Scott Ryan (President) Share this | Hansard source

By letter dated 7 May 2021, Senators Gallacher and Patrick have raised a matter of privilege alleging interference with the Economics References Committee inquiry into Australia's sovereign naval shipbuilding capability.

The letter outlines numerous occasions on which the Department of Defence, the secretary of Defence and the former Minister for Defence have declined or refused to provide documents to the committee in response to committee requests and Senate orders. Senators Gallacher and Patrick contend that 'the committee's ability to progress the inquiry has been severely and deliberately impeded by the department'.

The letter raises three grounds on which the conduct complained of may amount to an improper interference with the functions of the Senate and should be investigated as a possible contempt. They are:

Where a matter of privilege is raised, my role is to consider whether a motion to refer the matter to the Privileges Committee should have precedence in debate. In doing so, I am constrained from considering the merits of the matter. Instead, I am bound to have regard only to the two criteria in privilege resolution 4.

The first of these criteria seeks to reserve the Senate's contempt powers for matters involving substantial obstruction to Senate and committee processes, or to the performance of senators' duties as senators. It is clear that conduct of the kind claimed in the letter could substantially obstruct the references committee in its inquiry and frustrate the orders of the Senate requiring the production of the documents to the committee. In that sense, the criterion is met. Whether that conduct as outlined warrants investigation as a possible contempt is not a question for me but for the Senate.

One matter for senators to note in making that assessment is that, in disputes about the production of documents, the Senate has generally preferred 'political' or 'procedural' remedies—such as censure motions or debating explanations for noncompliance—rather than seeking to enforce its orders through its contempt jurisdiction.

Nevertheless, Odgers' Australian Senate Practice makes it clear that:

The principal remedy which the Senate may seek against an executive refusal to provide information or documents in response to a requirement of the Senate or a committee is to use its power to impose a penalty of imprisonment or a fine for contempt, in accordance with the Parliamentary Privileges Act 1987.

The passage goes on to note, however:

… practical difficulties involved in the use of this power—

the contempt power—

particularly the probable inability of the Senate to punish a minister who is a member of the House of Representatives, and the unfairness of imposing a penalty on a public servant who acts on the directions of a minister.

I specifically highlight this latter issue and raise this caution about the treatment of public servants, because Senators Gallacher and Patrick seek to steer any possible contempt investigation to consider the role of the secretary of the department.

The second criterion—regard for the existence of any other remedy—recognises that the Senate is generally reluctant to deal with conduct as a contempt where another, more appropriate, avenue for redress is available. Only the Senate can remedy interference in the proceedings of its committees or conduct frustrating its own orders, so in my view this criterion is also met. Whether that remedy should take the form of a Privileges Committee inquiry, or some other form if any, is a matter for the Senate itself.

I table the correspondence and call Senator Patrick to give a notice of motion in respect of the matter.