Cory Bernardi (SA, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition) Share this | Link to this | Hansard source

I present the report of the Finance and Public Administration References Committee, Independent arbitration of public interest immunity claims, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

by leave—I move:

That the Senate take note of the report.

I would like to place on record that I found this a very interesting inquiry. It explored some important concepts which, at first blush, have a certain appeal. The idea around this is basically to have an independent arbiter to determine whether public interest immunity claims which government use to prevent tabling of documents or to resist orders of a parliament, usually an upper house, is a valid process for this place to consider. Indeed, some parliaments have this enacted—in Victoria, in New South Wales and, most recently, in the Australian Capital Territory. It does have an instant appeal because you think it is going to provide increased transparency which will mean that governments will not be able to hide behind what may or may not be spurious claims to withhold information from the transparency of the parliament. Having said that, it was the committee’s view—I note there are some other comments—and my view that the process of an opposition seeking to obtain documents from a government and a government claiming public interest immunity grounds for failing to release the documents is part of the combative cut and thrust of the parliamentary process, and indeed to allow an independent party to assess the validity or veracity of the claims of government may indeed ultimately compromise the operation of the executive. That came out through the process.

We discovered that in some jurisdictions where this process is enacted, and indeed under the proposal put before this chamber for the committee to consider, the independent arbiter who was appointed would not be able to look at the documents in question. So he just has to assess whether the government is telling the truth or not. An opposition can do that just as effectively. That was in the proposal for us to consider

Another aspect of it is that there is simply no meaningful penalty which this place, the Senate, could place on a minister in the other house who fail to comply, short of suspending a member of the government or the executive from this place for a period of time, which is what they have done in Victoria. It really makes it, I would guess, a toothless tiger.

I note in the dissenting report of the Greens—I am sure Senator Ludlam will have some comments on this—and Senator Xenophon, who joined the Greens’ dissenting report, they proposed amendments to amend some of the notable flaws in the proposal which was examined. Once again, I feel that the parliamentary process and the role and responsibility of this place, and the combative nature of politics, ensure a workable executive resolution. They ensure that public interest is served and that, where governments have been exposed as being deficient in providing adequate transparency the parliamentary system, they are held to account.

Other concerns raised were whether there was legal authority for the parliament to delegate certain powers. There was certainly some conflicting information given because Sir Laurence Street, who, I understand, acts as the arbiter on many occasions in Victoria, considers that he has delegated powers from the New South Wales Legislative Council; whereas, we were advised that it is specifically prohibited for the parliament to delegate powers. So there is an opportunity for a legal dispute. Frankly, I am not sure that our courts or our esteemed legal minds should be determining what is appropriate with the Senate dealing with the executive. I think that can be best resolved through the parliamentary process itself.

There is also the potential for misuse. We heard anecdotal evidence. Indeed, there was a reference to The Hollowmenit was described as ‘apocryphal evidence’—that cabinet documents are not able to be subject to this procedure and process. There was some suggestion that simply placing a pile of documents in a wheelbarrow and wheeling it through the cabinet room prevented them from being disclosed in this manner. Other suggestions were that, if in the event documents which were key to the function of government and perhaps commercial-in-confidence may be requested under this process but were of such sensitivity, some of the public servants may indeed be encouraged to provide only verbal advice rather than written advice. Once again the committee considered this an inappropriate avenue for this parliament and the independent advice of the Public Service to take.

In short, as I said before, at first blush, at first glance, at first consideration, while there is an appeal attached to having an independent arbiter, I feel that the proposal that was put for the committee to consider is flawed. I acknowledge that there are some steps and recommendations from the Greens and Senator Xenophon about how that can be improved, but I do believe that on balance it offers a number of potential consequences which are not worth this parliament taking. Clearly, others have a different view. But in the balance of considering that a government needs to be allowed to get on and govern, and an executive needs to have the right balance between accountability and transparency but also confidentiality, it is the committee’s recommendation that this proposal not proceed.

