Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

by leave—I move:

That the Senate take note of the correspondence from the Australian Information Commissioner which was received on 23 December 2010 and 3 February 2011 and tabled today.

I am very disappointed to have to move to take note of the correspondence from the Information Commissioner responding to various orders that have been passed by this Senate. We have asked him to make an assessment and report back to the Senate about the government’s refusal to release information in relation to a number of matters. Mainly the Senate was seeking some detail which the government is refusing to make public in relation to the mining tax and some detail the government is refusing to make public in relation to the proposed GST clawback as part of the broader health package.

Of course, our grief here is with the government. We do have a very secretive government. Contrary to the promises that were made by the Prime Minister after her re-election, this government has actually become more secretive instead of becoming more open and transparent. This government has now made it a practice to refuse to provide information without following the proper processes in our standing orders. For example, if the government want to refuse to provide information, they are required—and they well understand this—to point to a public interest reason as to why release of this information is not in the public interest, and they are required to provide a statement of reasons.

This has been quite a frustration for the Senate under this government for some time. I congratulate the Greens and Independent members Tony Windsor and Rob Oakeshott in the lower house for having tried to come up with a process to resolve this. The proposal was that, where there are disputes between the executive government of the day and the houses of parliament about release of information, the information commissioner would review the circumstances, provide a report and, if necessary, arbitrate on those disputes. We have now been told by the Information Commissioner that he is not able to do any such thing.

I will make some observations, but before I do I will thank the Clerk of the Senate, Ms Rosemary Laing, who has been excellent in providing me with advice on these matters. The first thing to note is that the Information Commissioner appears not to appreciate that the houses of the Commonwealth parliament have powers that exist independently of his individual statute. The reason these powers are not constrained by the individual statute is simple: section 49 of the Constitution confers certain powers on the houses and requires that any modification of them be made by statutory declaration—that is, by legislation. The Australian Information Commissioner Act does not contain any modification of those powers. Therefore, the powers of the Senate in section 49 of the Constitution apply to the Information Commissioner, who seems to be basing his reluctance to comply with the Senate’s orders on the absence of specific legislative authority for him to respond. This is a misconception. I note that there have been some suggestions that legislation should be introduced to deal with these matters. I am personally very concerned about that, because if the parliament were to pass such legislation then it would be a recognition by the parliament that the executive government has more power than it should have and that the parliament has less power than we currently have under the Constitution. So I would like to continue to work very closely with the Greens in this chamber to resolve this, in particular Senator Ludlam, who I know has taken a very close interest in these matters as well.

The reality is that each house of the Commonwealth parliament undoubtedly has the power to order the holders of offices that the parliament has created to produce documents. Furthermore, the formulation or publication of a document pursuant to an order of a house is explicitly defined as a proceeding in parliament under section 16 of the Parliamentary Privileges Act 1987 and therefore absolutely protected by parliamentary privilege. I guess it is possible—who knows?—that the Information Commissioner is somehow worried that the government may take action against him if he were to comply with these orders of the Senate. On the contrary: he is more at risk of action being taken by the Senate for his not complying with the orders.

I think it is important to note that there are only very few cases in which the parliament has chosen to limit its powers with respect to offices that it has created. One such case, of course, concerns the Auditor-General, where there is an explicit limitation. My advice from the Clerk of the Senate is that the Senate Standing Committee of Privileges has conducted a long campaign to improve the standard of knowledge and awareness of parliamentary matters among senior public servants and statutory office holders. I recommend that the privileges committee has another look at this and considers stepping up that campaign yet again.

The other important thing to note is that under previous governments of both persuasions—Labor or coalition, whether it was the Keating government or the Howard government—statutory agencies like the Office of the Australian Information Commissioner or like the Productivity Commission, for that matter, did comply with these sorts of orders. I will seek leave to table a document which the Clerk’s office has very kindly prepared for me. I now seek leave to table a document which was previously circulated in the chamber to various groups.

Leave granted.

I table this document and draw the attention of the Senate to a whole series of precedents in which the Senate has passed orders and statutory agencies have complied with these orders. During the time of the Keating government, back in 1992, then Senator Harradine initiated an order seeking a statement by the Auditor-General on matters relating to Australia Post. It was agreed to by the Senate, the document was tabled and subsequently the motion was removed from the Notice Paper. Senator Spindler sought a report in relation to leases in the Casselden Place building in Melbourne. It was agreed to, documents were tabled and the order was removed from the Notice Paper. That was in the time of the Keating government.

Going forward into the time of the Howard government, Senator Murray sought a report by the ACCC, a statutory agency, relating to grocery retailers. The motion was agreed to by the Senate, the document was tabled and the order was eventually removed from the Notice Paper. Then Democrats Senator Allison sought an ACCC report on tobacco and health related issues—the same thing occurred: the order agreed to, documents were tabled and the order was removed from the Notice Paper. Senator Conroy, now the Acting Leader of the Government in the Senate, in opposition back in March 2002 initiated a motion which was passed by the Senate directing certain officers of the Advisory Board of the Australian Office of Financial Management to appear before the Economics Legislation Committee and to provide relevant documentation relating to foreign currency. After the Senate agreed to this order, the documents were provided to the committee as requested. Again, Senator Allison sought documents and information from the ACCC in relation to tobacco companies. The documents were tabled and the order was removed from the Notice Paper. Senator Conroy, again, later sought a report by the ACCC relating to a competition notice issued to Telstra to be provided on a confidential basis to a particular committee. The motion was agreed to on those terms, it was complied with and the notice was removed from the Notice Paper.

