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LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
Program 2—Legal services to the Commonwealth
Subprogram 2.1—Australian Government Solicitor
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LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
Program 2—Legal services to the Commonwealth
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Subprogram 2.1—Australian Government Solicitor
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LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
- Start of Business
Program 3—Community affairs
- Subprogram 3.1—Human Rights and Equal Opportunity Commission
- Subprogram 3.2—Law Reform
- Subprogram 3.3—Office of Film and Literature Classification
- Program 4—Administration of Justice
Program 4—Administration of Justice
- Subprogram 4.5—Other tribunals
- Subprogram 4.2—Family Court of Australia
- Subprogram 4.3—Administrative Appeals Tribunal
- Subprogram 4.4—National Native Title Tribunal
Program 6—Maintenance of law, order and security
- Subprogram 6.3—National Crime Authority
- Subprogram 6.6—Australian Transaction Reports and Analysis Centre
- Subprogram 6.7—Office of the Director of Public Prosecutions
Program 1—Legal policy and services to the Commonwealth
- Subprogram 1.1—Executive and support
- Subprogram 1.2—Civil Law Division
- Subprogram 1.3—Criminal law division
- Subprogram 1.4—Information and Security Law Division
- Subprogram 1.5—Office of International Law
- Subprogram 1.2—Civil Law Division
Program 2—Legal services to the Commonwealth
- Subprogram 2.1—Australian Government Solicitor
- Subprogram 2.2—Solicitor-General
- Subprogram 2.3—Office of Parliamentary Counsel
- Program 3—Community affairs
- Program 5—High Court of Australia
Program 6—Maintenance of law, order and security
- Subprogram 6.4—Common police services
- Subprogram 6.2—Australian Federal Police
- Subprogram 6.5—Community protection
- Subprogram 6.8—Australian Security Intelligence Organisation
- Senator COONEY
Content WindowLEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE - 02/06/98 - ATTORNEY-GENERAL'S DEPARTMENT - Program 2—Legal services to the Commonwealth - Subprogram 2.1—Australian Government Solicitor
Senator McKIERNAN —There are large sums of money being moved around as part of the planned reforms of the AGS, the Australian Government Solicitor. Exactly what are the sums, what do they relate to, and why are they necessary?
Mr Boucher —Senator, I am referring to page 66 of the yellow book. As explained there, basically there will be a need for some working capital advance for the AGS, which is, I think, self[hyphen]explanatory. Mr Hine might be able to elaborate if you want any further elaboration. The next item is for lease termination costs. Essentially, the situation is that in some locations we have too much floor space for the number of staff we have and the amount of work we have. Based on a financial analysis, we are looking, where we can, to terminate those leases and reduce in size while continuing our presence in the cities. They are in Sydney, in Adelaide, to a small degree in Darwin, and I think there is a little bit of work being doing in Melbourne as well. I think really that is the essence of the moneys being moved around that you have mentioned, Senator.
Senator McKIERNAN —Just to stay with the lease breakages: is that a final figure, or is that an estimate of what it might cost?
Mr Boucher —It is an estimate.
Senator McKIERNAN —So it could move up or down?
Mr Boucher —I do not think it will be more than that, but it might be less—and I hope it will be.
Senator McKIERNAN —Is there any subletting taking place within that, or have you looked at any possibility of subletting part of that to other government agencies?
Mr Boucher —In every case, people are looking at the possibility of subletting—whether to other government agencies or to private sector bodies.
Senator McKIERNAN —This shows an $8[half ] million cost. Can you give an estimate of what the cost would have been if the leases in some or all of those areas were not broken?
Mr Boucher —I would have to take that on notice, Senator.
Senator McKIERNAN —If you would, Mr Boucher, and could you break it down to the four cities that you have mentioned. Are there any cities where there will be no AGS presence at all?
Mr Boucher —Not as we currently plan and intend. We intend to continue to operate in every state and territory capital city.
Senator McKIERNAN —Also noted in the PBS is the fact that you are planning to show a $5 million dividend next year. What is happening for this year?
Mr Boucher —This year, in addition to lease break costs, we are doing and have done some significant voluntary redundancies. They will affect the bottom line. I think we will probably report a loss this year because of that factor.
Senator McKIERNAN —Do you have a figure on the cost of the redundancies?
