Mathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | Hansard source

I seek leave to make a statement of no more than seven minutes.

Leave granted.

The government will oppose this motion, and I call on the Senate to oppose this motion in full. As Justice Meagher observed in the New South Wales case of Egan v Chadwick and Others as part of the majority decision:

The Cabinet is the cornerstone of responsible government … and its documents are essential for its operation. That means their immunity from production is complete.

Even Chief Justice Spigelman, who took a slightly softer position, also made clear as part of the same majority decision, at paragraph 70, that the power to require the production of documents should 'be restricted to documents which do not, directly or indirectly, reveal the deliberations of cabinet'. It has been well recognised in the Westminster system for hundreds of years that it is in the public interest to preserve the confidentiality of cabinet deliberations to ensure the best possible decisions are made following thorough consideration and discussion, including of relevant advice to cabinet or its committees. Under our system of responsible government, the principle of cabinet confidentiality is central to ensuring the provision of good government.

The report that the movers of this motion are attempting to force me to table on behalf of the government is a cabinet-in-confidence document. It is advice prepared by the Secretary of the Department of the Prime Minister and Cabinet for the purpose of informing the deliberations of the cabinet committee, and it is advice which was formally considered by that cabinet subcommittee as part of its deliberations. The Governance Committee of cabinet did not just use this report as some background material; it deliberated upon its very contents and made decisions directly in relation to those contents. Its release would therefore reveal deliberations of a cabinet committee. It would do so directly or, at the very least, indirectly.

Labor Senate cabinet ministers in the past—and, I would put it to the Senate, any Labor Senate cabinet minister in the future—being asked to release cabinet documents of formal advice prepared for the consideration of and informing the deliberate processes of cabinet or a cabinet committee would have refused, and will refuse in the future, to comply with any such request, claiming, as I have, public interest immunity. I continue to claim public interest immunity on behalf of our government, in the same way governments of both persuasions have done since Federation.

Turning to the sanctions proposed in part (2) of the motion. In the 119-year history of the Australian Senate, those proposed sanctions are completely unprecedented—completely unprecedented—and they are completely inconsistent with the ordinary application of the standing and sessional orders and longstanding Senate practice. It is our view that part (2) of the motion is asking the Senate to exceed its powers. There are limits on the Senate's powers, and it's our view that this motion is asking the Senate to exceed its powers.

The selection of the Leader of the Government in the Senate is a matter exclusively for the government, and such a decision should not be undermined by the Senate denying him or her the rights and privileges which accrue to the person holding that position from time to time under the practices and procedures of the parliament. Furthermore, the government allocates ministerial responsibilities. This motion would remove the capacity of senators—all senators, including Labor senators—to ask questions of the Minister representing the Prime Minister in the Senate, which surely is counterproductive and entirely undesirable. It would also deny a minister the right to attend legislative and general purpose standing committees, including during the consideration of estimates, which denies the government the capacity to fulfil its responsibility to outline and explain its actions to the Senate.

In any event, even if the Senate had this power, it would be an abuse of power to use it. Consider this: if the Senate had this power, where a majority of senators could remove a senator from his or her chair and prevent him or her from performing the functions to which he or she has been duly appointed, then a majority of members in the House of Representatives could conceivably do the same. A government majority in the House of Representatives could remove the Leader of the Opposition from his chair at the table for three weeks and prevent him from asking questions, similar to what this motion is seeking to do to me as the Leader of the Government in the Senate. It would be completely inappropriate and we would never do it because, unlike those opposite, we respect the institution of the parliament.

We all understand that this is a political stunt. The fact that Labor is proposing and supporting this motion reflects very badly on all of you. Let me say to those Labor senators who have not yet been ministers but who aspire to be Senate ministers in the future: be very, very wary of letting those who came before you box you into precedents that you, not they, will have to live with in the future. I urge the Senate to reject this motion.