Mathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | Link to this | Hansard source

In relation to the Senate order for the production of documents in general business notice of motion No. 1121, moved by Senator Rice and agreed by the Senate yesterday, I confirm for the Senate again, consistent with my letters to the President of the Senate of 19 September, 20 September and 16 October, that the government maintains its public interest immunity claim over the document referred to in the motion, on the grounds that this document informs and is the subject of cabinet deliberations which have not yet been finalised. The Ruddock report was commissioned by cabinet for the express purpose of informing cabinet deliberations in relation to a range of matters related to religious freedom. It was provided to the government in May. In due course, cabinet will finalise its response to the report's recommendations. As such, the deliberative processes of cabinet in relation to the report provided to the government by the expert panel have yet to be completed.

I hasten to add, again, that the deliberative process of cabinet does not just commence with the consideration by the full cabinet of a final submission with a final set of recommendations. The deliberative process of cabinet actually begins with the relevant minister or ministers putting together a draft submission, and the work leading up to the putting-together of a draft submission, which ultimately is destined to be considered by cabinet. Clearly the document referred to in the motion is the central input into a deliberative process of cabinet. While the report and the response have not yet been considered by the full cabinet, the report has already informed and continues to inform the deliberative process of cabinet. As is well recognised in the Westminster system, it is in the public interest to preserve the confidentiality of cabinet deliberations, to ensure the best possible decisions are made following thorough consideration and discussion of relevant proposals within cabinet. The release of this document at this time would harm the public interest, in that it would interfere with the deliberative processes of cabinet and good decision-making.

The government will release the report in due course, following proper consideration of its recommendations by government through the deliberative processes of cabinet. Indeed, we will release the report together with the government's response to it. I would also, again—as I did earlier in the week—refer the Senate to section 125(a)(iii) of the Cabinet Handbook, which makes clear that cabinet documents are any material, relevantly, that is prepared for the purposes of informing the cabinet. For example, it says they include:

Any other papers prepared for the consideration by or for the information of ministers in a Cabinet or committee meeting, such as letters or reports, regardless of whether these documents are circulated in advance of the meeting or provided in the Cabinet Room …

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I move:

That the Senate take note of the minister's explanation.

What a farce. Here we have a review that, yes, was commissioned by government almost a year ago—11 months ago—and given to the Prime Minister on 18 May, which was a full five months ago. It's a report where the key recommendations are now in the public domain, and yet the minister is continuing this nonsense that, for some reason, it's not in the public interest to release the full report. There are no public interest immunity grounds as to why this report shouldn't be released. In fact, there are strong public interest grounds as to why the community deserves to see the background deliberations behind the recommendations which are now in the public domain.

Going to the minister's response and the issue of whether it should be held onto or whether they're actually hiding it—particularly whether they're hiding it before the Wentworth by-election on Saturday—it is ridiculous to say that, by releasing this Ruddock review into religious freedoms, it's going to interfere with cabinet deliberations. The statement is that it would harm the public interest in that it would interfere with the deliberative processes of cabinet. How ridiculous can you get, given that the key recommendations are already out there in the public domain? The Ruddock review is not cabinet deliberations; it is an input into those cabinet deliberations, and there is no need for it to continue to remain a secret document.

We know that having public debate on this review has the potential to influence cabinet deliberations. That is absolutely clear. But the farcical situation we're in, of course, is that that public debate is raging all around us, and, particularly because the recommendations are now in the public domain, we know that public debate is influencing cabinet deliberations on this very issue. We know that because we have got the government, the Prime Minister himself, saying that they're rejecting two of the key recommendations and that they now want to move to remove discrimination against LGBT children in schools—they want to remove that ability to discriminate against children in schools. We know that the recommendations of this review are, in fact, influencing cabinet deliberations, so it is ridiculous that we can't actually see the full report so that we can have more informed public consideration, which I'm sure would further influence cabinet deliberations.

The fact that we aren't able to see this report because it would interfere with the deliberative processes of cabinet does not stand up to scrutiny. It is influencing the public debate; it is influencing cabinet. We have got a situation where, just yesterday, we had a petition from GetUp! with 28,000 signatures calling upon the government to protect the rights of LGBT children, teachers and staff in schools. The Greens have got an online petition that's got almost 10,000 signatures. Advocacy group just.equal have a petition that's got almost 7,000 signatures. There is huge public interest in this issue, and rightly so.

