Scott Ryan (President) Share this | Hansard source

By letter dated 29 August 2021 Senator Patrick raised as a matter of privilege the failure of the Commissioner of Taxation to comply with an order of the Senate requiring the production of documents related to JobKeeper payments. While the Senate has generally preferred political or procedural remedies in disputes over documents, it may also seek to enforce its orders through its contempt jurisdiction. In that vein, the Senate in June this year referred a dispute over documents withheld from the Senate Economics References Committee to the Privileges Committee for inquiry as a possible contempt.

The letter from Senator Patrick sets out the background to the current matter. The tax commissioner declined to comply with the Senate's order of 4 August, raising the confidentiality of taxpayer information as a public interest immunity claim. On 23 August the Senate explicitly rejected that claim and ordered the commissioner to 'fully comply with the order'. The Treasurer then responded with his own public interest immunity claim, while the commissioner declined to take any further action until the Treasurer's claim was determined by the Senate. Senator Patrick seeks to have the commissioner's refusal to comply with the second order dealt with as a matter of privilege and referred to the Privileges Committee for inquiry as a possible contempt.

Where a matter of privilege is raised, as I've said before, my role is to consider whether it should have precedence in debate. In making that determination I am bound to consider only the criteria in privilege resolution 4. These criteria seek to reserve the Senate's contempt powers for matters involving substantial obstruction to Senate and committee processes or to senators' duties. They also recognise that the Senate is generally reluctant to deal with conduct as a contempt where there is another more appropriate avenue for address available.

It is clear that the conduct of the kind cited in Senator Patrick's letter could substantially frustrate the orders of the Senate requiring the production of documents. The Senate has declared in privilege resolution 6 that disobedience of a lawful order of the Senate and refusal to produce documents in accordance with a Senate order may be dealt with by the Senate as a contempt. I am, therefore, satisfied that criterion A is met. The question of whether the matter warrants investigation as a possible contempt or whether the tax commissioner has a reasonable excuse for his conduct are not questions for me but for the Senate.

In relation to the second criterion, regard for the existence of other remedies, only the Senate can remedy conduct obstructing its own orders. In that sense this criterion is also satisfied. However, I note that there are also procedural and legislative avenues available to the Senate. They include taking action to consider the public interest immunity claim made by the Treasurer or seeking the publication of the information by legislative means. In relation to possible legislative action, I note that both Senator McAllister and Senator Patrick have circulated amendments to an upcoming treasury laws amendment bill that would require publication of the information in question.

In any case, the matter meets the criteria I am required to consider and I have determined that the matter should be granted precedence. However, it remains for the Senate to determine whether the matter should be progressed by way of referral to the Privileges Committee or whether another remedy should be pursued. I table the correspondence and call Senator Patrick to give a notice of motion in respect of the matter.