Kerry O'Brien (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of Senator Ferguson, I present the third report of 2009 of the Procedure Committee on committee proceedings and public interest immunity claims, and senators caring for an infant.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

One of the core responsibilities of parliament is to scrutinise the activities and performance of executive government, in particular the way executive government spends public money. The Senate, of course, has a very particular responsibility in relation to that. We have significant responsibilities under our Constitution, and over the last 108 years the Senate practices and procedures have developed to ensure that the Senate is a very effective institution helping to hold executive government to account.

One of the core requirements for us to be able to do our job as senators in this chamber is that we can ask questions of government, and we are entitled to expect answers. We are able to ask for documents that are held by government, and we are entitled, indeed, to get access to those documents. The default position should be that, if in the context of Senate committee inquiries a question is asked of a public official or of a minister, the minister or official will answer that question or he will provide a particular document that is being asked for. That is the default position unless there is a justifiable and specified public interest ground as to why it would not be in the public interest for the minister or that public official to provide either access to that information or access to that document.

There has been a lot of confusion for the time that I have been in this place, whether it was confected confusion or real confusion, as to how some of the past procedures and principles of the Senate were to be applied in the context of Senate inquiries. Indeed, ministers have been confused, officials have been confused and chairs of Senate committees have been confused when the issue was raised that, if a minister declines to provide access to a particular piece of information then he has to, first, point to a recognised public interest ground and, second, make a statement of the reasons as to why it would not be in the public interest for that particular information to be provided.

The purpose of the motion passed by the Senate on 13 May was to set out very clearly the process to be followed by ministers and officials when they are in a position where they want to decline to provide access to information because they think that it might not be in the public interest for that information to be provided. Of course there have been over the last 108 years a number of recognised public interest grounds that have developed. I will just read them back into the record. They include that, essentially, if there is a prejudice to legal proceedings, if there is prejudice to law enforcement investigations, damage to commercial interest, unreasonable invasion of privacy, disclosure of executive council or cabinet deliberations, prejudice to national security or defence, prejudice to Australia’s international relations, and prejudice to relations between the Commonwealth and states. If there are any of these then the government may be able to claim proper public interest immunity as a reason not to provide access to a particular piece of information. The problem is that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity and, indeed, chairs of Senate committees have not always been as enthusiastic as they should have been in enforcing that particular requirement.

I am just going to reflect on some of the experiences that I have had, and point to one other experience. During Senate estimates I asked an official from the Department of the Prime Minister and Cabinet whether advice had been provided to the Prime Minister in relation to the alcopops tax measure. I was given a number and in a particular period of time seven pieces of advice have been provided. I asked whether that advice had been part of the cabinet deliberations or whether it was routine advice to government. It was not part of the cabinet deliberations. Okay, so there was one public interest ground that was excluded. The question then was: can we have access to copies of that advice? The answer was, ‘No, it’s advice to the government,’ and the question was ultimately taken on notice. Still no answer has been provided to this day, and no reason has been given as to why it is not in the public interest for the Senate committee to be given access to that information. I asked Senator Faulkner, who supposedly is in favour of openness and transparency in government, what the recognised public interest ground was. Why is it not in the public interest for the Senate to be given access to that particular piece of advice? He was not able to point to any and he did not even try. The question arises: would it put our national security at risk? Is there an infringement, or would it prejudice legal proceedings or law enforcement investigations? Which one is it? There is not one.

Of course, I had an even worse experience with Senator Conroy. There is quite a serious issue at play, and I really urge every individual senator to reflect on this quite carefully. The Leader of the Opposition announced in his budget reply speech an alternative savings model to take the place of Labor’s broken promise on the private health insurance rebate. The Leader of the Opposition quite constructively and positively proposed instead that the excise on tobacco should be increased by 12½ per cent. Clearly the government sought advice from Treasury on that and, as part of a political exercise, that Treasury advice was released to the media on 17 May. The media spontaneously went out and reported it, and, essentially, the purpose of the government was to discredit the very constructive and positive alternative proposal made by the Leader of the Opposition. When we asked questions in Senate estimates whether we could have access, as a Senate committee, to a copy of that same advice we were told no and it was taken on notice. To this day it has not been provided. I think that is a complete disregard of the Senate. If a copy of a piece of advice can be handed to the media, what possible public interest can there be for a copy of that same piece of advice not to be provided to a Senate committee, which is there to scrutinise the activities and performance of the government, and which is there to scrutinise whether the public expenditure is appropriately effected.