The Ruddock review, and then the leak of these recommendations, has shown just how concerned people are about these issues—how concerned they are about discrimination against lesbian, gay, bisexual and transgender children; and lesbian, gay, bisexual and transgender teachers and other staff in schools. There is only one reason why this document is not being shared with the community now, and it's not because releasing it now would have the potential to influence cabinet deliberations. It's because they do not want the public to see the full body of this review before the Wentworth by-election; before the voters of Wentworth go to the polls. As part of their deliberations into how they are going to vote, the voters in Wentworth deserve to know where the government's thinking is on how much they want to continue discriminating against LGBTI Australians.

There are some worrying recommendations in the Ruddock review, which we have now seen courtesy of the leak to the Fairfax Media. There is the recommendation to continue discriminating against LGBTI students. But the review is not only recommending that not only should we be protecting people's ability to have a religious belief—and the Greens absolutely support having religious belief as a protected attribute in our anti-discrimination laws—but recommending that we should be protecting religious activity as well. Who knows where that religious activity would go? That's just what we're talking about: does religious activity enable the community, on the grounds of religion, to discriminate against people on the basis of their sexuality or their gender identity? This is very concerning.

The public needs to know what discussion there was in the review about this issue of how far religious activity should be protected. From the Greens perspective, we say, if you're going to be protecting religious activity, you've got to know when that religious activity becomes discrimination. Our view is that you need to have a charter of rights to be able to decide where one person's religious freedom becomes another person's discrimination.

These are important issues, and it is urgent that we act on them. Not acting on them now—not releasing this report—is playing with people's lives in a panicked attempt to hold on to the seat of Wentworth. This report should be released immediately, and we should be legislating immediately, as the community wants. We've got the ability to legislate immediately. Yesterday, the Greens introduced a bill that would remove discrimination in our schools completely. It would remove discrimination against LGBTI students and LGBTI teachers and other staff. We have the opportunity this week in the Senate to legislate. I call upon the government and Labor: if this is so critical and important, as we have now heard them say it is, let's take the opportunity of legislating to remove that discrimination this week. We could do that today. We could stop playing with people's lives. We could remove this discrimination. Now that the community has heard about it and is outraged about it, we could say, 'Yes, we hear your outrage.'

Prime Minister Scott Morrison yesterday said that we need to act 'today', that we need to deal with this issue once and for all, that we need to act right now. We've got the opportunity to do that. We're in control here in this Senate of what we can legislate on. We've got a Greens bill that was introduced yesterday. We could be debating that. We could be moving that and actually turning what are now words saying that we need to end discrimination into real action. We need action on all fronts. We need urgent action, because while these discriminations are still in place and while this debate is ongoing it's basically playing with people's lives. It's a bit of deja vu with the marriage equality postal survey debate that we were having a year ago. LGBTI Australians are still being treated like political footballs. It's just not good enough. We have got the opportunity to end this, to say that we value LGBTI Australians. We know that it's important that they're not discriminated against and that they are valued as much as every other Australian, rather than being played like political footballs. Let us act. Let us remove discrimination, and actually say to every LGBTI student and every LGBTI teacher and other staff member in schools: 'We value you. We know that you are as valued and you are as loved as every other member of your school community,' and say that we recognise that the discrimination that's currently there is unacceptable. We can act, and we could act today to remove that.

I call upon the government to release the full Ruddock review into religious freedoms and then to take the next step and move this week, before the Wentworth by-election, to join the Greens to debate and then legislate to remove discrimination against all lesbian, gay, bisexual, transgender, gender diverse, intersex and queer Australians.

Don Farrell (SA, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I also seek to speak on this motion to take note of the minister's explanation. I indicate that this is now the third time that the Senate has requested the government to release the Ruddock report into religious freedoms. Although Senator Cormann is claiming public interest immunity under the Westminster system to prevent the release of this document, there is an equally important Westminster tradition, and that's the right of the Senate to make these decisions to request this information. This is now the third time that the Senate has done it and it's the third time that the government has refused to release the document.

It beggars belief that the government could claim that there is public interest in keeping this issue under wraps when of course we have read in The Australian and The Sydney Morning Herald the recommendations of this report. Somebody in the government wants this document out there, because somebody in the government has released this document to journalists with those two newspapers. If it's good enough for whoever has had access to this document to release it to the newspapers, why is it not good enough for the government to release it to the Senate and then release it to the Australian people? Why is the government seeking to hide behind public interest immunity when the reality is the document has already partly been released?

