Rex Patrick (SA, Centre Alliance) Share this | Hansard source

I move:

That the Senate take note of the minister's response.

I want to talk about the context of this OPD, how we got there and some things that have happened along the way. I refer senators to my first speech, when I spoke of the work that the Senate does other than legislation. I said:

…probing and checking the administration of laws, of keeping itself and the public informed and of its requirement to insist on ministerial accountability for the government's administration. With words so relevant to us that they are quoted in Odgers, US President Woodrow Wilson described the informing role of the congress, stating:

It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served …

The philosopher John Stuart Mill, quoted with approval in the High Court case of Egan and Willis, summarised the task as: … to watch and control the government: to throw the light of publicity on its acts …

Applied to the Senate, these principles make it clear that our role is not just to review and pass legislation. Indeed, as President Wilson stated, 'The informing function of Congress should be preferred even to its legislative function.' In the House of Representatives the government has the majority, usually, and so that function is not performed there. Governments can never be relied on to supervise and scrutinise themselves. The Senate must take this role most seriously. The Constitution, particularly section 49, grants the Senate power to carry out this informing function.

I also talked about OPDs, and I said that all too often orders for the production of documents are being met with contempt. An order for the production of documents gets made, the government advances an argument for public interest immunity, however tenuous that argument might be, and, invariably, the Senate does not accept the public interest immunity claim but the government insists on it and refuses to provide the documents. Then the Senate does nothing except weaken itself. In those cases where the Senate arguments are strong for the documents to be produced, the Senate weakens itself by not using its powers to insist upon their production.

I just want to go to a few examples that are relevant to this government's allergy to transparency but also are criticisms of the Senate itself. On 17 November 2014, there was an OPD seeking access to any documents produced by macroeconomics.com.au as the result of a particular tender, including economic modelling and other examinations of the potential impact of the SEA 1000 submarine project on the Australian economy, amongst other subjects. That was refused to the Senate on the grounds it was cabinet-in-confidence. This is the cabinet-in-confidence document I'm holding. You might reasonably ask: how is Senator Patrick holding a cabinet-in-confidence document? The answer to that question is I got it under FOI. Sadly, I got it under FOI. It was denied to this chamber by this government as cabinet-in-confidence.

On 9 October 2016, the Senate made an order for the production of the design and mobilisation contract signed between the Commonwealth of Australia and DCNS on 30 September 2016. It was refused to the Senate on the grounds that it was commercially confidential and involved national security—and yet here I am holding it. It contains national security information, yet I am holding it here. How am I holding it? Because I got it under FOI. It was refused to the Senate, but I got it under FOI. Are you starting to see the pattern?

How about the future frigate contract? The tender went out. It was a tender where the government desperately did not want the Australian public to understand that they had sidelined two Australian companies. So there was an OPD in relation to this. There was an OPD on 4 September 2017 seeking access to the tender document. Again, I'm holding it here not because the government complied with the Senate's orders, not because the Senate insisted upon its right to receive the documents, but because I got it under FOI.

Here I have the Australian Industry Plan, a document you would think is quite reasonable to be in the public domain. It was Naval Group's commitment to what they would do with Australian industry were they to win the submarine contract, which they then, of course, did. When they won the competition, I asked to see this. I asked in the Senate, and the Senate gave me support, for an order for the production of documents to provide this and it was denied. Public interest immunity prevented me from getting access to it. Here is the decision of the Information Commissioner that eventually got it released to me. It did go further to the AAT, but eventually the Commonwealth backed down and agreed and we end up with it being in the public domain now. It's a sad state of affairs.

There was another OPD on 20 June 2018 that sought to find out what the price offered to Australia was for 12 French submarines. That's a reasonable thing to ask—to understand what their offer was, particularly in circumstances where we've got a project that went from something between $8 billion and $33 billion back in 2009 to $89 billion now. The Senate asked the government, by way of OPD, to hand over the documents. When they didn't, the minister—it was Minister Payne at the time, when she was defence minister—was asked to come and explain the circumstances. On 17 September 2018 we had a debate on why there was a public interest immunity claim. The government stood up—Senator Payne stood up and Senator Fawcett stood up—and gave the Senate a lecture on why this was confidential. I don't have that document, but what I do have in my hand is a decision made on the 13th of this month that requires the Department of Defence to hand it over to me. Again, the Senate ordered the production of this document. It was refused, and I'm about to get it under FOI—assuming the government doesn't appeal it, which would simply cost more and I'll get it anyway.

