Rex Patrick (SA, Independent) Share this | Hansard source

I rise to take note of the answer as well. This is becoming a regular feature of this part of the day, and the problem we're encountering is that the government is allergic to scrutiny. The government is not answering questions on time and the government is not returning to OPDs in the fashion in which it should. This is quite important.

I said in my first speech that I thought the Senate did the job of legislating pretty well. Bills are brought into the Senate, we deal with them through the committee stages, we come into the chamber at second reading and make our explanations as to what we think about the legislation and we then debate it in committee. And, you know, we often amend legislation and make it better; sometimes we even reject it. This week Senator Sterle referred something to a committee halfway through the committee stage because the Senate got to a point in its deliberations where there was a need to examine the legislation further. We do that very, very well. What we don't do well, in my view, is the scrutiny role, which is the much more important role and, of course, the role for which these questions on notice and OPDs are necessary.

I will read again the words, quoted in Odgers, of US President Woodrow Wilson in describing the informing role of the Congress:

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 …

John Stuart Mill also contributed in this area, and it was quoted in the High Court case of Egan v Willis. He summarised our task as follows: 'to watch and control the government; to throw the light of publicity on its acts'. Applied to the Senate, these principles make it clear our role is not just to review and pass legislation. Indeed, as President Wilson said, 'The informing function of Congress should be preferred even to its legislative function.' That's particularly important in this place. In the House of Representatives, the other place, the government has a majority, so the scrutiny function of the House is impotent because of the numbers.

I've had members from the other place say to me, 'Why isn't it that the House can do OPDs?' The answer to that question is: well, of course it can. It enjoys the same powers as the Senate, by way of section 49 of our Constitution. Going back through the history of the House of Commons Erskine May is the equivalent. The House of Commons equivalent of Odgers is Erskine May. It's a great read. Senators should have a read of some of the things that happened there in order to get scrutiny happening.

One of the things that I said in my opening speech was—and I will read from it again:

Questions on notice tabled in this chamber are often not returned within the 30 days required by the standing orders. The same is true for estimates, where answers to questions are often returned to committees at the eleventh hour. This is disrespectful of the Senate, and more so of the citizens for whom the questions are asked, and should not be permitted…

I also said:

All too often, orders for the production of documents have been met with contempt. An order for the production gets made. The government advances an argument for public interest immunity, however tenuous that argument might be. Invariably the Senate does not accept the public interest immunity claim and the government insists on its refusal to provide the document, and then the Senate does nothing except weaken itself.

Senator Hanson has risen and, rightfully, asserted her right as a senator to seek an explanation as to why the government is ignoring the scrutiny requests of the Senate. It's extremely important—extremely important—that there is respect from the executive in relation to the Senate and particularly in relation to the Senate's oversight role. Again, this stems from section 49 of the Constitution.

We saw yesterday, in a debate relating to another OPD that had not been returned, that the government was relying on confidentiality in a contract, as though someone in the Department of Defence can make a contract, sign it and say it's confidential and that somehow overrides the laws of this country. Of course that is a nonsense. It can't.

I note yesterday when Senator Birmingham stood and made explanation, or part explanation, in relation to documents that haven't been provided to the economics committee—and I do acknowledge further information has been tabled today and I thank the minister for that—that the documents were too commercially sensitive for the economics committee. What a load of rubbish! I've seen some of these documents. Again, the committee is not asking for these documents to be made public. But they are not in any way sensitive. In fact, they have markings as such that they do not seek to protect themselves from anything other than saying 'commercial in confidence'. The commercial and trade secrets of a defence company are very similar, often, to other jurisdictions in that they can cause commercial harm. Yet the minister makes a claim that somehow these commercial documents are so sensitive that the chamber can't see them. Senator Gallacher rose and talked about his experience on the public works committee where they look at this sort of stuff all the time.

To the government: you have to get your act together. You have to start answering questions on time. Information has temporal value. We're getting an answer a year late or getting a response to an OPD a year late or, in fact, as we know, getting responses to Senate reports late. I know that the President makes a report every so often about how many responses to committee reports are overdue. Maybe I'll have to start looking through the standing orders to look at what can be done in relation to that. The Senate does a whole lot of work in relation to committees. They consume the time of senators and the time of all of those people who make an effort to contribute to those committees and who often travel long distances. We have the secretariat working really hard behind the scenes to write a good report that goes to government, and then the government ignores it. Senator Hanson rising to her feet seeking an explanation is quite valid, and the government really does have to pick up its act in this regard.

I said yesterday, and I'll say it again today: it appears that scrutiny to the Prime Minister is as kryptonite is to Superman: it makes him go weak at the knees. We can see that in the Auditor-General having his audits cut from 48 audits down to 36. That's not acceptable. Does the government not understand the bang for buck you get by having an empowered Auditor watching over departments of government and making sure that everyone in government thinks: 'You know what? There's a chance we might get audited, and therefore we will make sure we absolutely do the right thing'? Yet there are arguments about whether there should be 36 or 48 audits. But the reality is it should be 75 to 80 audits. It should be expanded. We should have a much bigger remit for the Auditor-General in terms of oversight, because one of the things we're running into regularly is a nonresponse: a nonresponse to questions, a nonresponse to OPDs, a nonresponse to committee reports. It is not good enough.

I say to the Leader of the Government in the Senate: if I have to stand up every day and point out the fact that you are not taking the Senate seriously in respect of its scrutiny role, then I will. If you want to use up all your legislation time having us debate things like this, then so be it. You need to understand the importance of it. Get your staff to start looking around for what has not been responded to and what has. And stop advancing public interest immunity claims on OPDs that should not be advanced. I say that with authority, having requested a number of OPDs that have not been responded to by government, or were responded to with a PII, and which I've then got under FOI. Time and time again this has occurred, including for a future frigate tender, which was the subject of an OPD that was not returned on the basis of confidentiality or national security. Under FOI, I got the lot. I requested an OPD for a macroeconomic report into future submarines, which was claimed to be cabinet-in-confidence. I now have it because I got it under FOI.

The government has to start taking seriously the role of the Senate in terms of scrutiny. It's no longer going to be the case that we just let things slip by. I'll be going back to my office, I'll be looking for every answer that's late and tomorrow I'll be seeking explanations, so you are warned. I've done my duty as recommended by the Clerk in making sure that we behave in a responsible manner. I'm giving you the warning. I will look at the list of questions on notice and I will see which ones have not been answered. I'll be here seeking explanations for all of them and, if it takes me all of tomorrow, then so be it. I'll have a look at some of the OPDs and I will be seeking advice from the Clerk in relation to all of those Senate committee reports that simply have not been responded to. 'That annoying, pesky Senate keeping the executive occupied because of its scrutiny role'—that's kind of what the feeling is. Well, it's got to change. It's got to change, Minister, otherwise we're going to have interruptions like this all the time.