Nick Xenophon (SA, Independent) Share this | Hansard source

I endorse the remarks of my colleague Senator Ludlam. I signed off, along with the Australian Greens, with respect to this dissenting report. I must say that Senator Bernardi is known for his plain speaking on a whole range of issues. But on this one I must say that his handling and his justification for this particular approach, the approach of the committee, and effectively the approach of the opposition and the government in terms of public interest immunity claims are very disappointing. The fact is that the excuses given by the committee in its majority report not to act are just woefully inadequate. I think Senator Ludlam made reference to the committee saying, ‘We don’t want to cause hostility with the executive arm of government.’ That is just laughable. The role of the Senate, the house of review, is to appropriately and thoroughly scrutinise what the executive arm of government is doing. That is what we are meant to be doing. We are meant to be a watchdog for Australians in terms of the executive arm of government. When you consider what the committee has come up with, that is an abdication of the Senate’s responsibility in order to do what we are meant to be doing.

We need to also consider the context of why this committee reference occurred in the first place. Senator Ludlam has amply set that out in terms of the NBN and the fact that Senator Minchin, I believe quite appropriately, was pursuing further details from the government in relation to this. The fact that the government is not prepared to look at reform in relation to this area—and neither, it seems, is the opposition, despite the fact that this goes against its very interests in terms of what the opposition is trying to achieve in this context of the NBN documents—I think is something that will not be without consequences. I believe the government will regret taking the position it has in the context of further debates, in the context of the NBN, and in the context of the Telstra legislation.

The fact is that the expert witnesses before this committee made it clear that the proposal could be improved on, the proposal could be made workable, the proposal could be very effective. Associate Professor Twomey argued that the Senate had a greater chance of developing a cooperative model than New South Wales and Victoria because:

I think the Senate does show cooperation and has not taken things to an extreme, and that is probably one of the virtues of the Senate ... If, for example, the Senate does not receive the documents that it wants and it is unhappy about it, the strongest action it seems to have taken in the past is things like extending question time or making it difficult for governments to get their bills through on time. But it has not gone to the extent of suspending ministers and the like.

Associate Professor Twomey made it clear that there is a way forward; that the Senate, because of the way that the Senate functions in order for the Senate to do its business, relies on a process of cooperation and relies on a cooperative model; and that this would work.

The former Clerk, Harry Evans, was also confident that the requisite cooperation between the executive and the Senate could be achieved and discussed the incentives with the executive to cooperate with the proposed scheme. Harry Evans made the point:

I suppose the incentive for the executive government to agree to this sort of proposal is that it will avoid those constantly recurring cases in the future, which end up with the government being accused of engaging in a cover-up and the public not knowing whether it is a cover-up or whether it is not.

That, to me, is the key to this. This is about transparency. This is about multibillion-dollar contracts that affect every taxpayer. I see Senator Joyce is in the chamber as the shadow finance spokesperson. I have not had a chance to publicly congratulate him on his elevation. Senator Joyce has been consistently calling for the need for transparency to ensure that taxpayers get value for money in terms of deals that are done, that the process of spending is transparent and that we are not left with an unnecessary debt.

How are we supposed to do our job properly if public interest immunity is being used as a shield, as a cover, for decisions of government that could cost taxpayers many billions of dollars without the checks and balances that a process of independent arbitration of such claims can lead to? That is why with my colleagues the Australian Greens—and I am very grateful for the work that Senator Ludlam has done on this—I support a number of practical recommendations: that the information commissioner, should the Freedom of Information Reform Bill be passed, be required to report annually to the Senate on the veracity of government claims of public interest immunity, which implies that the commissioner has a role to look behind those claims of public interest immunity; that an independent arbitrator be appointed where there are disputed claims; that the Auditor-General provide independent advice if a claim involves commercial-in-confidence matters; that the President of the Senate may issue guidelines to the independent arbitrator setting out the manner in which the arbitrator’s discretion ought to be exercised; and, finally, that there be a scheme for resolving these disputes of public interest immunity with respect to Senate orders for documents.

These are practical measures. These are things that can work. We have heard from the expert witnesses that these matters are practical and can be implemented. Instead, the committee—the government and the opposition—in the majority report, in a hand-wringing exercise extraordinaire, is saying, ‘We can’t change things; we’ll leave things as they are.’ I think there are consequences for taking such a blinkered approach to such an important issue. If the government and the opposition think that is the end of it, then they ought to think twice, particularly in the context of the NBN legislation that will be coming up shortly. I seek leave to continue my remarks later.

Leave granted; debate adjourned.