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

Pursuant to standing order 74(5), I seek an explanation from the Minister representing the Prime Minister, Senator Birmingham, as to why—and this is the third time that I have asked in this sitting fortnight—question No. 3985 has not been answered by the Department of the Prime Minister and Cabinet.

Simon Birmingham (SA, Liberal Party, Minister for Finance) Share this | Link to this | Hansard source

I thank Senator Patrick for his question. The processes around finalising that answer have not been able to be finalised at this point in time. It has been a very busy period for all involved, as I've indicated to the Senate before. Through the life of this parliament, there have been record numbers of questions asked across questions on notice to the Senate chamber and across parliamentary estimates proceedings. Indeed, I think the questions total something close to that experienced in the previous two parliaments combined. The government has worked hard to provide answers and has delivered answers to record numbers of questions. I apologise to Senator Patrick in relation this one, but I don't have a further update for him.

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

I move:

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

Again, this question relates to a simple request as to how much money was spent in my case against the Prime Minister in relation to national cabinet. I'm interested in finding out the answer. I'd love to know why, whatever amount was spent, we spent that money when the government was not going to comply with the principles that Justice White has put.

The second part goes to the cost of looking at a section 37 certificate to censor an Auditor-General's report that was issued by Attorney-General Porter—again, an AAT matter where the AAT overturned the Attorney-General's censoring. All I asked was: how much did the proceedings cost? That's an accounting system question.

It's not like I stand up here after every question time and surprise the minister. I actually do the right thing, in accordance with the President's guidance in relation to the standing order. I contact the relevant minister's office and I advise them that a particular question hasn't been answered and that I may choose to exercise my rights under the standing orders. It's not like I somehow surprise the minister in doing this. I go back to last week, when Senator Birmingham stood up and said—actually, I think it might have been Senator Duniam on his behalf—'Look, we're trying to get to this answer.' But, after the second time I asked the question and now the third time, I seek an explanation, I would have thought that the minister would have picked up the phone to the Prime Minister and said, 'You know what; can we just give Senator Patrick his answer?' But, no, that's too hard.

Again, this question goes to costs around the proceedings in the AAT in relation to national cabinet. It does disturb me, because, firstly, on the evidence that was supplied to the tribunal by Geoffrey Watson SC, an eminent barrister—and I thank him for his pro bono work on the issue—I think that it would have been obvious to anybody that there was no argument to be had, that national cabinet did not meet any of the requirements of a cabinet. It didn't have cabinet solidarity. It didn't have cabinet responsibility. It wasn't even formed by the federal cabinet. It wasn't a committee of the cabinet, because it was proposed by COAG—it was a committee of the COAG. There are all these things. There's the fact that a cabinet consists of members of parliament and is responsible to one parliament, not to nine, as is the case with the national cabinet.

The Prime Minister had said, in his own words: 'We have these cabinet meetings, and sometimes some premiers disagree. But the bus leaves the bus station and you either get on or you don't.' That's not allowed in the cabinet system. In a cabinet system the principle is: you go in, you have your argument but, when you come out, everyone sings off the same hymn sheet, such that there is a confidence in those decisions of cabinet. It was clear going into those proceedings that there was no chance that Justice White would find in any other way than that it wasn't a committee of the cabinet.

Yet, sadly, in the last couple of days, I have had yet another FOI decision that has come back. I was not after cabinet minutes this time. I was seeking 'access to the following information relating to the infrastructure and transport national cabinet reform committee established in October 2020. I want the minutes of all meetings and the action items of all meetings.' So I am not after, in this instance, even the meetings of the national cabinet. I'm after some peripheral committee that they've established that might feed in and provide advice.

If you look at where national cabinet extends to, it's quite amazing. Half of the government could well be covered by a national cabinet claim, if it were permitted under law, which it is not. Again, I have an official here. In this case, it is Petra Gartmann—and I will continue to name people. I point out that I have had over 200 FOIs and I've never come into this chamber and named a decision-maker. I normally simply appeal them. That's the normal process. But in this instance, it's so offensive in respect of the claims that are being made against such a prominent and weighty judgement from Justice White. I get an answer that makes an acknowledgment: 'I am aware of and have considered the Administrative Appeals Tribunal decision delivered on 5 August 2021 by deputy president Justice White in Patrick and the Secretary, Department of the Prime Minister and Cabinet 2021, AAT 2719.' Then it says: 'In addition to the decision in Patrick, I have considered the national cabinet's terms of reference of 15 March 2020'—made public after the decision in Patrick—'and a joint statement made on 17 September by the Prime Minister, state premiers and territory chief ministers on the importance of confidentiality about relationships between the Commonwealth, and the states and territories. I have formed the view that national cabinet is a committee of the cabinet for the purposes of the FOI Act.'

