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

By letter dated 29 August 2021 Senator Patrick raised as a matter of privilege the failure of the Commissioner of Taxation to comply with an order of the Senate requiring the production of documents related to JobKeeper payments. While the Senate has generally preferred political or procedural remedies in disputes over documents, it may also seek to enforce its orders through its contempt jurisdiction. In that vein, the Senate in June this year referred a dispute over documents withheld from the Senate Economics References Committee to the Privileges Committee for inquiry as a possible contempt.

The letter from Senator Patrick sets out the background to the current matter. The tax commissioner declined to comply with the Senate's order of 4 August, raising the confidentiality of taxpayer information as a public interest immunity claim. On 23 August the Senate explicitly rejected that claim and ordered the commissioner to 'fully comply with the order'. The Treasurer then responded with his own public interest immunity claim, while the commissioner declined to take any further action until the Treasurer's claim was determined by the Senate. Senator Patrick seeks to have the commissioner's refusal to comply with the second order dealt with as a matter of privilege and referred to the Privileges Committee for inquiry as a possible contempt.

Where a matter of privilege is raised, as I've said before, my role is to consider whether it should have precedence in debate. In making that determination I am bound to consider only the criteria in privilege resolution 4. These criteria seek to reserve the Senate's contempt powers for matters involving substantial obstruction to Senate and committee processes or to senators' duties. They also recognise that the Senate is generally reluctant to deal with conduct as a contempt where there is another more appropriate avenue for address available.

It is clear that the conduct of the kind cited in Senator Patrick's letter could substantially frustrate the orders of the Senate requiring the production of documents. The Senate has declared in privilege resolution 6 that disobedience of a lawful order of the Senate and refusal to produce documents in accordance with a Senate order may be dealt with by the Senate as a contempt. I am, therefore, satisfied that criterion A is met. The question of whether the matter warrants investigation as a possible contempt or whether the tax commissioner has a reasonable excuse for his conduct are not questions for me but for the Senate.

In relation to the second criterion, regard for the existence of other remedies, only the Senate can remedy conduct obstructing its own orders. In that sense this criterion is also satisfied. However, I note that there are also procedural and legislative avenues available to the Senate. They include taking action to consider the public interest immunity claim made by the Treasurer or seeking the publication of the information by legislative means. In relation to possible legislative action, I note that both Senator McAllister and Senator Patrick have circulated amendments to an upcoming treasury laws amendment bill that would require publication of the information in question.

In any case, the matter meets the criteria I am required to consider and I have determined that the matter should be granted precedence. However, it remains for the Senate to determine whether the matter should be progressed by way of referral to the Privileges Committee or whether another remedy should be pursued. I table the correspondence and call Senator Patrick to give a notice of motion in respect of the matter.

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

[by video link] I move:

That the following matter be referred to the Standing Committee of Privileges for inquiry and report:

Having regard to the matters raised by Senator Patrick in correspondence tabled by the President on 1 September 2021:

(a) whether the Commissioner of Taxation has, without reasonable excuse: (i) disobeyed a lawful order of the Senate,

  (ii) failed to produce documents in accordance with an order of the Senate, or

  (iii) improperly interfered with the power of the Senate to obtain information necessary to support its accountability functions; and

(b) if so, whether any contempt was committed in that regard.

I also seek leave to make a short statement of no more than three minutes.

Leave granted.

This is a very important issue. Irrespective of whether senators agree or disagree with the order, the Senate has placed an order on the tax commissioner. It was placed on the tax commissioner because the information is not able to be obtained by the Treasurer by way of division 355 of the Taxation Administration Act, which prevents the minister seeking access to taxpayers' information. The commissioner responded to the 4 August order for production, advancing a public interest immunity, as he is entitled. The Senate then rejected that, on 23 August, giving the tax commissioner until 26 August to comply with the order, and he failed to do so. It's a very serious matter when a member of the executive fails to comply with a lawful order of the Senate.

In relation to the remedies—and I thank the President for raising the other alternative remedies—the Treasury law bills that are going through the Senate involve a process which requires the House to agree to the amendments. I respectfully suggest it raises comity issues as to whether it's appropriate for that to be a remedy to a potential contempt of the Senate.

In relation to the Treasurer's advancement of public interest immunity, the order was not directed at the Treasurer, for good reason, and there is no lawful ability for the Treasurer to countermand an order of the Senate. It is an important issue that needs to be resolved and, in accordance with the notice I've given, I will give the Senate the opportunity to consider this over the break between the sitting periods.