Andrew Murray (WA, Australian Democrats) Share this | Hansard source

The Royal Commissions Amendment (Records) Bill 2006 amends the Royal Commissions Act 1902 to enable regulations to facilitate the provision of custody and the use of, and access to, records of royal commissions, including those of the inquiry into certain Australian companies in relation to the United Nations oil for food program.

The main reason for this bill is to remove any argument that there might be a requirement to provide procedural fairness to persons who could be adversely affected if documents obtained by the Cole inquiry or a full royal commission were to be made available to law enforcement agencies and used for other purposes. The government asserts that providing procedural fairness in respect of the use of such documents could be very time consuming and says it is unnecessary and unmeritorious in a law enforcement context. The government therefore wants to legislate, through this bill, to clarify that royal commission records can be used for defined purposes without having to provide procedural fairness. Note the word ‘clarify’, which is meant to convey that this is already the case but needs clearer expression.

The bill allows for regulations to be made in relation to specific royal commission records in certain circumstances. This will do away with the necessity for new bills to be introduced relating to specific royal commissions.

The bill makes it clear that the protection against self-incrimination in section 6DD of the Royal Commissions Act is maintained and that legal professional privilege is not affected by any regulations that might be made under these amendments.

I am speaking to the bill for two reasons. Firstly, I sit on the Senate Scrutiny of Bills Committee, which always expresses concern about any bill that attempts to make law that negatively applies retrospectivity. Secondly, I want to take the opportunity to discuss the failure of some of the accountability mechanisms as uncovered by the Cole inquiry.

First to retrospectivity: although the government have now limited to law enforcement agencies the agencies to which the documents collected by a royal commission can be provided, they have not addressed the Scrutiny of Bills Committee’s concern regarding the retrospective application of the law. It has been made retrospective so that it can apply to the recently completed Cole commission of inquiry, but that commission can be considered to be live and still afoot because of the legal consequences flowing from it. However, because of the broad way item 3 in schedule 1 has been drafted, it actually ensures that all the amendments proposed in this bill will have retrospective effect, with no limit on the matters that may be affected by it. So the amendments open up the opportunity for it to be applied to completed royal commissions.

I say for the record that the remarks from the shadow minister, Senator Ludwig, were unusual in that he is normally very particular about these matters. No assurance from the government—no assurance—can overturn this law, and any legal authority that wishes to enforce this law can access records from completed royal commissions. No assurance from the government can stop that happening, and the shadow minister, on behalf of Labor, is very unwise to think that an assurance from the government can overturn the fact of the legislation before us.

For example, there is the chance that documents that were collected as part of the Royal Commission into Aboriginal Deaths in Custody in 1991 or as part of the Royal Commission into the Loss of the HMAS Voyager in 1964 could be resurrected by a law enforcement agency and used against someone to bring about a prosecution. Those matters are deemed to be closed, and rightly so. The people or the agencies that supplied certain documents collected for those enquiries did not envisage those documents being subsequently available to law enforcement agencies—especially not without the right of appeal or even the right to know that they might be used by law enforcement for prosecution purposes later, under retrospective laws. The law applicable at the time of those royal commissions did not enable that to happen, and this amendment should not be able to be used to apply to them retrospectively.

The Australian Democrats are opposed to laws with negative retrospective application that infringe on rights and procedural fairness. Sometimes bills are proposed which beneficially or positively provide for retrospectivity, and we usually support those. This bill offends a long tradition of principle established by all parties in this parliament that we should not support laws which adversely affect individuals and organisations by making unlawful what was previously lawful—and by saying that, by the way, I will draw the attention of the Senate to the fact that the Royal Commissions Act has been amended since a number of royal commissions were held, and which are now affected by this law. Retrospective legislation offends against principles of natural justice, as does the fact that this legislation grants the custodian of the records an unfettered discretion with respect to the use of the records regarding the persons or bodies to whom they might be given. They can do this without obtaining the consent of, giving notice to, giving an opportunity to make submissions to, or taking into account submissions made by the owner of the records or any other person.

