Christine Milne (Tasmania, Australian Greens) Share this | Hansard source

by leave—I move:

That the Senate take note of the statement.

Mr President, I thank you for the statement that you have provided to the Senate today and for the consideration that you have given the matter. It is an incredibly important matter. Coming to terms with it and thinking about it highlights a problem we have in Australian democracy and in our regulatory frameworks. This matter was referred to the Australian Competition and Consumer Commission and the commission said that they could not make a decision about it because the evidence provided to the Senate was under parliamentary privilege so they would not be able to deal with it that way. But when we come in here to the Senate what we have is a precedent whereby contempt has been through contradictory statements, rather than a statement being made as true and the absence of one that was not made at all—in other words, omission. And it is very clear that, under the legislation that we have, the Australian Securities and Investments Commission oversees the disclosure obligations that companies have in terms of their businesses. So we have got the ACCC, the Australian Securities and Investments Commission and the parliament, and the companies involved.

When the ACCC made its decision on this matter it said that political statements to the media or to the parliament were comments not made in the course of trade and commerce. But I would argue that by coming to the Senate and giving evidence in relation to the Carbon Pollution Reduction Scheme, particularly as it pertains to the level of compensation that those companies are getting, that does materially go to the issue of trade and commerce because it is going to impact on the trade and commerce of those companies—that is pretty obvious—and that the statements made in relation to jobs and investment in the industry in the future also go to trade and commerce. So the issue I have here is that, whilst the precedent is there of giving one lot of evidence to the Senate and maybe making a contradictory statement somewhat else, not disclosing to one’s shareholders the dire circumstances that one gives to the Senate is in fact providing two separate views of the world in two separate fora. One of the tests here is: were the companies telling the truth when they came to the Senate?

I respect your reiteration, Mr President, of the Senate resolution providing that witnesses shall not:

… give any evidence which the witness knows to be false or misleading in a material particular, or which the witness does not believe on reasonable grounds to be true or substantially true in every material particular.

I refer in particular to Xtrata Coal, for example, who made the claim that, if the Carbon Pollution Reduction Scheme is introduced, Xtrata could sack hundreds of Queensland workers and bin a $5 billion project. It claimed that if the CPRS is implemented it will close four mines in New South Wales and scrap plans to invest $7 billion in new coalmining operations in New South Wales and Queensland that would create 4,000 jobs.

Now you would think if the impact of this legislation was going to lead to the closure of mines, to the sacking of that many people and to the binning of a $5 billion investment project and a $7 billion investment in New South Wales and Queensland that the company ought, under the ASIC rules, to disclose that to their shareholders as being a potential risk for the company going forward. The point is that while that claim was made to the Senate Select Committee on Climate Policy, there was no disclosure from Xtrata to its shareholders or to the Stock Exchange that those multibillion-dollar investment projects would be binned if the Carbon Pollution Reduction Scheme went forward.

So we have a difficulty here that the current rules as they apply to the ACCC, to ASIC and to the parliamentary Privileges Committee seem to be in contradiction. When people come before Senate committees it is expected that they will tell the truth, and the whole truth, to those committees. What we have here is a situation where by omission they have not told their shareholders under the obligation they have under the disclosure provisions under ASIC’s jurisdiction. So the question is: to whom are they telling the truth? Are they telling the truth to the people of Australia or are they telling the truth to their shareholders and their investors?

We are also aware that many of these corporations hold private briefings for their institutional shareholders. So at one level they will tell this Senate something; at another level they will have a private briefing with their institutional shareholders, and nobody knows what they tell them; and then they have their disclosure obligations through their company reports, annual general meetings and the like where they tell the whole of their shareholders and the media and the Stock Exchange what is going on. As a result of having examined this matter, I think we have an issue to deal with in this parliament, and that is: how are we going to go forward in the future in holding corporations and witnesses to account in the Senate processes and making sure that the contempt of lying to the Senate or misleading the Senate or misleading the Senate by omission is dealt with? Evidence to parliamentary committees goes to the committees’ reports, which go to the nature of legislation which ultimately appears before this chamber. Members of this parliament actually take seriously and believe what people tell them in the Senate committees because they believe it is a contempt if they do not and so they reasonably expect people to tell them the truth. So whilst I respect the ruling you have made in this context, Mr President, I note that you have said this ruling does not preclude taking action under other Senate processes and I will consider how I might do that.

I do think that it raises a very important issue about contempt for the Senate and the role of corporations. I think the ACCC has taken a very narrow view of what constitutes comments made in the course of trade and commerce as opposed to political statements. These were not political statements in the sense of ‘the government or the opposition is better or different’. These were comments that particularly pertained to trade and commerce, the operations of those particular companies. The fact that this has even been raised has certainly started to have an impact. As was noted recently, BlueScope Steel provided new, more detailed information about the likely impact of the government’s emissions trading scheme in their end of the year results. That had not happened until then. Now we are putting some pressure on them to put into writing to their shareholders, under the disclosure provisions, exactly what they are saying. We will certainly be monitoring these companies to look at what they actually do. We will be looking very closely at their profits and investments that they claim will be ‘jeopardised’.

I will also be going to ASIC to have a look at the disclosure provisions and to see whether these companies have been in breach of those disclosure provisions because of their failure to disclose to their shareholders the information that they disclosed to the Senate through the parliamentary system. You could now assume, under this ruling, that when they made those statements to the Senate they were telling the truth. Therefore, if they were truthfully outlining the likely impact on their companies, I feel sure they will have been required, under the ASIC rules, to disclose to their shareholders that truthful statement or impact on the company’s bottom line.

Mr President, I appreciate the consideration that you have given to the matter. I will take your advice and look at what other Senate processes may be employed to take this matter further. But I would also urge the Senate to really start thinking about contempt of Senate processes. While I am on my feet with regard to that, I think the number of times we now see reported in the media the recommendations of Senate committees before they report to the Senate is disturbing. Only yesterday there was a report, yet again, in relation to managed investment schemes, which said what the joint house committee is going to find. That is a contempt of the Senate. The people of Australia have got a right to expect that Senate processes will be respected by the senators in here who participate in those processes, but when we invite witnesses we expect those witnesses to respect the Senate and its processes, to tell the whole truth, not to omit or to exaggerate and not to give the same disclosure to their shareholders that they try to use to influence the Senate.