In more recent times there have been some precedents too. Senator Xenophon initiated a reference to the Productivity Commission requiring modelling of alternative emissions trading schemes. It was agreed to by the Senate, some documents were presented out of sitting, some other documents were tabled and there is at present partial compliance. Senator Fielding sought reports by the Australian Securities and Investments Commission and the Future Fund Board of Guardians relating to disposal by the Future Fund of shares in Telstra. The order was complied with and the motion removed from the Notice Paper.

There is a whole plethora of examples. I guess what I am concerned about is that since Julia Gillard became Prime Minister we have had a number of examples of statutory agencies like the Office of the Australian Information Commissioner and the Productivity Commission saying that these sorts of referrals have to be initiated by the minister; that somehow the Senate or the House of Representatives does not have the power to seek the information that we have been seeking for a very long time. Governments of both persuasions, Labor or coalition, and statutory agencies under the administration of previous governments have complied with the orders. This government is going down the path of becoming more secretive, not less secretive. A secretive government makes for bad government, and we have seen a lot of that over the past three years.

The job of this parliament, and the Senate in particular, is to hold the government to account. To be able to hold the government to account we have to have access to information and these processes have to be respected by the government. It is time that Julia Gillard, as Prime Minister, listened to her own advice and started to let the sunshine in. It is also important that this Senate enforces its intentions with these orders. We can refuse to pass legislation. If we do not think we have got the information we need, we can refuse to deal with the government’s relevant legislation. (Time expired)

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

I will probably pick up in more or less the same vein as Senator Cormann. People by now are probably quite well aware of the issue that is at stake here, and that is what we do when the executive and one of the chambers of parliament disagree about whether it is in the public interest that particular material be tabled and put into the public domain. We have processes under freedom of information legislation that apply to journalists or members of the general public who are seeking to get information, but what happens when one of the chambers of the parliament is seeking information and a minister of the Crown decides that it is not appropriate for it to be handed over? At the moment the remedies that the parliament can pursue are actually quite severe. In Victoria, for example, ministers have been prevented from entering the chamber and it has become a bit of a debacle.

The remedies that the Senate can choose to pursue are equally severe, but I am not aware of any instances in which either house of parliament has, when push has come to shove, used its considerable powers to compel a minister to hand over a document or suffer some kind of sanction. We do have that ability. It is just, to my knowledge, unheard of that such a motion would be passed by the chamber. What eventually happens in practice is that the parliament backs down. We have seen documents—in the case of the NBN, a couple that I have been tracking most closely; Senator Cormann has a number and the Greens have a number of others—that ministers might have quite legitimate reasons to preclude from putting into the public domain, but we have to take their word for it. On no occasion that I am aware of has parliament pushed the issue and said, ‘No, hand those documents over or suffer some kind of sanction.’

This is quite a sensible proposal. Senator Cormann is referring to something that has been operating in the New South Wales parliament for 10 years or so relatively well. It has not been without problems but it has worked. It has not worked very well in Victoria because the executive—and maybe the new Victorian state government will have a different view—has opposed the idea of an independent umpire. When we are deadlocked, when we make an order for production and the minister says, ‘You can’t have it,’ our proposal is that the matter be referred off to the Information Commissioner, a newly established office, to make the call and then both sides of the argument would respect that call. But the parliament will not pursue its remedies if it turns out that, in the view of the Information Commissioner, it is in the public interest that the material not be disclosed either in full or in part.

We think that proposal is entirely sensible. We would be willing to respect the role of the umpire if the system is set up appropriately. I trust now that, on the basis of a negotiation signed between the Australian Greens and the Prime Minister, the government feels the same way. It is ironic that Senator Cormann, who puts these arguments with quite a degree of clarity and obviously great sincerity, comes from a tradition of a government that turned its back on just such an initiative for the previous 13 years. It is not that this is a secretive government; it is that government is secretive. It does not really matter who is in the chair. It does not really matter who is on the ministerial benches. The executive will seek to preclude this information for reasons understood by themselves. I believe it is the job of the rest of the parliament, when we feel it is in the public interest for this material to be produced, to do so. It is not something that has to do with the Labor Party or the Liberal Party or whoever. If we had had Green government for the last century, perhaps we would be running the same argument as was run by the major parties. No, Senator Siewert disagrees with that, but perhaps I am just a little more cynical.

Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

I am with you.

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

It is something about the nature of power. It is also something that we can improve. This is a mechanism that the Australian parliament needs. We are in negotiations with the government over this matter, as we are in a number of other matters that relate to the agreement that was signed with the Prime Minister by Senator Brown. I am therefore not in a position to really update the parliament as to how that is going, except to say that negotiations are underway. However, we are hopeful that there will be some kind of sensible outcome that will see the Information Commissioner take up this role.

As for the issue that Senator Cormann raised about whether we would pursue a legislative path or not, I think the senator has raised an extremely important issue. That is, if we go down this track, are we in fact closing a very important argument about whether parliament has this power to request an officer of the Public Service to undertake a certain function? I respectfully disagree with the views of the Information Commissioner. I think this chamber’s clerk has the correct view, based on a longstanding Senate precedent, that a resolution of the Senate actually carries that kind of compulsion that is not an unreasonable request. The Information Commissioner has respectfully disagreed with the view. We think this needs to be solved before too many more orders for production of documents pile up on the Information Commissioner’s desk or lie here gathering dust, as some of those relating to the NBN have for a period of nearly two years. We think this can be brought to a sensible conclusion. I look forward to the concurrence of all parties and I hope that this is something that we can resolve. I seek leave to continue my remarks later.

Leave granted; debate adjourned.