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

I rise tonight in support of the motion relating to the ability for a Senate committee to get access to information relevant to its line of inquiry. The general principles upon which I support this particular motion go back to the functions of the Senate. The Senate has two major functions. The first of those is to review, amend, and reject or pass legislation, and that is something that this chamber does quite well. We seem to have worked out how to do that, how to have a good contest of ideas and so forth.

The second function, of course, is to conduct oversight of government, the scrutiny of government—to watch over what government does, to shine a light on what government does. The purpose of that is not to obstruct the government in its stewardship of the nation but simply to examine that stewardship to make sure that, in the conduct of government, things are done properly. That's the purpose.

In this instance, the circumstances are that we've had a Senate select committee established to look at the government's response to COVID. That's quite a reasonable thing to do, noting that, as Senator Sheldon said, a lot of public money was being spent for public purposes throughout the pandemic. That's not to criticise anything that the government has done specifically in relation to that, but the Senate decided to examine the conduct, the stewardship, throughout the pandemic. In doing so, of course, it needs access to information. It needs to inform itself as to what government is doing and to critique, criticise and congratulate. They are the sorts of things we expect to happen in these committees, but that's not possible if the information is not being handed over. As a result, orders for the production of documents have been made to get access to information.

I just want to take people to a well-known case, Egan v Willis, in the High Court of Australia. The background to this is that the New South Wales parliament, trying to carry out its functions in respect of reviewing legislation, sought access to documents. When the New South Wales Treasurer refused to provide those documents, the Treasurer was ejected from the Legislative Council. He raised an issue of trespass upon himself in being escorted from the chamber. The High Court dealt with that. I just want to go back to some of the principles that were determined in Egan v Willis and some of the things that were said by Justices Gaudron, Gummow and Hayne:

(ii) Each House performs the parliamentary function of review of executive conduct, in accordance with the principle of responsible government;

(iii) The Legislative Council has such powers as are reasonably necessary for the proper exercise of its functions;

(iv) Production of documents by ministers is reasonably necessary for the performance of both functions (i) and (ii).

That's not Senator Patrick giving an opinion; that's the High Court of Australia saying that this is what the law is in this land.

Often ministers stand up and say, 'No, we're not going to provide these documents,' but they do so inconsistent with the law of the land, with the rulings of our High Court. People are talking about the rule of law recently. The government is thumbing its nose at the High Court in respect of the principles it has laid out. In respect of this particular motion tonight, recommendation 1 of the COVID committee was to do with the fact that, during the discussion on the Privacy Amendment (Public Health Contact Information) Bill 2020 dealing with the COVIDSafe app, the committee wanted to look at legal advice that had been produced about whether using a US company risked data perhaps being sent back to the United States. It was not unreasonable to ask for the production of that legal advice.

Of course, ministers stand up here all the time and say, 'Consistent with the principles or the previous statements of other attorneys-general in this place, we're not going to provide those legal documents, because legal professional privilege is involved.' Well, there's another case that followed from Egan v Willis and it's called Egan v Chadwick and Others. It was dealt with by the New South Wales Supreme Court. I want to read to the chamber the exact words of the three judges agreeing in respect of rights for a legislative council—or it could be a senate—to have access to documents which are otherwise legally privileged. What they said is this:

In performing its accountability function, the Legislative Council may require access to legal advice on the basis of which the Executive acted, or purported to act. … access to such advice will be relevant in order to make an informed assessment of the justification for the Executive decision.

Accordingly:

… access to legal advice is reasonably necessary for the exercise by the Legislative Council of its functions.

They added, 'If any access should occur as a matter of the occasion and the manner of the exercise of a power, not it's existence.' They make it very clear that the Senate—the Legislative Council in the case of New South Wales—has the ability to call for legal advice.

