Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Pursuant to the order agreed to earlier today concerning the Freedom of Information Commissioner, I call the Minister representing the Attorney-General, Senator Watt.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

On 27 March this year, the government complied with the order for production of documents relating to the resignation of the Freedom of Information Commissioner and some related matters agreed between the Greens party and the Liberal-National coalition. On behalf of the Attorney-General, I tabled dozens of pages of documents in response to the order. Material irrelevant to the order was not produced. I also made a public interest immunity claim on behalf of the Attorney-General over parts of those documents and other documents. That claim, related to cabinet deliberations and privacy, was consistent with longstanding and accepted Senate practice. I commend my letter to the President for the details of that claim, including the harm that would result from disclosure. I note in particular that it is totally obvious that questions about resourcing of agencies go to the heart of the budget process and therefore the heart of the cabinet process. It's perhaps not surprising that the Greens party struggles to recognise that, not being a party of government, but the Liberal and National Party coalition, including failed ministers from the former government, understand it all too well.

The coalition's support for the original order and its support for the motion today are acts of wanton opportunism. During their nine years in office, the coalition had absolutely no respect for this chamber. The former government routinely ignored orders to produce documents; the former government routinely refused to answer questions from committees and senators; and, relevantly, it treated the freedom of information system with utter contempt. It left the position of FOI Commissioner unfilled for seven years. The position was filled on the eve of the last election, without a merit based selection process.

The former Prime Minister, Mr Morrison, created a sham cabinet committee to hide documents from scrutiny. He declared, without any basis, that National Cabinet was a committee of the federal cabinet. Mr Morrison also created a bespoke exemption when responding to FOI requests. His office used to tell applicants that he was above the law. The former Prime Minister refused to answer questions from the parliament and the press about his attempt to invite Brian Houston to the White House and about his QAnon house guests at the official residences.

The former government turned scandal into an art form, whether it be sports rorts, carpark rorts or the Leppington Triangle affair. Senator Cash famously hid behind a whiteboard so she didn't have to take questions about her refusal to make a police statement regarding her office leaking details of a police raid on a union office—

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator Scarr, on a point of order?

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

There's a personal reflection on Senator Cash, impugning her motive. Saying she 'hid' behind a whiteboard to avoid questions impugns her motive. It's a personal reflection on Senator Cash, and it should be withdrawn, especially in light of the statement earlier today from the President.

The Deputy:

To keep the chamber orderly, Senator Watt, I'd ask you to withdraw.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I withdraw. The now shadow treasurer, Mr Taylor, of course, was caught up in the incident involving fake documents to attack the Lord Mayor of Sydney, and he never explained or apologised for his role in the grasslands scandal involving his appropriately named company Jam Land. The now assistant shadow treasurer Mr Robert attracts more controversy by—

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator Scarr, on another point of order, I assume?

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Yes, it's another point of order. I think it's good that the minister withdrew his previous remark, but now he's just moved on to cast personal reflections on another previous minister and member of this place. Again, he should withdraw and take note of the President's statement.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

I don't believe it reached the level of requiring withdrawal. I call the minister and ask him to be cautious with his statement to the house.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thank you for that ruling, Deputy President. In fact, I revised the words of what I'd been provided to take note of your earlier ruling. But it is true that, in addition to Mr Taylor, Senator Cash and many other ministers, the now assistant shadow treasurer Mr Robert attracts more controversy by the day, sometimes by the hour. Let's not forget Mr Morrison's secret ministries. They were, in fact, so secret that he didn't even tell his co-portfolio ministers, let alone the parliament.

On behalf of the Attorney-General, I maintain my public interest immunity claim. I also note the misunderstanding present in the motion presented by Senator Shoebridge with the unflinching support of his new friends in transparency, the coalition. The order for production did not seek a resignation letter from the FOI Commissioner. Further, I refer the Senate to one of the documents tabled by the government, the FOI Commissioner's message to staff on 6 March 2023. That message begins:

Dear colleagues,

I am writing to let you know that I've written to the Governor-General to resign my appointment …

As I outlined in my letter to the President on 27 March this year, in the 2022-23 financial year the government provided the OAIC with $29.6 million in funding. The government will continue to work closely with the Office of the Australian Information Commissioner to understand resourcing requirements to ensure its effective operation. Unlike the former government, we will fill the position of FOI Commissioner, and it will be filled with a candidate selected through a merit based selection process.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I move:

That the Senate take note of the explanation.