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

That is above and beyond the law.

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

That is above and beyond the law. That's an official.

I'm accepting those interjections. It is, in fact, a mandate driven down from the very, very top, from a prime minister who says, 'I am addicted to secrecy, and the Australian public will not find out what it is that we're up to'. It flows down through Mr Gaetjens and now down to the next level, where, sadly, those officials are acting in breach of the law. It's not that they're making an FOI decision that's wrong. That's not punishable. It's appealable but not punishable. But they are breaking the law in that they breached the core APS Values and the Code Of Conduct, which requires that objectivity; it requires professionalism, it requires fearless and frank advice, and, in the case of independent decision-makers, it requires the decision-maker to consider all of the facts, consider the law and make a determination. Now, I've got three of these decisions and I've seen one from a constituent that used a template format. That tells me that the department is not taking the issue seriously in terms of their approach to freedom of information.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

They're doing what Mr Morrison tells them.

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

They're doing what Mr Morrison tells them. They're supposed to independently look at the matter—each one of them—look at the cases, not at the hymn sheet produced by Mr Morrison. It brings them into disrepute, sadly, the way this works.

Just to make it very clear to the chamber: what these officials are saying is that there's new information that Justice White didn't consider, and they then mention some terms of reference. But if they read the decision of Justice White—I think it's in paragraph 189, though I may be mistaken there—Justice White looked at the terms of reference and read them in the context that the decision-maker was concerned about, saying, 'These are the terms of reference established by COAG.' They were actually part of the FOI documents that were provided to me. Justice White looked at them. When he was making his decision, he raised some serious concerns about PM&C, which is supposed to be the pre-eminent government body. He raised concerns that they hadn't put up any evidence other than secondary, other than hearsay, as to the forming up of the national cabinet. So he said: 'You know what? I'm going to take the terms of reference that were in the documents and I'm going to include them in my decision. But it doesn't change the facts, because the terms of reference were generated by COAG.' That's the first point that these decision-makers are trying to hang their hat on, and it's wrong. It's simply wrong.

The second one is: they say that, since that decision, the Prime Minister and the premiers have all stood up and said, 'We want national cabinet to be confidential.' But that's not how this works. Justice White was asked to make a legal determination on the statutory expression 'committee of cabinet'. He was asked to interpret what was in the statutes. No amount of statements from outside of this chamber as to what 'committee of cabinet' means, whether it's the Prime Minister, premiers or even a legal expert, can override what Justice White has said. If the department and the Prime Minister thought that Justice White was wrong, they could have appealed it to the full bench of the Federal Court, but they didn't. They didn't. So what do they go off and do now? They now come out with this approach that says, 'Let's just ignore what the judge said.' That's why I stand up in this chamber upset. That's why I'm having a go at public servants directly, noting their seniority and the need for them to respect the law of this land. That's why I stand up and say what I do and that's why I'm doing it on a regular basis. It's unacceptable. It's unacceptable to the Australian public.

The principle, in general, that Australians are not allowed to see some of the really important decisions that were made by the national cabinet and that affected their liberties is unacceptable. They weren't allowed to see the AHPPC's advice as to whether children should go to school or whether we should have lockdowns or what constitutes a hotspot. All of that sort of stuff ought to have been made available to the public. It should have been made available to the public, and the Prime Minister should have recognised that the release of that information was important. It was important for public confidence, but he failed to recognise that. That's why I'm disturbed about what's happening here.

We've got another official, Petra Gartmann, who simply has not had regard to her obligations, basically trimming her sails to the political will of the Prime Minister. It is quite appropriate for me to walk in here, noting that the government spent money on a QC to challenge me at the AAT. They spent all that money. I want to know how much it was, and the Prime Minister is refusing to provide me with that information. That's why I come in here, week after week, day after day—and I'll continue to do so in the very few sitting weeks that we have next year—to press for this answer. Gee, I hope by February I've got an answer to this question!

The government need to understand: our role is oversight. Our role is to inquire to inform ourselves as to what the government are doing on behalf of the people, and also to question what they're doing on behalf of the people. That's exactly what we do when we ask a question on notice. We're not doing it for ourselves. We do it for our constituents, the people who we represent and the people who actually pay the ministers' salaries and the public servants' salaries. It is completely disrespectful that the government takes more than the 30 days allowed in the standing orders to answer these questions. I hope that, the next time I stand, I will not be needing to exercise standing order 74(5).

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

The question is that the motion as moved by Senator Patrick to take note of the minister's answer be agreed to.

Question agreed to.