There is a debate raging in the parliament and in the community about the contents of this document, and yet we don't see it. One reason I guess we might not be given this document is the fact that in three days time there is going to be a by-election in the seat of Wentworth. Malcolm Turnbull was unceremoniously removed from the position of Prime Minister. He has been replaced by Scott Morrison. Scott Morrison is wanting to hold onto his slim majority in the lower house. The government are afraid that, if they release this document and the community gets to see the contents of this document and have a debate about the issue of religious freedoms, that will result in their candidate, Mr Sharma—in fact, he wasn't Mr Morrison's candidate; Mr Morrison wanted another candidate—losing the seat of Wentworth and, as a result of that, the government losing their majority in the lower house. That is not a basis for withholding this document. That can't be a public interest immunity case. That's the political interest of Mr Morrison. The government should not be hiding behind claims of public interest immunity when the reality is that the reason this document has not been released is the political interests of Mr Morrison.

When Mr Morrison became Prime Minister he promised all sorts of changes to the way in which the government is run, but he has fallen at the first test. He was one of those people who wanted this debate on religious freedom. He has got his report and he is now refusing to release it to the Australian people. There are some inconsistencies in just what's happening with this document in the government. We saw yesterday the Deputy Prime Minister, Mr Frydenberg, say, 'The report hasn't even been considered by cabinet.' I'll refer to the last time the Senate requested this document to be released on 20 September. Senator Cormann told the Senate:

I hasten to add here, in relation to the report of the Religious Freedom Review Expert Panel, which has been received by the cabinet, that the government has not as yet made any decisions on the way forward. The cabinet continues with its deliberations.

Who's right? Is Mr Frydenberg right when he says, 'The report hasn't even been considered by cabinet,' or is Senator Cormann right when he says, 'The cabinet continues with its deliberations.' The reality is that this is a dysfunctional government. In a serious motion dealing with the issue of anti-racism, we saw yesterday that the Attorney-General wasn't able to make a decision on the response of the government to that motion. Minister Cormann wasn't able to make a response to that motion. We found that a junior staffer in a minister's office is now making decisions on behalf of the government. What sort of dysfunctional government are we dealing with here? I know you're shaking your head, Senator Birmingham; I'd shake my head too. Junior staffers are making decisions about government policy for this government. Is it because Prime Minister Morrison doesn't trust his own ministers? Doesn't he trust Minister Porter? Doesn't he trust Minister Cormann? He's now delegating the role to junior staffers to make the decisions.

We've got an important issue here of religious freedom. The community wants a debate. The parliament wants a debate. The Labor Party wants a serious debate on this issue. We've been waiting now for this report for 11 months. Eleven months ago was when the government announced they were going to start this review. They've had the review for five months and, even after that period of time, we still don't have access to this document. The government changed Prime Ministers to have a fresh start, but it simply hasn't happened. We haven't had a new beginning. This is the old government. This is not a new government with new policies. It's continuing to deny the Australian people the opportunity to have a say about this.

Jenny McAllister (NSW, Australian Labor Party, Shadow Assistant Minister for Families and Communities) Share this | Link to this | Hansard source

It's worse.

Don Farrell (SA, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

You're right, Senator McAllister. I think we've actually gone backwards. I think we should have gone with Minister Cormann's preference for Prime Minister. Minister Dutton could not have done a worse job on this issue than the Prime Minister has done. There is still time. There are three days before the Wentworth by-election. There are three days to release this document. The government has to stop hiding behind public interest immunity claims. They have to stop trying to put their political interests ahead of the interests of the Australian people and their right to know and see this document and their right to debate this issue in a sensible, mature way. The reality is, if they don't release the document, there are obviously people in the government who are going to continue to leak this report; we're going to see it drip-fed through the newspapers. That's not the way for a government to run. It's a dysfunctional government. We've seen how this story ends before. The Labor Party have seen how this story ends, and it doesn't end well for the government.

I think the government has to stop hiding behind public interest immunity claims. There is a duty here to the Australian people but, more importantly, there's a duty to the Senate. The Senate has made its determination. The Senate has determined that this report should be released. It's now time for the government to respect the decision of the Senate and to release the report.

Derryn Hinch (Victoria, Derryn Hinch's Justice Party) Share this | Link to this | Hansard source

I rise to support Senator Rice and Senator Farrell in their comments today about the Ruddock report. The Senate required and requested that it be released, but it has not been. I find it to be an insult to the Senate and the Australian public that the Leader of the Government in the Senate can get up here today and say that it's being considered by cabinet, is protected by the public interest defence et cetera when, in fact, his own government—somebody in his own cabinet—released this last week to The Sydney Morning Herald, and then more of it later on to The Australian, because some people in the government want it out. They want it out there.

I know Senator Farrell says we need to have a debate about it. The debate is going on. The debate's been going on for months. The debate's been going on since the government, under Prime Minister Turnbull, actually announced this sop, and it was a sop, this religious freedom of speech issue. It was put out there so that the Abbotts, the Morrisons and the others who either abstained or voted against the same-sex marriage vote could have some say. Then it went to Ruddock. The government got it in May, and they've sat on it ever since. They've leaked little bits when they wanted to. It should be released in full. It should be out there.