Item 2 of schedule 1 ensures that a person cannot appeal against a decision ‘of the custodian’ if in fact they find out that their documents are being provided to a law enforcement agency. Retrospectivity can and does trespass upon the basic tenet of our legal system that those subject to the law are entitled to be treated according to what the law says and means at the relevant time, subject to the interpretation of the courts. Retrospective legislation that brings uncertainty is to be avoided. As a general principle, the Democrats do not support the use of retrospective legislation that makes previously lawful activity unlawful or that acts to the detriment of individuals or organisations. I regard this not as a Democrats principle but as a cross-party principle and one of the most important principles in our 100-year-old parliament.

I understand why this bill has come about and the difficulties which Mr Cole experienced in obtaining documents from AWB during his inquiry—and I thought that some of the tactics adopted by their legal advisers, whilst legitimate, were most unsatisfactory. However, it is not appropriate that the frustration caused by an organisation that was being obstructive should manifest itself in a bill with open-ended retrospective application and the elimination of procedural fairness for a section of the community. In my view, this bill should have been quarantined to the Cole commission of inquiry and future royal commissions and, if it had been quarantined in that way, we would of course support it without amendment.

The second point I wish to discuss is accountability. There was no evidence given to the Cole inquiry that any of the relevant ministers were aware of, or had been informed about, the actions of the AWB. There was no written evidence that ministers knew what was occurring in the AWB. Rather than that being something the government should be commended on, it is something which uncovers systemic problems at all levels of government. There was obviously knowledge but it was not being passed on and was not being acted on. Thirty-five times the whistle was blown and 35 times no-one heard it. That is a failure, a great failure, by any measure.

There is no escaping the reality that an unhealthy trend has emerged in our federal government. This is best described as an ‘acute accountability vacuum’ at the ministerial level whereby executive government is shielded by the human armoury of partisan ministerial minders or advisers, or bureaucrats who just do not or will not do their job. Ministerial staffers are an important cog in the demanding work of the executive. Some carry out this vital task with skill, honesty and commitment. Of concern though is their capacity to intervene in departmental processes, to mediate between the political and administrative levels, to drive and skew advice, and to insist upon what the minister wants to know rather than the integrity of the policy process. While all this might serve executive government well, it does so at the expense of the public interest.

The Howard government is not unique in this regard; it has merely built upon trends already evident from its predecessors and already apparent in state government machinery. However, it is the case that this government has carried the trend to a new level. The barriers put up to avoid parliamentary scrutiny include refusing to allow ministerial advisers to be questioned by parliamentary committees. Then it went even further and refused to let bureaucrats be questioned by parliamentary committees. The minister in the estimates committees refused to allow public servants to answer questions which could be construed, on an extremely broad reading, as being within the purview of the Cole commission of inquiry.

It is only through transparent frameworks of accountability that the public can have confidence in their elected representatives and their staffers and advisers. Together with the need for an enforceable ministerial code of conduct, the Democrats have also called for measures to clearly define the role of ministerial staff and, to the great credit of the Labor opposition, they have, too.

It is clear that the Members of Parliament (Staff) Act is no longer adequate as a guideline for good governance. The 2003 Senate Finance and Public Administration References Committee report, Staff employed under the Members of Parliament (Staff) Act 1984 revealed significant flaws in the management framework for ministerial staff. The report recommended that the government needed to act swiftly to develop and implement a new management framework. Three years down the track and still there has been no substantive response to the recommendations.

I have also long campaigned against ‘jobs for the boys and girls’. The AWB scandal showed that the government has been too close and too trusting of a commercial, self-interested body. The ministers and their advisers did not ask the difficult questions, because their mates—and often they were their mates—were on the AWB, and when their mates told them something they believed them. Maybe that is natural, but it is not good government. Not that there is evidence that anyone in government from the political or the bureaucratic side asked any difficult questions. But that was their duty. It was their duty to do so under our commitments to the United Nations and under international law, and we should have been asking the obvious questions. As Professor Stephen Bartos, the Director of the National Institute for Governance at the University of Canberra, has said:

The key players were all part of the one small agri-political club—they all know each other and are very much inter-related (sometimes literally). Grains Council people go on AWB board, Grains Council people go on WEA, the gun-totin’ Trevor Flugge steps down from AWB but is hired by government to undertake a mission to Iraq ...

So you have an old boys network where, as Professor Bartos pointed out, the hard questions were not asked because that ‘would have been improper, altogether ungentlemanly in this very gentlemanly club’.