Rarely have I heard such tosh. The minister stands up here and has the gall to say that the order for the production of documents did not include the resignation letter of the commissioner, a commissioner who could barely spend 12 months in the job, with this government refusing to fund his office and refusing to fund freedom of information requests. Less than 12 months into the job he basically resigned in disgust. The order for the production of documents included:

… briefing notes and file notes held by either the Attorney-General and/or his office and/or the Attorney-General's Department, as well as any correspondence between the Attorney-General and/or his office and the Attorney-General's Department in relation to the resignation of Mr Leo Hardiman …

Did the commissioner not resign via correspondence? Was it a smoke signal that was sent from the commissioner? Did he do it by pigeon or some sort of weird hand signal from place to place?

Of course it covered the letter of resignation.

Of the specious nonsense we just heard from the government there, if that is really the quality of the legal advice coming out of the AG's office—saying that the letter wasn't covered by the order for papers—it's an embarrassment to the office. It's an embarrassment to the minister to come and repeat that rubbish in the Senate. Of course it was covered. If they have some ridiculously patently false legal argument for why it's not covered, give them credit for having tried to come up with some creative legal argument in the office about why it's not covered. Assume they did that—that they spent a week coming up with that rubbish. Assume they did that. If they did do that, then less credit to them too. If they did that, then less credit because obviously the resignation letter was being sought in this. If they have come up with some specious legal nonsense that satisfied them when they got around the water cooler and tried to come up with ways of defeating transparency, that's even less credit to the Attorney. I say again it won't end here. To the minister: produce the resignation letter. To the Attorney: live up to the rhetoric and you won't be embarrassed like this.

We've heard a lot of rhetoric about wanting to fix freedom of information. I want to be clear that it fell into deep disrepute under the previous government, with a gross lack of funding and contempt from ministers and departments about the system. But this government came in promising it would be different. We had all the rhetoric from the Attorney as a shadow. I've got to tell you, as soon as the shadow disappeared, there sure as hell wasn't any sunshine. We haven't come from a shadow A-G to one that wants to put sunshine on the workings of government. We've come from a shadow A-G to an even deeper shadow in government. This was a chance to try and do the right thing and to actually show us why the commissioner resigned. The public needs to know why the commissioner resigned less than 12 months into a five-year appointment. We're asking to shine some sunshine on the resignation of the FOI Commissioner. You couldn't have a greater example of political irony than the new Attorney-General responding to a call for papers about the resignation of the FOI Commissioner with a specious, rubbish legal argument about why it wasn't covered and then pages and pages and pages of blacked-out documents. This return was like high-level political irony.

But I have to say, if the Attorney-General and the minister think we'll be satisfied with a nonsense explanation and pages and pages of blacked-out documents on something as critical as why the Freedom of Information Commissioner resigned and why they won't show us the resignation papers, then I think there's going to be a surprise coming because it won't end here. It won't end with that ridiculous nonexplanation from the minister. The Senate deserves answers, the thousands and thousands of Australians who have been waiting years to get their FOI reviews resolved deserve answers, and the people of Australia deserve answers, not that tosh we just got served up.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I think it would be fair to say that it is not often that Senator Shoebridge and I are going to ever agree in this chamber. But, Senator Shoebridge, in relation to the response that has just been provided to the chamber by Senator Watt, I heartily agree with your comments. That was absolute tosh, nothing more and nothing less. Clearly, Senator Watt, on behalf of the Attorney-General of Australia, doesn't actually get the irony of what he was responding to—an order for the production of documents in relation to the resignation of the Freedom of Information Commissioner. One would think the mere fact that it was about the Freedom of Information Commissioner would actually trigger them, perhaps, as a government that allegedly believes in transparency and integrity, to be a little freer with the information that they provide. But, instead, all we got from Senator Watt on behalf of the Attorney-General was personal reflections in relation to ministers in the previous government. I often say, 'If you can't actually address the policy, why not just go for the person?' Well, guess what? That does not work when you are providing an explanation to the Australian Senate.

But I do note that the explanation was provided on behalf of the Attorney-General of Australia. The Attorney-General is someone who talks a very, very big game. But when it comes to practising what the Attorney-General himself loves to preach—to all Australians, not just to the legal fraternity—he fails in every regard, particularly in relation to the dismal response to the order for the production of documents.

