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

I, and also on behalf of Senators Waters, Lambie, Patrick and Hanson, move:

That—

(1) The Senate notes that:

(a) on 5 February 2020, the Senate ordered the Minister representing the Prime Minister, Senator Cormann, to table the final report provided by the Secretary of the Department of the Prime Minister and Cabinet, Mr Phillip Gaetjens, to the Prime Minister in relation to the application of the Statement of Ministerial Standards to the former Minister for Sport, the Honourable Senator McKenzie's, award of funding under the Community Sport Infrastructure Program;

(b) on 6 February 2020, the Minister representing the Prime Minister tabled a letter making a public interest immunity claim grounded in the preservation of the confidentiality of cabinet deliberations,

(c) the document is a final report prepared outside of the Cabinet Room and has no capacity to reveal deliberations inside the Cabinet Room; and

(d) the Senate does not accept the public interest immunity claim made by the Minister representing the Prime Minister.

(2) Until the final report provided by the Secretary of the Department of the Prime Minister and Cabinet, Mr Phillip Gaetjens, to the Prime Minister in relation to the application of the Statement of Ministerial Standards to the former Minister for Sport, the Honourable Senator McKenzie's, award of funding under the Community Sport Infrastructure Program, is tabled, or 6 March 2020, whichever is the earlier, Senator Cormann be prevented from:

(a) being asked or answering questions which may be put to ministers under standing order 72(1) where such questions are directed to the Minister representing the Prime Minister;

(b) representing the Prime Minister before a legislative and general purpose standing committee, including during consideration of estimates; and

(c) sitting at the seat at the table in the Senate chamber that is ordinarily reserved for the Leader of the Government in Senate.

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

I seek leave to make a statement of no more than seven minutes.

Leave granted.

The government will oppose this motion, and I call on the Senate to oppose this motion in full. As Justice Meagher observed in the New South Wales case of Egan v Chadwick and Others as part of the majority decision:

The Cabinet is the cornerstone of responsible government … and its documents are essential for its operation. That means their immunity from production is complete.

Even Chief Justice Spigelman, who took a slightly softer position, also made clear as part of the same majority decision, at paragraph 70, that the power to require the production of documents should 'be restricted to documents which do not, directly or indirectly, reveal the deliberations of cabinet'. It has been well recognised in the Westminster system for hundreds of years that 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, including of relevant advice to cabinet or its committees. Under our system of responsible government, the principle of cabinet confidentiality is central to ensuring the provision of good government.

The report that the movers of this motion are attempting to force me to table on behalf of the government is a cabinet-in-confidence document. It is advice prepared by the Secretary of the Department of the Prime Minister and Cabinet for the purpose of informing the deliberations of the cabinet committee, and it is advice which was formally considered by that cabinet subcommittee as part of its deliberations. The Governance Committee of cabinet did not just use this report as some background material; it deliberated upon its very contents and made decisions directly in relation to those contents. Its release would therefore reveal deliberations of a cabinet committee. It would do so directly or, at the very least, indirectly.

Labor Senate cabinet ministers in the past—and, I would put it to the Senate, any Labor Senate cabinet minister in the future—being asked to release cabinet documents of formal advice prepared for the consideration of and informing the deliberate processes of cabinet or a cabinet committee would have refused, and will refuse in the future, to comply with any such request, claiming, as I have, public interest immunity. I continue to claim public interest immunity on behalf of our government, in the same way governments of both persuasions have done since Federation.

Turning to the sanctions proposed in part (2) of the motion. In the 119-year history of the Australian Senate, those proposed sanctions are completely unprecedented—completely unprecedented—and they are completely inconsistent with the ordinary application of the standing and sessional orders and longstanding Senate practice. It is our view that part (2) of the motion is asking the Senate to exceed its powers. There are limits on the Senate's powers, and it's our view that this motion is asking the Senate to exceed its powers.

