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

My question is to the Minister for Small and Family Business, Skills and Vocational Education, Senator Cash. I refer to the minister's previous statement to Senate estimates on 25 October 2017 that her media adviser Mr De Garis had received information that raids on the AWU might take place 'from a media source'. Given that Mr De Garis has now named the minister's then chief of staff as the source of that information, will the minister now correct the record?

Michaelia Cash (WA, Liberal Party, Minister for Small and Family Business) Share this | Link to this | Hansard source

Senator Wong, in relation to your question, the answers that I provided were based on the knowledge that I had at the time. To the extent that you have put that statement to me, at this point in time I'm not aware of that statement.

Scott Ryan (President) Share this | Link to this | Hansard source

Senator Wong, a supplementary question?

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

Perhaps the minister can enlighten us if she's not aware of her own statement or of the statement given today. But I will continue. I refer to another statement by this minister at estimates, on 26 October 2017, in which the minister stated that she had 'spoken to each individual staff member' and had asked them:

'Were you aware of the raids prior to them occurring, and did you speak to any journalists prior to the raids?' They have all responded no.

Does the minister stand by this statement? Did the minister receive such an assurance from her then chief of staff?

Michaelia Cash (WA, Liberal Party, Minister for Small and Family Business) Share this | Link to this | Hansard source

The answer to both questions is yes and yes.

Scott Ryan (President) Share this | Link to this | Hansard source

Senator Wong, a final supplementary question?

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

The minister's account to Senate estimates is inconsistent with the evidence given by her former employee today in the Federal Court. Will the minister now correct the Senate record as she is obliged to do?

Michaelia Cash (WA, Liberal Party, Minister for Small and Family Business) Share this | Link to this | Hansard source

Again, Senator Wong, you are a lawyer, and therefore you would understand that as this matter is before the court it is actually inappropriate for me to comment.

Scott Ryan (President) Share this | Link to this | Hansard source

Senator Wong on a point of order?

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

This is not a sub judice matter. This is about evidence given to the Senate which is not correct. The minister is obliged to correct the record. If she wishes to go back to her office and check, I understand that; but she is obliged to correct the record if she believes it is incorrect.

Scott Ryan (President) Share this | Link to this | Hansard source

Senator Cormann, on the point of order?

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

There is no basis on which Senator Wong can deduce that Senator Cash in any way misled the Senate based on her answers to the questions that she has asked. Senator Wong made a number of assertions about what somebody else asserted today. As Senator Cash very clearly indicated in her answers today, her statements to Senate estimates and since have been based on her state of knowledge. As I understand from her answers, her state of knowledge hasn't changed. The point of order is to reject the proposition of Senator Wong that somehow there is an answer to be provided in relation to misleading the Senate. There isn't, because I think that Senator Cash's answers to the first two questions were self-explanatory. Senator Cash made very clear—in fact she was emphatic, in particular, in relation to the second question, answering 'yes and yes'—that she maintains and stands by the statements that she has made, and the statement in relation to the first matter was based on her state of knowledge at the time. There is nothing that has indicated that her state of knowledge has changed since that time, irrespective of the statements that may or may not have been made by a third party.

Scott Ryan (President) Share this | Link to this | Hansard source

Senator Wong, on the point of order?

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

I didn't clarify the point I was making, and the Leader of the Government in the Senate has responded perhaps on a different point. The point I was making and that we seek your ruling on is the minister's assertion that because this is before the courts she ought not have to answer. My point of order to you is that the sub judice rule does not apply in these circumstances. The question goes to correcting the Senate record, not to a matter which may prejudice a finding before the court.

Scott Ryan (President) Share this | Link to this | Hansard source

Senator Cormann?

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

On that same point, what Senator Wong has put to Senator Cash are statements that were made by a witness in some proceedings which are yet to be tested. It is entirely inappropriate for Senator Cash to be asked to provide a running commentary in relation to statements that apparently have been made. She has consistently put her position based on her state of knowledge. She has confirmed her position again today. If Senator Wong is asserting that somehow what Senator Cash is saying is not in her state of mind then she should say that. She cannot ask Senator Cash to provide a running commentary on the evidence provided by a witness in a court proceeding.

Scott Ryan (President) Share this | Link to this | Hansard source

Can I rule on the two matters that have been raised in this point of order. I'll start with the matter of sub judice. I will quote now from Odgers' Senate Practice, the 13th edition, page 250, if anyone would like to look at it:

The sub judice convention is a restriction on debate which the Senate imposes upon itself, whereby debate is avoided which could involve a substantial danger of prejudice to proceedings before a court …

The convention … is interpreted and applied by the chair and by the Senate according to circumstances.

Page 253 goes on to outline three conditions, or principles, about the application of this:

of a trial—

in the sense of either creating an atmosphere where a jury would be unable to deal fairly with the evidence put before it—

or where it would affect the—

witness in the giving of evidence …

…   …   …

On the issue of it being inappropriate or sub judice, I'm not going to say this matter as asked by Senator Wong breaches those principles. This matter is not before a jury or a magistrate, I understand, today and I don't foresee this necessarily prejudicing the procedures that, I understand, are currently before the court. However, I cannot direct the minister how to answer a question. It is entirely appropriate for the minister to refer to past statements and potentially to future events that may be coming up, and that is a matter for others to judge. It is not for me to direct a minister to make a statement or otherwise; it is a matter for the contest of the Senate. Senator Bernardi, on a point of order?

Cory Bernardi (SA, Australian Conservatives) Share this | Link to this | Hansard source

I seek one further item of clarification. I think Senator Cormann raised a very good point. Senator Wong put forward some statements that she said had been made in the court today. The minister, in her response, said, 'I'm not aware of those statements,' and so she can't be drawn on responding to them. Is it in order for people to put allegations to a minister and then for them to have to respond to something that they're not aware of?

Scott Ryan (President) Share this | Link to this | Hansard source

As I understand your point of order, Senator Bernardi, it would be entirely in order for a minister to say they are not aware of the statements being put to them in a question. And that is the way to deal with a statement the minister is not aware of that is put to a minister in a question.

I will finally conclude on this other paragraph in Odgers':

It would be an undue restriction on the freedom of the Senate to debate matters of public interest if debate were to be restrained simply on the basis that matters may come before a court in the future.

That is a direct quote from Odgers' in a similar section.