The Cole inquiry exposes an atmosphere where accountability and transparency have been diluted. There were no proper systems and procedures to ensure that, whoever was in the job, proper regulation of their actions and reporting systems would occur, and that they would ensure accountability. Unfortunately, because of the limited terms of reference, Commissioner Cole could not make the obvious recommendations that flow from that with respect to how government processes should have been and how they should be in the future.

This government minimises ministerial responsibility. A matter of concern raised by the Cole inquiry was the role of the Department of Foreign Affairs and Trade. At estimates hearings and during my other committee work, I have dealt with spokespeople from DFAT and, in all of my dealings with them and in the dealings I have observed with them, they have not presented themselves as being stupid, inexperienced, incompetent or corrupt—far from it—which means instead that the processes are poor, the reporting mechanisms are weak and, most of all, bureaucrats have become obeisant to a political culture that deliberately wants to not know.

Questions have to be asked: are the proper accountability and reporting mechanisms in place; are there systems to ensure that the relevant and appropriate information is getting to the people who need to make decisions about it? This is not a political matter; solely, it is about Australia’s interest and Australia’s reputation, which have been harmed because both the political and the bureaucratic side did not do their job.

If we have a culture where bureaucrats no longer provide full and frank advice and are fearful for their jobs, similar to that which we have recently seen exposed in DIMA, then we have a problem. The systems and procedures in place at DFAT need to be thoroughly investigated. I am not looking to blame particular public servants. As was pointed out in the Senate Finance and Public Administration References Committee report: accountability is about ‘being required to give account’ whereas responsibility is about ‘attracting credit or blame’. Public servants are required to give an account of their action or their inactions and, if the Westminster system is working properly in Australia, the relevant ministers are required to attract credit or blame.

The lack of written evidence on some of the matters which were personally known to some members of Austrade or DFAT, but were not officially passed on, points to a serious systems breakdown. It is also obvious that the sheer volume of information being provided to ministers, some of it very mundane, is difficult for them to manage because it often does not distinguish effectively between the routine and the imperative. These circumstances can be addressed by departments and ministers. They do not require a separate task force; they simply require a willingness to embrace the concept of good reporting, proper accountability and transparency, and of course enforcing the law.

This government has not shown itself under the Cole commission circumstances as having been willing to do this. This government, rather than addressing problems which can be fixed relatively quickly without great expenditure of taxpayers’ money, is setting up a task force which will take a great deal of time to establish and even longer to bring about prosecutions. But that is a matter of the legal consequences that flow from the commission. I am talking about the government getting on with the business of improving its ability to govern through the way in which its agencies report and keep account to the Australian people and the parliament.

The report of the Senate Finance and Public Administration References Committee recommended that all departments provide written guidance to staff regarding relations with ministers’ offices and that all senior staff receive adequate training in this area. It further recommended that the level and intensity of training for ministerial staff be increased and given a higher priority by ministers. It also highlighted the need for ministers’ staff to receive training with emphasis on political ethics, the relationship with the Public Service and record-keeping responsibilities.

If all of these recommendations had been implemented by the relevant ministers’ offices, it would have provided a much clearer picture to the Cole inquiry of exactly who knew what and when. Why do I emphasise ministerial staff? Because ministers themselves do not have the time, capacity or opportunity to filter and examine everything that comes through to them. They have to use their staff and advisers to do the relationship job and, in this relationship job under the Cole circumstances, they did not do what they should have been doing. It is a question of having appropriate systems in place so that corrupt, unethical or improper behaviour can be identified and stopped before impacting on the nation in the way that this scandal has.

The recommendations of the Finance and Public Administration References Committee were what I called at the time ‘a work in progress’. The Australian Democrats also proposed the establishment of an office of ethics commissioner, and that suggestion has not been taken up—nor has my Charter of Political Honesty Bill. In the light of the Cole inquiry, the Australian government should lead from the front with meaningful legislative and administrative change, the adoption of the recommendations of the finance and public administration report from 2003, the introduction of an office of ethics commissioner and should shift from a culture of finger pointing, blame shifting and avoiding responsibility to one where we, as parliamentarians, can be certain that departments like Trade or Foreign Affairs are on the job.