The selection of the Leader of the Government in the Senate is a matter exclusively for the government, and such a decision should not be undermined by the Senate denying him or her the rights and privileges which accrue to the person holding that position from time to time under the practices and procedures of the parliament. Furthermore, the government allocates ministerial responsibilities. This motion would remove the capacity of senators—all senators, including Labor senators—to ask questions of the Minister representing the Prime Minister in the Senate, which surely is counterproductive and entirely undesirable. It would also deny a minister the right to attend legislative and general purpose standing committees, including during the consideration of estimates, which denies the government the capacity to fulfil its responsibility to outline and explain its actions to the Senate.

In any event, even if the Senate had this power, it would be an abuse of power to use it. Consider this: if the Senate had this power, where a majority of senators could remove a senator from his or her chair and prevent him or her from performing the functions to which he or she has been duly appointed, then a majority of members in the House of Representatives could conceivably do the same. A government majority in the House of Representatives could remove the Leader of the Opposition from his chair at the table for three weeks and prevent him from asking questions, similar to what this motion is seeking to do to me as the Leader of the Government in the Senate. It would be completely inappropriate and we would never do it because, unlike those opposite, we respect the institution of the parliament.

We all understand that this is a political stunt. The fact that Labor is proposing and supporting this motion reflects very badly on all of you. Let me say to those Labor senators who have not yet been ministers but who aspire to be Senate ministers in the future: be very, very wary of letting those who came before you box you into precedents that you, not they, will have to live with in the future. I urge the Senate to reject this motion.

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

Senator Cormann defends himself and argues against this motion on the basis it is unprecedented. He makes that argument as if it is in his favour. It is not. He's right; the sanctions that are proposed against him as Leader of the Government in the Senate are unprecedented. But they are necessary because of the unprecedented behaviour of this government. That senators from across this chamber with a wide range of perspectives agree that such unprecedented action is necessary should be cause for reflection. When your behaviour—

Senator Cormann interjecting—

I listened to you in silence for the most part; give me at least a couple of minutes. When your behaviour provokes an unprecedented response, it might be cause to consider your own behaviour. Instead of pointing the finger, have a look in the mirror.

Senator Cormann argues that cabinet is the cornerstone of our democracy. He's right. That is why it ought not be used to perpetrate a political rort. That is why cabinet confidentiality ought not be used to perpetrate a political rort and a cover-up. Who are the ones trashing our democracy these days? There is a principle of cabinet confidentiality. There is also a principle of ministerial accountability to the parliament. Every day in this place we see the ways in which those opposite disregard that. We saw that today with Minister Reynolds.

It is entirely explicable why the government have such an attitude, though. Frankly, they're arrogant. They've been on a victory lap. They think they own the joint. They think that the last election was the last word on accountability. They think they're unbeatable and that, no matter how badly they govern or abuse their office, they can get away with it. That's what they think, and it is reflected in their behaviour.

I would remind government ministers that unchecked power never ends well. When Mr Howard won control of the Senate in 2004, it was the beginning of the end of the Howard era. Just as the Howard government did then, Mr Morrison and most of his ministers think they're above it all. They think they don't have to answer questions. They think they don't have to be accountable. We're seeing it in so much that they do. We see it in Mr Morrison's interviews, where he consistently refuses to answer questions that he doesn't like from the media: 'That's just in the bubble.' We see it in question time—refusal to answer, obfuscation and disregard for the parliament. We see it in Senate estimates, with complete contempt in taking unprecedented numbers of questions on notice—over 100 questions in one hearing alone. We see it in the government's misuse of the Public Service. They treat it as an extension of their ministerial offices, encouraging officers to take questions on notice and ensuring that public servants are not expected to come prepared or with material. We see it in their refusal to provide legal advice that confirms the government acted within the law. We see it in their complete contempt for the independent Auditor-General's report into the sports rorts scandal. We see it in their appointment of the Prime Minister's mate Mr Gaetjens to run PM&C. We see it in that mate being asked to write a report that whitewashes the government's wrongdoing in the sports rorts scandal, and we see it in the government refusing to make that report public.

