Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

Mr Deputy President, I make a statement in regard to the order dated 9 November in which the Senate sought all recommendations of the Australian Network tender assessment panel, the legal advice that the government considered when making the decision to terminate the tender process due to the significant leaks of confidential information to the media—

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Conroy, you need leave to do this.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I seek leave.

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

We accept your resignation.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

As gracious as always, Senator Bernardi.

Leave granted.

The Senate also sought the legal advice from the Department of Foreign Affairs and Trade to the Minister for Foreign Affairs regarding how the Australia Network contract should be awarded.

The government considers that it is not in the public interest to publish these documents. Disclosing the deliberations and recommendations of the assessment panel would disclose a significant amount of commercially sensitive material that was provided in confidence by the tenderers. It is contrary to accepted Commonwealth practice to disclose the information in tenders submitted by unsuccessful tenderers. The publication of the Department of Finance and Deregulation Guidance on Confidentiality in Procurement dated July 2007, available on the department of finance website, states as follows:

For probity, agencies must ensure all submissions are treated as confidential for the duration of the procurement process. Similarly, all unsuccessful submissions should be kept confidential after the award of the contract.

Public disclosure of commercially sensitive information of unsuccessful tenderers would be a major departure from longstanding Commonwealth procurement process. It would undermine the confidence that potential participants in future procurement processes may have in the security of their commercial information. Furthermore, any future tender for services related to the Australia Network would run a very significant risk of being comprised because potential tenderers whose commercially sensitive proposals had been made public would be subject to an unfair advantage.

In taking the decision to terminate the tender process, the government took into account advice provided by the Australian Government Solicitor. I have referred to that advice to confirm that the government took appropriate advice and to assist in explaining the government's reasons for taking this decision. It is the practice both of this government and former governments not to release the Commonwealth's confidential legal advice in response to orders for the production of documents, and it would not be in the public interest to do so here. In relation to the advice provided to the Minister for Foreign Affairs, I am advised that it contains commercially sensitive material and forms the basis for deliberations in cabinet. For these reasons, the government considers it would be contrary to the public interest to release those documents.

I would just add one further piece of information. I have consulted my records and, in relation to a question from Senator Sinodinos, I also consulted the Cabinet Secretary, Mr Dreyfus. As to the timing, I will shortly confirm when the advice was received.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

I seek leave to take note of the minister's statement. As I was out of the chamber at the time and do not have a copy of it, I only have certain details of what he said. Is it possible to do that in a brief moment?

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Yes, it is.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I say no.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Birmingham, leave is being denied for taking note. I see that you now have copy of the document.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

In that case, I seek leave to make a short statement in relation to the ministerial statement.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Leave is granted for five minutes.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

We have here an example of Senator Conroy refusing to live by the types of standards that he used to call upon from others. The Senate passed a resolution yesterday asking for certain documentation to be tabled and made available to it. The Senate, with the support of the coalition, the Australian Greens and the crossbenchers, passed a resolution seeking some fairly simple and straightforward information. We wanted to see information regarding the advice the Department of Foreign Affairs and Trade gave to Mr Rudd prior to the initiation of the Australia Network tender. We wanted to see the reports of the independent evaluation board, the tender evaluation board, provided to Mr Rudd or Senator Conroy in relation to either the first incarnation of this tender or the second incarnation of this tender. It is pretty straightforward information that the Senate sought.

So, firstly, I note that time would not have been a factor in this. We were specific rather than broad-ranging in our requests, and I note that the motion was passed in the Senate not just with the support of the coalition, not just with the support of the crossbenchers, but, to get passage through the Senate, with the support of the Australian Greens as well, which demonstrates the broad concerns that are held in relation to the handling of this corrupted tender process. We sought those documents for fairly clear and specific reasons. We sought the documentation in terms of the advice provided to Mr Rudd prior to initiating the contract because of serious reports indicating that the Department of Foreign Affairs and Trade actually advised Mr Rudd not to go down the tender path but to instead renew the ABC's contract. In fact, the government, who it seems are now bending over backwards and corrupting all sorts of processes to keep the ABC in this contract, could have spared themselves all this grief, all this pain, had they simply accepted the advice of DFAT in the first place. But Mr Rudd refused to accept that advice because he obviously wanted to change things.

So then we sought the documentation, the reports of the independent tender evaluation board, as provided to either Mr Rudd for the first incarnation of the tender or Senator Conroy for the second incarnation of this tender. We sought that information because it has widely been reported—and Senator Conroy has effectively confirmed in this place that the reports are correct—that on both occasions the four departments involved in the independent tender evaluation board all recommended that the Sky bid be adopted.

Yet on both occasions the government has found a way and an excuse to get out of accepting that recommendation. Firstly, they suddenly said that issues in the Middle East were so significant that they needed to change the tender—and miraculously at that time they needed to strip the tender away from Mr Rudd and give it to Senator Conroy. And the second time around they said the leaks themselves were a reason to end the tender process. But it would appear that it has been a month or more between Senator Conroy getting advice from the tender evaluation board and axing the tender. So he had plenty of time to start the negotiations he referred to in the chamber today and to conclude those negotiations and do a deal with the successful tenderer—if that is what he wanted.

But quite clearly that is not what he wanted. Senator Conroy, the Prime Minister and the majority of the cabinet clearly had a predetermined outcome from this tender in mind and they have been unwilling to accept the fact that the independent evaluation board came up with the other option, that the independent board recommended Sky instead of the ABC. The government should come clean. If they wanted the ABC all along, they should simply say so and acknowledge the fact that they stuffed Sky around, at great time and expense. They should come clean that they have cost the Australian taxpayer, at great time and expense. And Senator Conroy should come clean that it has been all about not letting Mr Rudd have his way and that, once again, the government is keeping secret the sort of documentation it used to call to have released. (Time expired)

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

I seek leave to make a brief statement on this matter.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Leave is granted for two minutes.

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

I want to add my remarks to those of Senator Birmingham, who has expressed adequately our concerns not only in this particular instance of the Minister for Broadband, Communications and the Digital Economy refusing a very direct and very reasonable order of this chamber but also on the broader principle of ministers reading brief statements to effectively tell the Australian Senate, which passed by majority an order for these documents to be produced, that we cannot have them and that it is just too bad.

This is a matter that this parliament is yet to resolve. When there is a clash between the executive and the parliament over the production of documents, we are left with no recourse. This is something that I have had a strong personal interest in over the last couple of years: the unresolved matter—which has been resolved in other parliaments, including other Australian parliaments—when there are orders for documents, which do not come lightly, and they are not produced. The Australian Greens certainly do not support orders unless they have merit, because we realise it is a very significant thing to do. For the minister to simply stand up and say, 'You can't have it, here are my reasons, and if you don't like them that's too bad,' is not good enough. This needs to be resolved.

Two parties went into the tender process in good faith. I can understand why Sky would be particularly aggrieved by this decision, which appears to have been a shambles from the beginning. Senator Birmingham addressed in some detail the various theories that are running around the building as to why this matter was terminated, where the leaks came from and so on. To be honest, I could not care less. My concern is that this matter should never have been put to tender in the first place; this is a function that properly should remain with the ABC, our national broadcaster. I have introduced a bill to make sure that that happens, and in the early part of next year I look forward to that gaining the assent of this chamber.

I would like to put Senator Conroy on notice that this matter will not rest here. I think this parliament and the Australian community and the parties to that tender are owed more than explanation that we just got.