will benefit not only in the time taken to perform its functions, but also because the report will deal only with the central issues and not be concerned with peripheral matters.

It goes on:

An inquiry can be left floundering in a wilderness of possible avenues of investigation and be forced by constraints of time to make its own choices—

and then the important words of qualification—

which ultimately might not be in accordance with the desires of the executive which appointed it.

Most tellingly, in this House today the Prime Minister explained his reason for a refusal to expand the terms of reference by indicating it was not his desire to permit the commissioner to move away from the area they had designed so narrowly for him to inquire into—that is, the criminal conduct and any associated criminal conduct of entities or Commonwealth officers. But how narrow is that?

Let us take the scandal of the immigration department and the Rau case. Could we possibly conceive that an appropriate government response to that would be to establish the Palmer inquiry with responsibility only to look at whether some government minister or the department had committed a criminal offence, when we know that they are locking up people who suffer from mental illness? When there are scandals or corruption, for example, that we know a negligent police commissioner has permitted to grow and fester under their feet, where there are outraged community members because they know that the police have failed to follow up effectively some area of great public concern, would we satisfy ourselves to ask whether the police commissioner was guilty only of a criminal act? Or would we say, ‘Is his management capable, effective, not infected by negligence and doing all that is appropriate and necessary in the public interest?’

That is exactly what Commissioner Cole is forbidden from reporting on: forbidden from reporting on whether the government and its agencies were negligent and forbidden from reporting on whether they complied with their statutory obligations under regulations when they were required to give approvals for wheat exports. The commission is forbidden from assessing those matters and reporting its findings. The important point I make about this is that, where such terms of reference preclude such findings, they simply cannot be made, and that is the gravamen of the Shaw decision. That was the outcome of that decision, which we all know was an enormously controversial matter. It perhaps reflects no credit on the circumstances in which it arose, but the truth is that we know the consequence of narrow terms of reference, we know why the terms of reference were so narrowly cast and we know why the government so resist their expansion.

Is it possible to say, where corruption of this nature has been indicated in an area of public performance, that it is the responsibility of the opposition to make judgments, when we were relying on the advice of government about those facts, as we were on their advice on the invasion on the security background that was later proved to be an error? Negligence, incompetence and poor administration can lead Australia into making bad decisions on the safety and security of troops. The probity of any decision that is so undermined then comes into question, but it questions the probity and judgment of those who make it and those who assert it. It does not affect the credibility of the oppositions that rely on it, when they are briefed to that effect.

In conclusion, I am deeply disturbed by the sense that this government portrays that a matter of such grave importance can be swept under the carpet and not examined as to the substance, as to whether there was negligence, as to whether there was complicity and as to whether some judgments now need to be made about the administration of the department so that we do not have blind eyes turned to corruption under our noses, so we do not act in circumstances blindly in adherence, where we do not wish to see the folly or error of our own acts.

Bruce Baird (Cook, Liberal Party) Share this | Link to this | Hansard source

It is interesting to follow the member for Denison, the Minister for Health and Ageing and the member for Griffith. The member for Denison made the comment that this is an important issue. That is agreed. It is agreed that it is important we do not sweep this under the carpet. It would be an appropriate comment that nothing was being done if the government had not set up the Cole commission, with very significant powers being given to the commission. A large number of companies around the world were named in the Volcker inquiry—some 2,000 companies from 66 countries—and only two countries have set up inquiries. Australia is the only country that has set up an open inquiry. All the huff and puff and bluster that goes on about this inquiry and what the government may or may not be doing is pure rhetoric. If there was basis or substance in what Labor are saying, then you could listen to them, but what they are trying to achieve is very much a hollow argument.

The AWB issue has become for the Labor Party a magnificent obsession. We have had question after question in this House on it and, of course, we now know that some of the heavies in the Labor Party are saying, ‘Enough of the AWB, it’s not cutting through; change your focus.’ Today and yesterday we had nominal questions on IR reform and then we were back to the AWB. For example, ‘The Labor Party has let you down,’ said Barrie Cassidy on the Insiders program, and Greg Combet said:

I haven’t been very impressed with what’s been going on, I have to admit. And what I want to see in coming weeks and months all the way up to the election is everyone in the federal parliamentary Labor Party concentrating on the key priority—the interests of working people and working families in this country.

He said that Labor have been so beguiled by going down the legal route with regard to the AWB inquiry that they have lost their focus of looking after the average working man and woman in Australia. One of the reasons that we on this side of the House—the coalition—are in government is that we have looked after their interests. Labor more and more look after the chattering classes, but it is this government that is looking after the real interests of average working men and women.

In my electorate I have had one email—no letters, no phone calls—about the AWB inquiry. Why is that? Is it because they think it is not important? They are not ringing because they know there is an inquiry going on. They know that these issues are being brought forward; they know the issues are being addressed. If there were no inquiry, I am sure we would be hearing quite a lot about it. But in fact it is a very open inquiry and almost every day there is some new piece of evidence that the media manages to find that the member for Griffith and those opposite get very excited about.