Senator Cormann pretends that, somehow, the delivery of this report to the Senate would reveal cabinet deliberations. He knows this is an abysmal failure of accountability and a complete distortion of the principles of cabinet confidentiality. Odgers' Australian Senate Practice makes it clear that it has to be established that disclosure of the document would reveal cabinet deliberations. The government can't simply make that claim, because the document was walked through a cabinet room or has the word 'cabinet' on it. The fact is that the Gaetjens report, like the use of cabinet confidentiality, is simply another step in this cover-up.

Let us remember this: all of these contortions are necessary. Putting into cabinet a document that they have to keep secret, legal advice from Mr Porter that they have to keep secret—they're all necessary because they have to refute the report of an independent statutory officer. That's what all this contortion is about. It's refuting a report of an independent parliamentary officer who both has said that the money ought not have been allocated in the way that it was misadministered and also questioned the legal basis of the power of the minister to do these things. So, in order to dismiss the independent statutory officer's report—the independent authority—they go through this contortion of putting documents into a cabinet process so they can then hide them. But, regardless of whether this motion gets up, there's a bigger question here for Senator Cormann, and I say this to him: is this really the hill you want your credibility to die on—all your years in this place, all your efforts to bring integrity to this place, going up in smoke to protect a man who would never do the same? I hope Senator Cormann acts in this place to protect his legacy and reputation rather than the unsalvageable reputation of the ad man that purports to lead this country. I say to Senator Cormann: I hope he uses his leadership in this place to ensure a change of behaviour, a change that ensures the Senate is not forced to try and take this unprecedented step again.

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

I can't ask anyone to withdraw, but there are officers in the other place that I think need to be referred to by their formal title.

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

I withdraw—Mr Morrison.

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

Thank you, Senator Wong. Senator Patrick.

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

I seek leave to make a statement for fewer than seven minutes.

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

Leave is granted for five minutes.

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

In speaking in support of this motion, I really just want to read some statements from my first speech. In my first speech I said:

In this I refer to the Senate's role of probing and checking the administration of laws, of keeping itself and the public informed and its requirement to insist on ministerial accountability for the government's administration. With words so relevant to us, that they are quoted in Odgers, US President Woodrow Wilson described the informing role of the congress, stating: "It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and disposition of the administrative agents of government, the country must be helpless to learn how it is being served." The philosopher John Stuart Mill, quoted with approval in the High Court case of Egan and Willis, summarised the task as: "… to watch and control the government: to throw the light of publicity on its acts".

Most relevantly, I also said:

All too often orders for production of documents have been met with contempt. An order for production gets made, the government advances an argument for public interest immunity, however tenuous that argument might be. Invariably the Senate does not accept the public interest immunity claim and the government insists on its refusal to provide the document and the Senate does nothing except weaken itself.

Now, of the sanctions that are being talked about by Senator Cormann—the illegality or the inappropriateness of having a minister not able to do certain tasks within the chamber, or, indeed, to be expelled from the chamber—let me dispel any doubt: Mr Egan, the Treasurer of New South Wales, was expelled from the New South Wales parliament. It went to the High Court. The High Court affirmed that the House had the right to do so in managing its own affairs. There is no question, and Senator Cormann, who is a lawyer, knows that. It also happened in the Victorian parliament within the last couple of years. So I refer senators to Egan and Willis and what the High Court said in that case.

The government has been pulling down the steel shutters on transparency and accountability. In this case, there's been a sports rorts affair and the government has gone running to a bunker, and on the front door of that bunker is a label that says 'cabinet'. It is hiding behind cabinet for a matter which most Australians really do want exposed. Most Australians want to look into what actually happened, and there should be no fear in the government releasing a report that exonerates the actions of its ministers—indeed, the Prime Minister, if he was involved. So it is my strong view that the Senate must push back in circumstances where that cabinet bunker is being employed. We should not exercise our power irresponsibly, but there are times where you don't exercise power that results in an irresponsible action.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

I seek leave to make a statement of no more than five minutes.

Leave granted.

The government could have avoided this whole situation by simply voluntarily releasing the Gaetjens report. Reports of this nature have been voluntarily released before. Reports by secretaries of departments, including PM&C, have been put in the public domain voluntarily by governments before, even when they've been politically inconvenient. When did it become okay for that convention to not apply anymore? We are here because this government has completely pulled down the shutters and is in fact now the most secretive government that this nation has ever experienced.