In concluding my remarks, this is my final inquiry as chair of the committee. I thank all of those who participated on the committee. I found it a very interesting inquiry to take place. I would also like to thank Stephen Palethorpe and the secretariat for their assistance, and all the witnesses who provided their time and their expertise. Many of them are very highly credentialled and whilst many of them were very supportive of the proposal they outlined a number of flaws in it. Indeed, some of those have been identified by the Greens and Senator Xenophon.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I was certainly interested to hear those comments and I thank Senator Bernardi for chairing that inquiry. I found it very interesting as well, possibly for some slightly different reasons. I want to provide a bit of context as to how this inquiry came about in the first place.

A couple of months ago—actually, probably nearly a year ago—Senator Minchin came to us and wanted to know whether we were interested in supporting a motion in the Senate that would prevent any debate on legislation related to the National Broadband Network roll-out until the government had handed over the documents involved in the $4½ billion request for proposals for the original NBN. The Minister for Broadband, Communications and the Digital Economy, Senator Conroy, had effectively crashed that tender and announced, with the Prime Minister, a project effectively 10 times the scale and that there would be no public release of the documents that had led to that decision being made. Senator Minchin’s contention—which after a bit of thinking we agreed with—was that it was in the public interest for those documents to be tabled, inasmuch as that was possible for the government, so that the parliament—and through us, the community—could make a decision as to the thinking and the decision making behind one of the largest public infrastructure proposals, if not the largest, that this country has ever seen.

Minister Conroy said, ‘I can’t give you those documents and I don’t need to provide any reasons as to why I can’t. They are commercial-in-confidence and you can’t have them.’ At that point you have a classic deadlock between the legislature and the executive. The executive, through Minister Conroy, was saying, ‘You can’t have these documents. I don’t have to provide you with a statement of reasons as to why, and there is just not a great deal that you can do about it.’

As a result, the cross benches, with the support of the government at the time, proposed this inquiry into what happens when the legislature and the executive are deadlocked in this way. It is a problem that has come up time and time again. That is why Senator Bernardi was sketching earlier that there have been some approaches in Victoria and New South Wales—and most recently in the ACT—to try to break this deadlock.

The current case might be about the NBN documents, and that matter is still unresolved. We have to take Minister Conroy’s word for it because the government is under no compulsion to hand over those documents. This proposal, and what the Finance and Public Administration Committee was required to look into, was a method for breaking this deadlock and other deadlocks like it which occur not often, but often enough to be a recurring theme: that the executive is able to basically able to say, ‘You can’t have that material and you just have to trust us as to why not.’

What Senator Bernardi did not mention was that every single witness who appeared before the committee on our one day of hearings, and every submission, was supportive of just such an instrument of the Senate and the executive agreeing that an independent arbitrator should be able to make the decisions as to whether—on sight of the documents or not—it is in the public interest for the material to be made public or not. Every witness was supportive—with the exception of officers from the Department of the Prime Minister and Cabinet, who had no opinions at all about anything. We heard from some of the best minds in the country—people intimately involved at a Commonwealth level or at a state level in Victoria and New South Wales with the way this sort of instrument has been operating elsewhere—and every one of them was supportive. They went to the trouble of pointing out the flaws in the draft motion which the Greens and Senator Xenophon have acknowledged in our dissenting comments. But they went one step further, none of which was picked up in the majority report of the committee, which was to provide the solution and amendments to the motion to actually make the system work.

Professor Anne Twomey, whose thoughtful comments were cited throughout the majority report as reasons to not proceed, and her evidence was leaned on very heavily in the draft that we received from the major parties, said that there were some problems; they were resolvable and reconcilable. I asked her, ‘Are you in favour on balance of an instrument like this operating?’ She said: ‘Well, yes. On balance I think it is a good idea. Despite all my complaints about the New South Wales system I think overall, in principle, it is a good idea. It has just not operated terribly well in New South Wales but I think it could operate better in the Senate.’ That quote did not make it into the final copy of the committee’s report because the major parties basically have agreed that in the matter of these kinds of deadlocks they would simply rather back down.