I don't totally let the opposition off the hook on this, because they're demanding the Ruddock statement be released and the report be released, yet, yesterday, they joined with the government to vote me down 47 to 12 on the issue, on my notice of motion, in which I said that any independent school—or its owners or its runners—that discriminates against a student or against a teacher on the grounds of their sexual orientation should not be entitled to government funds or to a charitable status. The ALP joined with the government and voted me down, because they didn't want to see the risk of money being taken away from Catholic schools.

I stand by what I've said about independent schools. If you want to defy the law of the land and want to put your religious credo ahead of the law of the land, you do not deserve one dollar from the Australian taxpayer and you do not deserve a charitable status. That will be challenged, and I shall challenge it as long as I am here.

On the issue of the Ruddock report, it should be released. It must be released. I don't know if it is true that it's being withheld because of the Wentworth by-election, because they were holding it for months and months before former Prime Minister Turnbull actually quit his seat in a tizzy. I don't know if it is tied to the Wentworth by-election, but it must be released. It should be released. We are entitled to it. It does not interfere with religious freedoms for us to have a copy of this report so we can discuss it at length.

Jenny McAllister (NSW, Australian Labor Party, Shadow Assistant Minister for Families and Communities) Share this | Link to this | Hansard source

This is the third time that the government has refused to release the report of the religious freedom review. It's extraordinary. Why is the government afraid to release a report that was commissioned by a coalition government in response to pressure internally from members of the coalition party room and was written by a former minister of a coalition government. It is a coalition document. It is a coalition report. It heads, presumably, in a coalition political direction. Why is it that they are so scared to show the Australian public what it is that they are politically interested in and what it is that they politically believe in? There is just one word, and that word is Wentworth. The by-election in Wentworth has this crowd jumping around like a bunch of kangaroos on the road—they don't know which direction to go in. I'll tell you what, it's pretty dangerous for everybody else involved, because they are creating chaos in all aspects of government decision-making, and that has real consequences for our circumstances domestically and our circumstances internationally. They are presently driven by a primal electoral fear about what is going on in Wentworth. Wentworth, of course, registered one of the highest levels of support for marriage equality during the plebiscite. They are terrified, and they should be. They are terrified by what might happen to their electoral prospects if a proper public debate is able to take place about the contents of that review.

I'll tell you what scares them more. It's the reaction of their party room because, if parts of their party room were given the opportunity to discuss the content of this debate, we'd see even more of the ugliness that they are desperately trying to keep from public view in the lead-up to this by-election. It's been pretty ugly over the last couple of days because this is a government whose senators happily walked in here and sat over there on the affirmative side and voted en masse to say, 'It's okay to be white.' I'm pretty certain they've also got more than a few members who wouldn't be happy to say, 'It's okay to be gay.' That's the problem. That's the debate they are trying to avoid. But the problem is you can't avoid it forever, and this political tactic in the lead-up to the by-election isn't working.

The grounds on which they claim the document needs to be maintained as a confidential document are farcical. A detailed discussion about this document and about recommendations in this document appeared on the front page of the Fairfax papers weeks ago. The recommendations of the Ruddock report have been leaked in full and, if you google them, you can find them. The political consequences, the social consequences, the consequences for children and the consequences for the LGBTIQ community have been debated on the front page of the papers for days, and I can tell you that they're being debated on the ground in Wentworth as well. The Liberal candidate in Wentworth has been forced to comment on the recommendations which were leaked and published in the Fairfax papers. The Prime Minister gave his views on the recommendations last week, and then two days later he gave a different set of views on the recommendations. This is an absolute farce and it makes a mockery of all of the conventions about open government and proper community involvement in the decisions of the parliament and, indeed, the community's ability to contribute to the decisions of cabinet.

Why does the government insist on this debate proceeding publicly in the absence of the actual report from the religious freedom review? I tell you that it is in line with the secrecy that has permeated this review from its very beginnings. It's a review that the government wanted to conduct in the shadows, so initially they refused to release any of the submissions. There were no published transcripts, minutes or even a communique on the consultations that were undertaken by the committee. Earlier this year, I tried to FOI some of the documentation produced by the committee secretariat. That was knocked back. It is difficult to escape the conclusion that this is because the far Right in the coalition party room want to be able to deliver to some of their stakeholders in secret, far from the public eye, and that's just not sustainable. It's not sustainable at all.