I will point to one more example before concluding my remarks. Senator Coonan asked a question of Dr Ken Henry, ‘When did you first become aware of the government’s infamous $43 billion National Broadband Network plan?’ He refused to answer the question following which Senator Bushby asked, very sensibly and in complete compliance with the order passed on 13 May, whether he was claiming public interest immunity and, if so, on which ground was he basing his public interest immunity claim. Senator Bushby asked him to give us a statement of reasons. He said, ‘No, I’m not claiming public interest immunity; I’m just not answering your question,’ without giving any sort of reason whatsoever. These examples demonstrate complete arrogance. This is not the open and transparent government that we were promised by the Rudd government before the last election. This is secretive government at its worst. It is fair to say that officials are obviously being protected by senior ministers in this government. Ministers are treating this Senate and the Senate committee system with complete disregard—dare I say, with contempt. I really urge all senators to have a very close look at the report of the Procedure Committee. Clearly, it was never the expectation that a very bad culture that has become entrenched in this current government, of not wanting to reveal information, would be changed overnight. I believe that the order that we passed on 13 May will continue to do its work. Hopefully, it will over time continue to encourage officials and ministers to reflect very carefully on their obligations to be accountable to the Senate and, through the Senate, to the Australian people.

I would suggest that the Clerk of the Senate be asked, and be required, to make regular reports to the Senate on how this order operates after each Senate estimates period so we can reflect on, observe and monitor how the implementation of this particular order is progressing as we move forward. Indeed, I think these regular reports should perhaps be provided after each estimates for a period of up to five years. Hopefully, by then everyone will understand what the requirements are and everybody will understand that government should provide access to information and documents unless there is a recognised public interest ground as to why that should not be the case. I am sure that we would have significantly better government for it. Open government makes for better government; secretive government makes for bad government. This government are a very secretive government irrespective of what they tried to make people believe before the last election.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I agree with much of what Senator Cormann has had to say on the Procedure Committee report. If he would like to present the Senate with a request for the clerk to review, after each committee sitting, those cases in which there has been a claim of public interest by ministers or others when not answering questions before Senate committees, we would look at that very favourably. The report indicates that there are de facto or real claims of public interest made quite frequently. That situation is not confined to this government. It was a hallmark of the proceedings of the last government. I think the Senate ought to take a much stronger stand to ensure that it is informed about issues and is not simply fobbed off by claims of public interest. Indeed, I do not know of any contingency whatever in a representative democracy whereby a matter should not be revealed to a Senate committee which, if necessary, goes in camera. If there is such a case which does not flout the principle of democracy representing the people in which the parliament is supreme, I would like a senator to state what it is. We are a long way short of that mark. As Senator Cormann said, we ought to be reviewing this.

When you look at the American committee system, for example, you see there is much more incisive questioning of and answering by witnesses without resort to claims of information needing to be in confidence, which we see in our parliament, and I do not think the American Congress is a paragon when it comes to that. I reiterate that in a representative democracy it is not the government or the executive but the parliament which runs the affairs of the country and the parliament cannot do that if it is denied information. Let me say that once again: it is not the executive or the cabinet but the parliament which, in our representative democracy, has the burden of running the country. Where it is denied information in its deliberations, that ideal is being eroded. Once again, if there is information that is sensitive then let the committee system resort to going in camera so that the representatives can be informed and make up their mind not without the information but while taking into consideration that they have information that should not be divulged in the public arena because it might not be in the public interest. The dividing line as to having information is not across the committee. The dividing line is between the parliament and the public, and the parliament has a very big responsibility in adjudicating where that line should be. It should not be up to a witness or a minister to arbitrate on that matter.

The second matter dealt with by this report is under the heading, ‘Senators caring for an infant’. This matter came out of Senator Hanson-Young bringing her child into a recent sitting of the Senate and being asked by the President to have the child removed. I moved that the committee look at changing paragraph (3) of standing order 175, which says that nobody else other than senators should be in the chamber. Paragraph (3) says:

(3) Paragraph (2) does not apply in respect of a senator breastfeeding an infant.

I moved that it include at the discretion of the President a senator caring for an infant briefly, providing the business of the Senate is not disrupted. We are all human beings and there is not anybody that I know of here that believes children should intrude into the business of the Senate, certainly not in any way that is going to disrupt it. But there are exceptions to every rule. We looked at the record. There are at least a dozen occasions when, with no interruption of and with no hazard to the proceedings of the House of Representatives or the Senate, children have been briefly present.

One of those times was a memorable occasion when a very esteemed and long-serving conservative senator had a grandchild with him as eulogies to his service in this place were read out. It was a very happy occasion. Well, this Procedure Committee report puts an end to that. You cannot deprive the President of an opportunity, brought forward here, which would explicitly codify the President’s right to use his or her common sense in the circumstances that occur in the chamber, to permit such an event happening again. Effectively, the committee’s decision, if it is upheld, will prohibit children being present, under any circumstances, in the chamber.

I again say that we are human beings. I think it is a bad ruling. I have had my opposition to it recorded. I am an absolute defender of the right of the Senate to not have its procedures interrupted by anybody else but that is not the case at point here. The case at point is treating each other as human beings and making sure the Presiding Officer has the facility occasionally to levy common sense, when it is not to the detriment of the Senate at all. That has been ruled down by the majority of this committee. It is a mistake, and I think we will live to regret it. I seek leave to continue my remarks at a later time.

Leave granted; debate adjourned.