I would be fascinated to see Senator Minchin’s take on this when we come back, probably in a week or two, to debate NBN legislation that is actually not prepared to press the point and get the minister to hand over the documents to somebody independent, an umpire, that allows the Senate to then stand back and say, ‘Well, as it turns out the minister was right. It is not in the public interest for those materials, or part of those materials, to be released, so in that case we will back off. But at least it has been to an independent set of eyes and we are not having to trust Minister Conroy on this.’ As I recall, it is a matter of $4½ billion which has now been magnified 10-fold.

Every other witness had something similar to say. They made contributions on the problems and some of the issues that might arise if such a motion were to be carried and then they proposed solutions. For anybody who is interested in that, those solutions are now a matter of record because we have summarised them in the dissenting report. The chair, presumably with the collusion of the Labor Party members of the committee, could not be bothered to do just that—to show what the solutions are.

The majority report problematised the proposal that we put without making the obvious next step of improving the model. It is left to the cross benches to do that. I am very happy to do so but I have to shake my head at the failure of the opposition at least to take this opportunity to hold the government and the executive to account. Here is a golden opportunity right now to work constructively with the cross benches and government senators and government members to solve a longstanding issue of what happens when the legislature and the executive are deadlocked in this way.

We have learned enough from Victoria and New South Wales—both from what those systems have in common and from what they have in contrast to the Senate—to be able to propose a model that will actually be quite a good fit for current Senate practice and custom and to resolve the issues that the majority report identifies but then neglects to solve. One of the issues that was raised was hypothetical executive hostility: ‘The government won’t like it, so we won’t bother proceeding down this track.’ That is an extraordinary abdication of our responsibility as members of Senate committees—and I have seen them work much more collaboratively than this one did. We should go on the front foot and say, ‘Executive hostility is not an excuse to not proceed with this kind of instrument, because here is a way, actually, of breaking this kind of deadlock.’ Ironically enough, the majority report notes:

... the committee’s view is that more accountability benefits will be achieved when the Senate and the executive work together to develop mutually agreeable strategies for resolution of public interest immunity claims ...

And then they voted down and rejected an entirely workable strategy for doing exactly that. Hand these decisions over to somebody independent and we will abide by the judgements of that person in the form of an independent arbitrator.

There are a number of other proposals that the Australian Greens and Senator Xenophon have put forward in this dissenting report which would go, I think, quite a long way to easing the concerns that were raised by witnesses and the concerns that were raised quite justifiably by Senator Bernardi just then, who sat down before taking the obvious next step of proposing what the solutions would be. We have a pretty cut and dried example here of the major parties being at the behest of the executive—and for what reason the opposition takes this view I have absolutely no idea. I can understand the government taking this view but certainly not the opposition. If it falls to the cross-benchers to be the genuine opposition in this case then I am happy to step into that role. But this is an unnecessary squandering of a perfectly good opportunity to make some real progress on this issue.

To give you one example of the things Senator Bernardi said: ‘There is nothing in this motion that says that the arbitrator should be given copies of the documents in question.’ Granted. Understood. Let us change that in the motion. Let us not just sit down without proposing that as an obvious amendment to the motion so that we can move forward. I am really disappointed that this is the way the major parties have chosen to engage with this. I certainly will not give up. This is a long-running issue that has quite a bit of precedent behind it and no doubt much ahead of it. I think eventually we will—through some circumstances perhaps a bit more enlightened than what we are having to sit through today—resolve this issue in a manner that allows the Senate to do what it has obviously been designed to do. People who drafted the Constitution wanted this house to be able to hold the executive to account in exactly these kinds of matters. That is what we are here to do.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I endorse the remarks of my colleague Senator Ludlam. I signed off, along with the Australian Greens, with respect to this dissenting report. I must say that Senator Bernardi is known for his plain speaking on a whole range of issues. But on this one I must say that his handling and his justification for this particular approach, the approach of the committee, and effectively the approach of the opposition and the government in terms of public interest immunity claims are very disappointing. The fact is that the excuses given by the committee in its majority report not to act are just woefully inadequate. I think Senator Ludlam made reference to the committee saying, ‘We don’t want to cause hostility with the executive arm of government.’ That is just laughable. The role of the Senate, the house of review, is to appropriately and thoroughly scrutinise what the executive arm of government is doing. That is what we are meant to be doing. We are meant to be a watchdog for Australians in terms of the executive arm of government. When you consider what the committee has come up with, that is an abdication of the Senate’s responsibility in order to do what we are meant to be doing.