I want to quote the Attorney-General from a speech he gave as we marked International Universal Access to Information Day, also known as Right to Know Day. This is the Attorney-General of Australia setting out the Albanese government's principles when it comes to access to information. He says:

This global event recognises the importance of the community's right to know and to access to government-held information.

It also reinforces the role of government in promoting transparency and accountability.

He then makes a comment in relation to the previous government. He says:

Regrettably, the previous government did not believe that Australians have a right to know.

But it's the next few words by which the Attorney-General will, unfortunately, stand damned. He says:

In contrast, the Albanese Government is committed to restoring public trust and strengthening standards of integrity in our federal government.

Well, he's certainly preaching. He continues:

Open access to information is essential for good decision-making, genuine engagement in democratic government, and combatting corruption.

Again, the bad news is that he's only preaching here. Then—in fact, I'd almost believe that I would have got something better than what was provided to the Senate—he says:

Citizens need this access to know how they are being governed.

He also says:

Today, we also acknowledge the importance of the Freedom of Information Act.

…   …   …

The proactive disclosure of government-held information promotes—

Colleagues, wait for it—

open government and advances our system of representative democracy.

The bad news for the Attorney-General of Australia—again, he loves to preach; he's well known for it, especially in legal circles around Australia—is that he is also known for the fact that he fails to practise. What was on display today was a justification by the minister representing the Attorney-General of Australia in relation to his failure to practise the standards that he so eloquently preaches to others around Australia when it comes to access to information but, not only that, the standards that he continues to tell Australians that Albanese government will be judged by.

This is how he concluded the speech:

I want to conclude by assuring you all that the Albanese Government is firmly committed to transparency and accountability, to ensure we have better government for all Australians.

What an absolute load of tosh, as Senator Shoebridge so eloquently said.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

I was going to give the call to Labor, but in the absence of someone seeking the call—is anyone from the Greens seeking the call?—I will call Senator Scarr. But I point out that if another Labor member later, after Senator Scarr, seeks the call, I'll give the call to Labor.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

I note that a reference has been made to the Legal and Constitutional Affairs Committee, of which I'm the chair, in relation to the position with respect to Australia's FOI laws, and I congratulate Senator Shoebridge on being part of that reference. Like Senator Shoebridge, I must say that this is just bizarre; this is absolutely bizarre. I'm actually in the process of rereading Franz Kafka's book The Trial, and this Kafkaesque.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Well, there was a political metamorphosis!

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Exactly. This order for the production for documents says—and there are people in the gallery listening to this, so I want to read this out. This is what this Senate ordered and provided to the Attorney-General with respect to this order for the production of documents:

Any correspondence between the Attorney-General and/or his office and the Attorney-General's Department in relation to the resignation of Mr Leo Hardiman PSM KC as Freedom of Information Commissioner, dated 5 March 2023—

any correspondence. And we hear that the letter of resignation, the actual letter of resignation, isn't captured on the basis of the Attorney's interpretation of the order for the production of documents. He didn't consider the letter of resignation to be captured in the order for the production of documents. This is absolutely bizarre.

In agreement with Senator Shoebridge, it baffles me that someone could look at the words in that order for the production of documents, look at the substance over form. You don't have to do that, but if you look at the clear intention of the document—'provide us with all of the documents in relation to the resignation of the Freedom of Information Commissioner'—would that include the letter of resignation? Yes, I think it might. I think that might be a relevant document in relation to the documents pertaining to the resignation of the Freedom of Information Commissioner. It might be directly relevant. It might go to the heart of the issue! And to actually have this debate in relation to the failure of the Attorney to meet the order for the production of documents in accordance with its clear terms, to have this debate with respect to the suppression of information in relation to the Freedom of Information Commissioner himself, it's even more bizarre and more Kafkaesque! It's just extraordinary stuff.

I feel sympathy for Senator Watt, from Queensland, that he actually had to come in and read that statement. It must have been embarrassing for him. And it's not the first time he's been forced to come into this chamber and read a statement on behalf of another minister, which no doubt caused him embarrassment. I can remember the time he had to come into this chamber and read the statement with respect to Nauru not being continued as a regional processing country because it had been overlooked by the Minister for Home Affairs. He had to come and explain that situation, and now he's had to come in and explain this. Just reflect on how silly this is, that the resignation letter of the Freedom of Information Commissioner was not considered relevant for an order for the production of documents—all documents—relating to the resignation of the Freedom of Information Commissioner. It is just bizarre. It is Kafkaesque.

