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

I seek leave to make a statement to the Senate.

Leave granted.

I want to bring to the attention of the chamber a rather serious issue that all senators ought to be aware of. Most will not know the history of this, but back in 2017 the Auditor-General commenced an audit into an Army project called Hawkei. As the Auditor-General completed that projected, on around 6 September 2018, the Attorney-General intervened and—

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Sorry, Senator Patrick. We should have clarified the amount of time that you're seeking.

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

Sorry, I've been granted leave and I'll just continue, if that's okay.

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

How much time are you seeking to speak?

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

When I've finished I'll resume my seat.

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Is that acceptable?

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

Leave has been granted, Chair.

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Patrick.

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

Thank you very much. I'll continue. The situation is that the Auditor-General tabled a report in the parliament, but that that report was censored by way of a very rarely used power by the Attorney-General of Australia under section 37 of the Auditor-General Act. That's the first time that section has been used in respect of censoring the Senate since the Auditor-General Act came into effect. Indeed, the previous Auditor-General Act—I'm pretty sure somewhere in the nineties was the previous time when the power was exercised. The power was exercised on the basis that the parliament should not see information in the Auditor-General's report, on the basis that it was national security sensitive and commercially sensitive.

I just wish to inform the chamber that I challenged that decision, and the decision has been handed down today. The Administrative Appeals Tribunal has found that the Attorney-General basically committed both a political error and a legal error in his decision. It's another example of the government being secretive and stopping this parliament from having access to information which it rightly should have access to. We are talking about an Auditor-General's report. The Auditor-General is an officer of the parliament by way of statute. Without the Auditor-General, this parliament would be denied the ability to properly examine the actions of government.

The Auditor-General is a really important player. He has the discretion to remove information from his reports and generally has not had any issues in the period in which he, the current Auditor-General, has been in office—five years. He appeared before the JCPAA and made it very clear that he was of the view that what was in the report, what had been redacted by the Attorney-General, was in fact not sensitive. The AAT has backed that up.

So I just want to point this out. This is an error of legal judgement by the Attorney-General in much the same manner as he's made legal errors in respect of the prosecution of Witness K, the prosecution of Bernard Collaery, the prosecution of Richard Boyle and the prosecution of David McBride. This decision by the AAT today demonstrates that the Attorney-General does not have the capacity to actually make a correct decision around matters of national security and commercial interest. That's important, because, in some of the trials that are currently being played out before the courts, the NSI has been enacted on the basis of the Attorney-General intervening and requesting that information not be produced in open court because of national security sensitivities. This decision of the AAT shows that the Attorney-General is not capable of making such decisions, and he should now reconsider what he's done in respect of the—

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Henderson, on a point of order?

Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

My point of order is that the senator is reflecting on the Attorney-General in a way that is in breach of the standing orders. I would ask him not to do so and ask you to bring him to order.

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Thanks, Senator Henderson. Senator Patrick, could you continue your remarks with Senator Henderson's comments in mind?

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

Just to make it very clear, this is the finding of the AAT: 'The decision under review is set aside and substituted with a decision that the disputed material is not exempt from disclosure under the FOI Act and that Senator Patrick is given access to the disputed material.' I am quite within my rights to come in here and challenge the efficacy and the ability of the Attorney-General to make proper decisions. Actually, one of the roles of the Senate is to hold the executive to account. In this instance, the Attorney-General sought to censor the parliament and did so improperly. He did so without regard to the law, did so without regard to respect for the parliament. Along the way, the Attorney-General has thrown everything at this. He tried to raise a constitutional matter, which of course required careful consideration, required public money to be spent on the AGS, because the AGS were representing the Prime Minister in this particular case. It required spending taxpayers' money, and then at the very last minute the case on the constitutional matter was withdrawn. It was just a waste of taxpayers' money. If I want to stand in this chamber and say that the Attorney-General did not exercise good judgement, I'm quite entitled to do so. Don't you dare—

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Patrick, could you please direct your remarks through the chair.

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

I'm sorry, Madam Acting Deputy President.

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Henderson, on a point of order?

Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

The point of order is that I raised my earlier point of order in relation to other ways in which Senator Patrick was reflecting on the Attorney-General, being his capacity more broadly to make proper decisions. I understand the point that Senator Patrick is raising in relation to the AAT decision. That was not my point of order; it was on the broader point that he's improperly reflecting on the Attorney-General more generally, and I would ask him not to do so.

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Senator Henderson. I've already ruled on that point of order. Senator Patrick, I'd just remind you to make your comments through the chair.

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

I apologise for that, Madam Acting Deputy President. Again, no senator should be prevented from coming into this chamber and challenging the judgement of any member of the executive. That is entirely appropriate, that is quite parliamentary; in fact, it is the role of the Senate to do so. Section 49 of the Constitution makes it very clear that we have an oversight responsibility, that we hold the executive to account. If that means I stand and make an allegation, grounded by the facts that I've now read into the Hansard, that the Attorney-General is incapable of making proper decisions, then I will do so. That is my role. It is quite parliamentary; it is not in breach of the standing orders.

I know that perhaps some senators may feel they wish to defend the Attorney-General. But a series of decisions was made in respect of decisions to prosecute Witness K, Bernard Collaery, Richard Boyle, David McBride—whistleblowers—because the government wants to keep everything inside the closet. Again, information that this parliament was entitled to have was withheld on the basis of a flawed decision by the Attorney-General. The Senate, in my view, ought to reflect on what's happened here. Very simply, it's another instance where the executive is trying to prevent us from doing our work. I've talked on many occasions about times at which the executive have advanced public interest immunity, and time and time again we find that regular citizens can get access to documents that senators can't because the executive simply doesn't respond and, in many respects, because the Senate doesn't properly exercise its powers over the executive. It's a serious issue and I ask senators to reflect on it. I'm happy to provide any of them the decision that was made by the AAT today.