We need to also consider the context of why this committee reference occurred in the first place. Senator Ludlam has amply set that out in terms of the NBN and the fact that Senator Minchin, I believe quite appropriately, was pursuing further details from the government in relation to this. The fact that the government is not prepared to look at reform in relation to this area—and neither, it seems, is the opposition, despite the fact that this goes against its very interests in terms of what the opposition is trying to achieve in this context of the NBN documents—I think is something that will not be without consequences. I believe the government will regret taking the position it has in the context of further debates, in the context of the NBN, and in the context of the Telstra legislation.

The fact is that the expert witnesses before this committee made it clear that the proposal could be improved on, the proposal could be made workable, the proposal could be very effective. Associate Professor Twomey argued that the Senate had a greater chance of developing a cooperative model than New South Wales and Victoria because:

I think the Senate does show cooperation and has not taken things to an extreme, and that is probably one of the virtues of the Senate ... If, for example, the Senate does not receive the documents that it wants and it is unhappy about it, the strongest action it seems to have taken in the past is things like extending question time or making it difficult for governments to get their bills through on time. But it has not gone to the extent of suspending ministers and the like.

Associate Professor Twomey made it clear that there is a way forward; that the Senate, because of the way that the Senate functions in order for the Senate to do its business, relies on a process of cooperation and relies on a cooperative model; and that this would work.

The former Clerk, Harry Evans, was also confident that the requisite cooperation between the executive and the Senate could be achieved and discussed the incentives with the executive to cooperate with the proposed scheme. Harry Evans made the point:

I suppose the incentive for the executive government to agree to this sort of proposal is that it will avoid those constantly recurring cases in the future, which end up with the government being accused of engaging in a cover-up and the public not knowing whether it is a cover-up or whether it is not.

That, to me, is the key to this. This is about transparency. This is about multibillion-dollar contracts that affect every taxpayer. I see Senator Joyce is in the chamber as the shadow finance spokesperson. I have not had a chance to publicly congratulate him on his elevation. Senator Joyce has been consistently calling for the need for transparency to ensure that taxpayers get value for money in terms of deals that are done, that the process of spending is transparent and that we are not left with an unnecessary debt.

How are we supposed to do our job properly if public interest immunity is being used as a shield, as a cover, for decisions of government that could cost taxpayers many billions of dollars without the checks and balances that a process of independent arbitration of such claims can lead to? That is why with my colleagues the Australian Greens—and I am very grateful for the work that Senator Ludlam has done on this—I support a number of practical recommendations: that the information commissioner, should the Freedom of Information Reform Bill be passed, be required to report annually to the Senate on the veracity of government claims of public interest immunity, which implies that the commissioner has a role to look behind those claims of public interest immunity; that an independent arbitrator be appointed where there are disputed claims; that the Auditor-General provide independent advice if a claim involves commercial-in-confidence matters; that the President of the Senate may issue guidelines to the independent arbitrator setting out the manner in which the arbitrator’s discretion ought to be exercised; and, finally, that there be a scheme for resolving these disputes of public interest immunity with respect to Senate orders for documents.

These are practical measures. These are things that can work. We have heard from the expert witnesses that these matters are practical and can be implemented. Instead, the committee—the government and the opposition—in the majority report, in a hand-wringing exercise extraordinaire, is saying, ‘We can’t change things; we’ll leave things as they are.’ I think there are consequences for taking such a blinkered approach to such an important issue. If the government and the opposition think that is the end of it, then they ought to think twice, particularly in the context of the NBN legislation that will be coming up shortly. I seek leave to continue my remarks later.

Leave granted; debate adjourned.