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

Yes, I do, but I still also reserve my rights in respect of 75. I want to touch on three areas in relation to this particular matter. The first of those is the disrespect of the executive—and I'm talking about ministers—in making claims which now, I might point out, are not just in defiance of Justice White's decision that national cabinet is not a cabinet but are also in defiance of a Senate resolution that says that particular public interest immunity in relation to national cabinet is not to be advanced. That is what the Senate has decided. As officers of the Senate, people need to look very long and hard at themselves in advancing those sorts of immunities. I'll give you another one to try—intergovernmental relations—because that may actually constitute a reasonable public interest immunity. But stop lying. Stop deliberately misleading. Stop basically confronting what is law in Australia. Accept the law as it is and that national cabinet is not a committee of the federal cabinet.

The second point I would touch on—this goes to what Senator Gallagher was talking about—is public officials turning up and basically making public interest immunity claims, also knowing full well because the matter in the AAT against the Prime Minister by myself, where Justice White established that the national cabinet was not a cabinet, has been quite highly publicised.

I'll go back to the law as it is in Australia. This is not me suggesting what should happen; this is the law. Under the Public Service Act section 10 there are certain values that the APS holds that include that they act in a professional manner, in an objective manner and with integrity. Indeed, section 10(5) says:

The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.

That is the obligation placed in law upon public servants. I've named a few of them. I might point out that there's another one that I've just got back in the last day or so from another public servant—I'll come back to that when I deal with late questions on notice. In effect what happens here is the secrecy obsession of the Prime Minister drives down through the frontbench, who don't have the courage to stand up and say: 'Sorry, Prime Minister, I'm going to recognise principles in respect of the rule of law and I'm not going to say to the Senate what you want me to say, which is that national cabinet is, in fact, a cabinet when we know that it is not and the Senate has resolved that it is not.' That's the first problem. We've got ministers not standing up to the Prime Minister. Perhaps they're more worried about their own personal position and, perhaps, the money that flows from that, rather than their obligation to the public.

What happens is they push this down through the Public Service where, in effect, they force public servants to breach the law, to act in a manner that is inconsistent with the APS values and the APS Code of Conduct, which is also enshrined in the Public Service Act. I'm not making any excuses for those public servants, because they, particularly the senior ones, ought to stand up and say: 'Sorry, Minister; I'm not saying that. I'm not doing that.' Sadly, we've seen some examples—led by Mr Gaetjens—where they just cast that aside and say: 'No, I'm going to hoist my Liberal Party spinnaker because whilst the Liberal government is in charge I'm going to do everything that they say.' That's what Mr Gaetjens does. I'm hoping that the Labor Party, should it get into government, looks very long and hard at these people and looks at their moral fortitude and their courage. Again, I'm not talking about some very good people who work in the APS and do a really good job; I'm talking about the very senior people that are corroding what would otherwise be the confidence that we're supposed to have in the Public Service. That's the second problem.

The third problem is actually our problem. It's the problem of the Senate, which simply allows this to happen. I again go to the report of the Privileges Committee in the last few days, where we had a lawful order of the Senate not complied with by a statutory officer. In actual fact, somehow the Privileges Committee finds that that's not a contempt. It's no wonder only half the questions are getting answered in this place.

I'll go to the matter—and I know Senator O'Neill raised this yesterday, but I'm not convinced—of the referral that took place in relation to the lack of provision of documents to the Economics Committee. The referral was made on 15 June this year. Six months later, we're likely to end this parliament without that matter being resolved. Now, I'm happy to inform the chamber that there at least has been some agreement in respect of the provision of information to the Economics Committee—and that's a good thing—but it's taken six months. Nothing that happens from now will undo the fact that the minister and the secretary have frustrated this Senate from being able to conduct its job.

I'm absolutely sure we'll get to a point now where that committee will not report properly. Sadly, we've lost the chair, who had so much passion in relation to this particular issue. But the Senate may not end up reporting on this. It's certainly not doing the job that it wanted to do. And whose fault is that? It's the fault of the Senate. I'm sorry, but the fact that the Privileges Committee has taken six months to get to this point is atrocious. I invite the Chair of the Privileges Committee and Senator Abetz, the Deputy Chair—both senators who I respect greatly; they are very tough senators in normal circumstances; I don't understand what is happening here—to go and read Machiavelli's The Prince. That will show you how you can deal with these sorts of circumstances. Just a couple of fines, just a couple of jail terms, would stop this instantly. We wouldn't be having these debates. We wouldn't be having these discussions. But, unfortunately, as I've found out, the Privileges Committee is weak. The Privileges Committee of the Senate is weak. If any journalist ever uses the words 'the powerful Privileges Committee', I'm going to correct them. This is the fault of the Senate.

No, it's not the fault of the government. The government are in breach, but we do nothing about it. It's within our power to do something about it and we don't. That's the problem.

Senator O'Neill is welcome to stand up afterwards and take note as well. But this is the problem. We don't get to go and look to somebody else and say: 'Hey, guys, it's not fair. They're not playing the game.' We're at the top of the tree. We sit at the top. It's up to us to do it. It's up to us to stand firm. The powers are there. They flow through from section 49 of the Constitution. There is no question. We know the House put a couple of journalists into Goulburn jail for a little while—that was, in my view, wrong. The power exists. The High Court affirmed that. The High Court affirmed that power. Just as the High Court in Egan v Willis affirmed the powers for us to produce documents. Just as, in Egan v Chadwick, the New South Wales Court of Appeal affirmed the ability to receive documents that were legally privileged. But it is up to us. I'm not saying the government's doing the right thing and I'm not saying the senior public servants are doing the right thing—they're in fact breaking the law—but we're not doing anything about it, and that needs to change.

Question agreed to.