Why is it that we're even having the review? You can't forget this. This was a concession that was demanded by the far Right of the Liberal Party as a consolation prize for having been so roundly defeated and so roundly rejected by the Australian public during the plebiscite. There has never been any clearly articulated threat to religious freedom identified by any of the proponents of this review. And, when pressed on it, the Prime Minister could only say, 'Just because things haven't been a problem in the past doesn't mean they won't be a problem in the future.' This is a solution looking for a problem to solve. But there are actually problems right here and right now, in the present, like the right of children to go to a school of their choice and to be supported at a school of their choice irrespective of their sexuality and the right of teachers to do the job that they love without being discriminated against on the basis of who they love.

The Morrison government seems determined to continue the tradition of the Abbott government and the Turnbull government by treating the LGBTI community with the most unbelievable cynicism. We believe that the LGBTIQ community deserves more than to be an object in the government's culture wars. We believe that they deserve support and philosophical consistency, not an opportunistic bounding around, kangaroo style, in the face of this election or that election, or this poll or that poll. There are everyday Australians who, thanks to this government, had to live through a nationwide survey on their right to marry who they love, and now those same Australians have to sit through another conversation about whether people like them ought to be kicked out of their schools. This is 2018. The very least that this government could do is release the report that it commissioned.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

I rise to take note as well. I support the statements in relation to the religious freedom review and the implications of that as raised by Senator McAllister, Senator Rice and Senator Hinch. I want to talk about the actual claim made by the government in relation to this document, the claim of cabinet in confidence. I want to talk about the purpose of that doctrine. Going back to the very basics, the purpose of the cabinet-in-confidence doctrine is to protect the confidentiality of cabinet process to ensure that the principle of collective material responsibility is not undermined. That is the fundamental purpose, and I support that purpose and the doctrine, but the protections of that doctrine are limited; they are not unbounded.

Cabinet is not referred to in our Constitution, although I make no contest of the fact that it has legal status, and I once again recognise the role of cabinet and indeed cabinet confidentiality. Cabinet is a creature of convention, not statute; whereas the Senate's oversight powers are a creature of a statute and, in fact, that statute is the ultimate statute and that is the Constitution—section 49 of the Constitution. Of course, statute always overrides both common law and convention.

Both the courts—and I refer the Senate to the High Court case of Sankey v Whitlam back in 1978—and the parliament have powers to call for cabinet documents. The court made it very clear that in the interests of justice that may, in certain circumstances, override the doctrine of cabinet in confidence. I refer people to the Harry Evans lecture last year by Bret Walker SC where he clearly asserted that the parliament ultimately has the same power as the courts. I accept that that absolute power, that absolute right, is one that should be exercised in extremis, and I don't say that it's warranted in this particular case for us to use our absolute power in relation to this particular OPD.

What I will do is turn to Odgers and read very briefly from Odgers, because that's the norm:

It is accepted that deliberations of the Executive Council and of the cabinet should be able to be conducted in secrecy so as to preserve the freedom of deliberation of those bodies. This ground, however, relates only to disclosure of deliberations.

So not documents, and certainly not documents written by an independent person such as Mr Ruddock.

There has been a tendency for governments to claim that anything with a connection to cabinet is confidential.

It's the aroma of cabinet kind of argument. We wield it through the cabinet on a coffee tray, and therefore the Senate is not able to get access to it.

A claim that a document is a cabinet document should not be accepted; as has been made clear in relation to such claims in court proceedings…

I will go on to provide you with what the courts have said in relation to this. The High Court, in the Commonwealth v Northern Land Council, a 1993 decision, said—and this should be listened to carefully:

It should be observed at the outset that the documents for which the Commonwealth claims immunity from disclosure are documents which record the actual deliberations of Cabinet or a committee of Cabinet.

So just the idea that deliberations are occurring is not sufficient to invoke the doctrine. I accept that cabinet submissions may contain, at the very least, the deliberations of the minister advancing the proposition to the cabinet, so I might accept a public interest immunity claim over a cabinet submission. Cabinet submissions have a particular form. They have particular security requirements, as laid out in the Cabinet Handbook. Typically they are no longer than 50 pages. I suspect that, when this document is finally released, we will find that the Ruddock review in no way, shape or form complies with the requirements of the Cabinet Handbook as a cabinet submission.

I point out that this document is an independent report written by Mr Ruddock. He does not express the views as a member of the cabinet, despite his history. So there can be no case to argue that the views of Mr Ruddock in this report, as well informed or as ill informed or as widely briefed as he was, are in any way a deliberation of the cabinet. This document should be produced, for all the reasons I have just talked about. The government is undermining the very doctrine it seeks to rely upon in this instance. It's inappropriate that it should make that claim. The document should be tabled.

Question agreed to.