Seriously, the Attorney needs to reflect on this. This is an embarrassment. The Attorney is the first law officer of the Commonwealth of Australia. He is the first law officer. He needs to reflect on this because this is an absolute embarrassment.

Bridget McKenzie (Victoria, National Party, Shadow Minister for Infrastructure, Transport and Regional Development) Share this | Link to this | Hansard source

enator McKENZIE (—) (): I rise to support not only Senator Shoebridge in seeking documents from executive government, as is the right of all senators in this chamber, and has always been, but also the comments of Senator Cash and Senator Scarr.

Sadly, what we have seen from this government over 10 months is the decline in transparency, the decline in accountability, the decline in integrity and, indeed, the decline in respect for this chamber. We've seen it this week in guillotine motions over significant legislation. We've seen it with the way they treat senators not in the executive or not in government, they way they allocate speaking time and the lack of answers to significant questions.

I listened to Senator Watt's contribution where he freelanced from Minister Dreyfus' comments. He severely reflected on ministers in the former government, current senators and former prime ministers—as if that is the only reason they haven't complied with a very sensible order for the production of documents from Senator Shoebridge.

We shouldn't be surprised because, indeed, it was Senator Watt who, whilst in here earlier this week, realised he'd actually forgotten another essential document to him actually complying with an order of the production of documents around Australian Organic. It slipped his mind that the letter from Australian Organic to him as agriculture minister in December was part of the documents requested. Only once that organisation had themselves publicly released that private correspondence did he suddenly rush in here and table it—just incredible—along with another 13 documents he'd actually forgotten to lodge the first time. It is casual disregard.

These ministers, who are senators, should know better, and they should not be spending their time assisting ministers from the other place to take this chamber seriously. This is a powerful house of examination. This is the place where the diversity of Australia's voting public is expressed in a unique way. So there are requests from this chamber that will be made periodically that would never happen over in the other place, because this is the only place we can hold the executive to account. This is our role, and it's one that we, I think, should take very, very seriously. In terms of Odgers', I would just like to quote from page 7:

The most dangerous of all sinister interests is that of the executive government, because it is the most powerful.

Therefore, the Senate has a unique and special role to play, and the executive government in this place needs to do their part by treating senators and this chamber with respect.

The Attorney-General talks a lot about transparency, accountability and integrity. They're not just words; they're actually character traits and behaviours that you must exhibit not just as a citizen in your personal life but also, clearly and essentially and desperately, as someone that is in a position of power. We were quoting the A-G on 28 September 2022:

… we are serious about restoring trust and integrity to government.

Well, if you're serious about restoring trust and integrity to executive government, guess what? Table the documents that are ordered by the Senate.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

It's a low bar.

Bridget McKenzie (Victoria, National Party, Shadow Minister for Infrastructure, Transport and Regional Development) Share this | Link to this | Hansard source

Absolutely. Again, on 1 December last year he was concerned about 'a breach of the principles of parliamentary responsibility and accountability'. Attorney-General, you can't just go on ABC Radio Melbourne and make contributions in the parliament on Hansard throwing these words around so casually. You must live by it. You must actually table the documents and treat this Senate with the respect it deserves.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

If there are no further speakers, I will put the question that the Senate take note of the explanation. We will move on to the order agreed to earlier today concerning the national minimum wage.

Shouting from your seat and waving your hands around to me means nothing. Is there a point of order?

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

First of all, I wasn't waving my hands, and, secondly, I wasn't shouting. The point of order—

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

You were shouting at me, then there was the hand-waving. Don't argue. Have you got a point of order?

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I wasn't waving my hands, and I wasn't shouting—

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Have you got a point of order?

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

You're reflecting inappropriately from the chair on a member.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Do you have a point of order?

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I have a point of order.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

What is it?

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

You failed to put the last question.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

I just put the question. Were you not listening? I put the question, and I'll do it again.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I'd just ask for courtesy from the chair. You did not put the question.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

I put the question, and I'll do it again. Resume your seat. As I said before, the question is that the Senate take note of the explanation. Do you want the question read again?

Question agreed to.