I also have a document here which is marked 'protected and sensitive'. It's an Auditor-General's report on the Army’s protected mobility vehicle—light. This is a document that the Attorney-General issued a section 37 certificate to censor the parliament from having. There's a matter before the AAT. I'm awaiting a decision on full release of this document, but, already, I have information in here that was denied to both houses of parliament because the Attorney-General issued a certificate saying it was sensitive. Can everyone see what's happening here? The Senate orders the production of documents so that it can do its job, it can do its oversight job—its most important job—and yet the documents don't get returned to us. They don't get returned to us, and then someone like me can go and get them under FOI.

That's exactly what happened in the case of the current motion that we're referring to—the valuation in relation to 'watergate' and the Clyde and Kiora properties. On 16 November 2017, the Senate ordered the production of water valuations. I know that because I lodged the motion on 15 November, my very first day in the Senate. We were refused the documents. Senator Birmingham is correct: some information flowed to us—in fact, quite a lot—but the critical information on what the actual valuations were was hidden. We went for a second round, and another set of documents were tabled on 26 October after a bit of negotiation with the government, but still the valuations were kept secret. Of course, the minister says: 'They were kept secret because they were confidential. They were commercially sensitive. These were valuations.' Anyone who buys a house knows that when you get a valuation on a house, sure, you might want to keep that hidden from the people you're purchasing it from, but after you've bought your house it's irrelevant. It has no meaning. The market price has been set.

In this instance, we had the Commonwealth purchasing water—$80 million worth of taxpayers' money for 29 gigalitres at a price of $2,745 per megalitre. Many thought, and still think, that that's expensive for overland flow water. There are other valuations in the same valley that say that water is worth nothing. Okay, so that's what they paid. They were open about that. They responded to questions. But I wanted to see the valuations. I wanted to see whether it fitted within the ranges recommended by the valuer, and they withheld it. They withheld it both in the OPD and in questioning. They withheld it when I used FOI with it as well. The department did not want to know that the value range was nothing like what they paid for it. The valuation, which I have here now, released to me under FOI—not under an order for production—says that the value should be somewhere between $1,100 and $2,300 per megalitre, yet we paid $2,745. Minister Birmingham makes the statement that somewhere in the valuation they were talking about paying between 10 and 30 per cent extra for higher-quality properties—and he is correct, it is in there. But it's in there as they work their way through trying to get to the final position, which they then state, which is really clear: this water is worth somewhere between $1,100 and $2,300. That includes all of those factors, including the view on whether or not it's worth 10 or 30 per cent more. The government paid outside of the value range. I will be asking questions. I'm sure there will be many people asking questions at estimates as to how they came to that conclusion, because it is either maladministration, incompetence or fraud. This is taxpayers' money. This might be embarrassing. I have the greatest respect for the Auditor-General, and I think there's been an error made. I will give him the opportunity to answer my questions as to how he thinks that it was within the range. It's clear it is not within the range if one looks at the valuation.

We're in the chamber talking about two things today. One of them is that we paid extra for water—extra taxpayers' money that didn't need to be spent. We should always be concerned about that. We're also in this chamber today talking about the ability of the Senate to do its job properly. There should never be a case where an OPD is made and denied on public interest grounds, when at some stage later a citizen is able to FOI it. It actually puts shame on the government and it puts shame on the Senate for not actually standing up for itself. We need to think about that. We need to think about how we do our job properly. It doesn't matter whether you are on the government side or on the opposition side or on the crossbench. We have a duty to conduct oversight. Whatever we do whilst Labor sits on this side will affect the Liberal Party when they are in opposition and when they want to hold the government to account. It's an important principle. Sadly, the government has made false public interest immunity claims and, sadly, the Senate has let them do it.