We have this open inquiry. While talking to some Labor Party people in my area, they said, ‘They are wasting their time on the AWB because the inquiry is going on; it is not cutting through.’ That is why the Leader of the Opposition has to have Karim ring him up and ask these bogus questions. He knows that nobody out there is really interested in the claims that he is making. Labor’s claims are quite clear: the terms of reference of the inquiry should be widened so that any minister can be questioned about their role or their failure to take action on the allegations that have been brought up in the Volcker inquiry and the oil for food program.

Certainly it is appropriate that we look at the terms of reference, but let us particularly look at the statement made by the commissioner on 3 February. He had heard the criticisms that the terms of reference were very narrowly defined and that they restricted what the inquiry could look at and what it could not look at. It is very clear if you look at point 7 of his statement. He said:

7. It necessarily follows that the knowledge of the Commonwealth of any relevant facts is a matter to be addressed by this Inquiry, and is within the existing terms of reference in the Letters Patent.

So on a generic basis the Commonwealth is totally included in the areas of inquiry that the commissioner is looking at. That was in paragraph 7. Paragraph 8 says:

8. That means that this Inquiry will address and make findings regarding, at least, the following:

a.

the role of DFAT in the process of obtaining United Nations’ approval of AWB wheat contracts within the United Nations Oil-For-Food Programme;

b.

the knowledge of DFAT in relation to such contracts;

c.

what AWB told the Commonwealth—

and that means Commonwealth ministers—

and in particular DFAT, relating to the Iraqi wheat contracts; and

d.     whether the Commonwealth—

which means Commonwealth ministers and DFAT—

was informed of any knowledge AWB may be found to have had, regarding payments made by AWB to Alia.

Then, most significantly, because this goes to the core of what is being addressed here today in this MPI, it says in paragraph 14:

14. Accordingly, if, during the course of my inquiry, it appears to me that there might have been a breach of any Commonwealth, State or Territory law by the Commonwealth or any officer of the Commonwealth—

which clearly means any minister who sits in this front row or in the Senate—

related to the subject matter of the terms of reference, I will approach the Attorney-General seeking a widening of the terms of reference to permit me to make such a finding.

I do not know why this creates such a storm among the members opposite. I know that basically they are trying to find air time to talk about what has been found and the various issues that have been raised within the open inquiry set up by the government for all to come along to and clearly for the media to listen to. That is open. It can be changed. Any minister’s behaviour can be investigated by the Cole inquiry. That is set out in paragraph 14 of his statement, released in February. Nothing could be clearer. However, he says:

15. That position has not been reached.

It is not as if he is saying: ‘We haven’t reached it and we’re not going to. I didn’t see anything.’ He said:

The position may change as inquiries continue and evidence is called. There is thus no basis upon which, at this time, it would be appropriate for me to suggest to the Attorney-General that the terms of reference be widened to enable me to make findings regarding whether the Commonwealth, or its officers, might have breached Commonwealth, State or Territory law.

So the power is there to change the guidelines. They say they have not reached that position yet, but the position may change. If they do, they will approach the Attorney-General.

They already approached the Attorney-General earlier this year to change the terms of the inquiry, and the Attorney-General, Philip Ruddock, broadened the inquiry. He said, ‘The terms of reference variations make it very clear that he’—that is, Commissioner Cole—‘can inquire into internal investigations of the company concerning activities not specifically related to the Volcker report.’ That was in the press release of 17 March 2006, when Commissioner Cole came to the government, asked for a widening of the inquiry and clearly got it. Nothing would make all the alarm bells ring.

If the commissioner clearly found evidence—and it is available to everybody, every day, to trawl through the Cole inquiry’s evidence as it is being given, as I have noticed the member for Griffith has done in his bid for the leadership, and certainly there is a need for some leader over there—he could come forward with the evidence and say, ‘It is now time that the guidelines were widened.’ This is not the case. It is simply a blow-up to bring out the facts that they feel are important rather than being based on the legal requirement. The position can be changed. The guidelines can be changed. That position has not been reached but, if it is needed, the commissioner has made it very clear that this can happen.

We all regard this inquiry as important. That is why the government established it, that is why it is an open inquiry and that is why the commissioner has said that he is prepared to change the guidelines as required. What we have opposite is none other than a leadership stunt by the member for Griffith. (Time expired)

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The discussion has concluded.

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

I’m jumping to speak on the discussion, Mr Deputy Speaker, and the time limit hasn’t been reached.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

Sorry. I call the honourable member for Banks.

Daryl Melham (Banks, Australian Labor Party) Share this | Link to 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.

Harry Jenkins (Scullin, Australian Labor Party) Share this | Link to this | Hansard source

Order! The discussion is now concluded.