We are in this predicament because the government are refusing to put into the public domain a report which you claim exonerates a minister who was then turfed out anyway. We get that this is politically inconvenient and very damaging for the government, but what is more damaging is for the Prime Minister to continue to insist that every single matter that he is questioned on is simply the Canberra bubble. This absolute lack of transparency and accountability is fundamentally behind the erosion of public trust in this government in particular and in our parliamentary system more broadly. Release the report. Do the right thing; don't make the Senate force you to do it.

On this claim of cabinet in confidence, the ministerial standards are very clear that they are the Prime Minister's ministerial standards. So the issue of why the governance committee of the cabinet was even discussing this, frankly, is also very fishy. It sounds to me like a politicisation of the Prime Minister's ministerial standards—discussing whose head is going to roll to protect the Prime Minister, who was clearly implicated in this whole sports rorts saga.

The other point is Odgers makes it perfectly clear that in fact you can assert a claim for either public interest immunity or cabinet in confidence but that the Senate can insist that the document nonetheless be produced. That is what we are doing and it is still within your purview to simply release the document and avoid the need for these sanctions to then apply to your ability to sit in that chair.

I think the public now knows that support for this motion has now been withdrawn by one of the signatories to the motion. One Nation have now said they won't be co-signing this motion anymore. I'm very interested in what changed their minds, very interested in what was provided to them by the government to make sure this motion doesn't pass today. It is yet another matter that no doubt we will never know about because you won't disclose it, because, once again, it's not in your interest to have any sense of accountability or transparency.

This whole saga just once again demonstrates that we need independent enforcement of these ministerial standards and we need an independent, properly enforced, strong, broad federal corruption watchdog—a body which your government got in the way of yesterday in the House by blocking a Greens bill coming on that would set up such a body. We are fed up with the constant lack of transparency and accountability. This government has reached new lows in that regard. It is damaging the institution of democracy, it is undermining the public's confidence in this very system and it won't end well for you, but nor will it end well for our polity. Please release the documents and avoid the need for the Senate to force you to do so.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I seek leave to make a very short statement.

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

Leave is granted for up to five minutes.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

One Nation has withdrawn our support for this motion. Yesterday, when it was presented to me, it was a lot stronger than this. It's actually to stop Senator Cormann from attending the chamber for the entire Autumn sittings. I totally refused to agree to that. That came back. With the way it was set out, he couldn't represent the Prime Minister in answering or asking questions. I did sign that, although it did disturb me.

This morning, after having further advice and consultation with Rebekha Sharkie, who came to my office wanting to speak to me with regards to this, and also having a phone call made to me early this morning by Stirling Griff, who is also very concerned about the motion—about the fact that it sets a precedent in this chamber—upon reflection, I don't believe we should continue with this. For that reason, I have withdrawn my support. I did inform the Labor Party about this. I have sent a message to Senator Rex Patrick about it, and I have also spoken to Senator Jacqui Lambie, and explained to them why I have withdrawn my support.

In this chamber, I hear both sides of the arguments that go on. Whoever is in government, you will do whatever you can for your own survival, regardless of what the public think. You will keep documents. You don't present documents. And the Labor Party have done it when they have been in government. What I'm concerned about is setting a precedent here in this chamber where a senator can be thrown out of the chamber by the majority. What's going to happen is this: it's not going to be the Labor Party or anyone else that's going to be accused of stopping democracy happening in this parliament. It will be One Nation or the minor parties, the crossbenchers, that will have to wear it. We will be blamed for overstepping our power in here for the wrong reasons. That is why I'm not going to wear this. The fact is that if you want your documents then you apply for them in the right way, and it's up to the government. I'm not going to defend them about this at all. I'm not going to be a signatory to the fact of having us make this decision. Senator Cormann is an elected member of this chamber. He has a right to his place in this chamber. It is not up to us to take away that right that was given to him by the Australian people when they voted for him. Therefore I stand by the fact that we are not supporting this motion.

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

The question is that motion No. 445 be agreed to.

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

I thank the Senate.