Justice Priestley said: 'The justification for legal professional privilege does not apply when a house of parliament seeks the production of executive documents. It must have the power to call for information relevant to the fundamentally important task of reviewing, changing and adding to the statute laws of the state. There will be from time to time information in the executive documents either necessary or useful for carrying out this task.' There is no question that it is proper and lawful to request access to legal documents, and it is improper to withhold it. I don't care about the opinions of Attorneys-General; I care about the law of this land, and the government scoffs at it! On one occasion it might say, 'It's convenient; we're going to rely on rule of law.' On another occasion, it simply turns its back on what is the law of this land. It's really clear. Make no mistake. That is the situation. That is the law as it exists in Australia.

Unfortunately, we've got a government that is acting inconsistent with the law, particularly in reference to recommendation 1. To the rest of them, of course, what has happened is the government has decided to sprinkle cabinet-in-confidence dust over all of the other information that's being sought. Now, the claim of cabinet in confidence is a serious one—it does warrant some level of protection and respect of deliberations and the decisions of cabinet—but, unfortunately, the Morrison government has watered this down completely. It has arrogantly stated that cabinet is now anything it wants it to be. It can be a meeting of doctors, a meeting of the AHPPC. It can be a meeting of gas executives with the NCCC. Let me make it very clear: a cabinet is a collection of ministers responsible to one parliament. There is no such thing as a national cabinet. I don't mind if you form a national council to deal with issues related to COVID, that's quite appropriate, but you don't sprinkle cabinet secrecy dust over everything. You don't say: 'I am the Prime Minister. I'm dissolving COAG, and now I'm going to make it all part of cabinet, and nothing that the government does will be seen because it's all national cabinet in confidence.' Sorry, but that's not the way it works.

Another principle of cabinet is one of collective responsibility. Minister Ruston will know this. Minister, you have collective responsibility. You can say whatever you like inside the cabinet, it's protected—as deliberations of cabinet ought to be. But once you step out of the cabinet, you are as one or you resign from cabinet. They're the rules. And yet in the national cabinet we see the Prime Minister come out and say one thing, and then we see the Western Australian Premier come out and say another thing, and then we see the New South Wales Premier come out and say another thing again—clearly not collective responsibility. The situation in relation to that will be tested very shortly. I have actually asked for the minutes of the national cabinet. I asked for them under FOI and of course the government denied them to me, making a claim that they were cabinet-in-confidence. I took that to the Information Commissioner and the Information Commissioner, properly, forwarded it to the AAT, where it can be dealt with seriously.

At the time, the government said: 'Nothing to see here. All precedents are sorted out; it's not complex.' That's what they said. But it got to the AAT, and I'm happy to inform the chamber now that the matter is so serious that it's been referred to a Federal Court justice—Justice White in Adelaide—and, suddenly, the government has made its mind up that it is important and has appointed a QC to represent it! So it went from something that was not an issue to something that requires a taxpayer funded QC to keep secrets from the Australian public which never should have been kept secret.

It's disgraceful! It's disgraceful and it's arrogant. It's arrogant to stand and say, 'I am simply, as a Prime Minister, going to unilaterally say that everything the government does is now secret.' That's what they've done and I'm going to fight this. I'm sure that Justice White will make a good decision on this, but it may need to go further. So government, you're on notice. If I win that case then everything that has been asked for in relation to the COVID committee will suddenly become available under FOI, because the defence that's being run—the racket that's being run here—to keep things from the parliament will evaporate by way of judicial order.

It's sad. There are a number of recommendations in this committee report that basically say the Senate needs access to information in order to do its job properly. We're not after information about the top speed of our future submarines and we're not trying to see what the exact range of an F-35 is. We're simply trying to see perhaps what decisions were made in respect of border closures, or some of the earlier decisions relating to vaccines. There are lots and lots of different questions being asked by the committee and the shutters get put up, unlawfully and arrogantly, by the coalition government. It's not proper.

Sadly, we find ourselves debating this—and I absolutely support Senator Gallagher in relation to this particular motion that she has put, because she's trying to do her job as the chair. She's trying to make sure that the committee can properly examine the reference made by the Senate to her committee, but she can't, because information is being denied, inappropriately and unlawfully. There's no question about that, so I will be supporting this motion.