Mr Boucher —I would have to take that on notice, because part of that program is current. I can give you a figure for whatever date we look at the information, but I could not give you a precise figure today.
Senator McKIERNAN —Okay, I accept that. Do you have any expectation of what the loss might be for the year?
Mr Boucher —Again, I would prefer to take that on notice. We have had a very good trading month just past, and I would like to see those figures, which I have not yet done.
Senator McKIERNAN —The $5 million for next year is mentioned: do you have any figures for the forward years, the out years from there in terms of profit?
Mr Boucher —In each of the out years we will be intending to report a profit. We are in discussion with the Department of Finance and Administration and with Attorney[hyphen]General's, of course, on our corporate planning process, but we do accept and intend to report profits in each of those years. Part of the voluntary redundancy program that I have just mentioned has as its purpose putting us in a position to report such profits.
Senator McKIERNAN —What will the tax impost be on the profits?
Mr Boucher —The tax situation is also a complex matter. We are in discussions, and it has not been settled yet. We will pay a tax equivalent, if I am understanding your question correctly. Again, that is something to be settled in discussions with those two departments.
Senator McKIERNAN —Tax equivalent to company tax?
Mr Boucher —Probably.
Mr Hine —Or thereabouts.
Mr Blunn —I think the issue in debate is what the level of tax should be. But, broadly speaking, it would be a tax which would equate to the practice for a comparable private sector organisation.
Senator McKIERNAN —They would pay a standard rate or company tax as applicable to—
Mr Blunn —There are lots of taxes, Senator, and there are lots of ways of minimising tax. Some of those ways will not be available, I think, to the AGS, and that is one of the problems. It will be very difficult to strike a comparison. For example, the AGS will not have access to trust arrangements which may be available to other firms and which would minimise tax liability. Those sorts of issues are the very issues that are making this issue very complicated, and we are trying to find our way through them. I think that would be a fair statement, wouldn't it?
Mr Boucher —Indeed. Law firms also are partnerships, typically, so that is another complicating factor to take into account in considering the tax treatment.
Senator McKIERNAN —If you are acting for a client and the client paid up[hyphen]front—in private practice—that money would go into a trust account: that facility would still be available to AGS, would it not? Is that what you are talking about in terms of trusts?
Mr Hine —No.
Mr Blunn —No, it is the arrangements of the partnership that involve trusts which are usually used to minimise tax.
CHAIR —But the individual partners would have those trust mechanisms?
Mr Blunn —Yes, but what it does is change the dynamic of the whole organisation. That is what I am saying.
Senator McKIERNAN —So you are currently in negotiations with the ATO to—
Mr Boucher —No. The departments of Finance and Administration and Attorney[hyphen]General's. I did not say the ATO.
Senator McKIERNAN —No, you did not say the ATO—I am sorry, I did not mean to put words in your mouth. But wouldn't the ATO have to be involved in this somewhere along the line?
Mr Boucher —I think they may well have to be, but that is a step we have to come to yet, Senator.
Senator McKIERNAN —But you are searching for a level playing field, are you, on behalf of AGS?
Mr Boucher —Certainly that is my objective.
Mr Blunn —Yes, that is what we are searching for.
Senator McKIERNAN —Have you got an estimate of the overall increases in the AGS running costs? What is estimated to come from paying for more staff as an incentive to keep them with AGS?
Mr Boucher —No, I do not have such an estimate. We are also at present engaged in discussions with staff and the union on a certified agreement. We have a way to go yet on that. We have some proposals for Australian workplace agreements. We have a broad figure in mind for the workplace agreements but it is really a complex situation and subject to negotiation.
Senator McKIERNAN —I am pleased to hear you have got it in mind. One would have to have, but I will not press that one further. What is the salary package for the CEO of AGS? Has a decision been made on that yet?
Mr Boucher —Yes, Senator. It is a personal matter but I have no trouble particularly in informing the committee that I have equivalent terms to those of a secretary.
Mr Blunn —To those of the secretary of the Attorney[hyphen]General's Department and several other departments—but not all secretaries, I have to say. There are two grades of secretaries.
Senator McKIERNAN —Yes, one with leather seats and one without—is that it?
Mr Blunn —We both wish. We would like to be in the upper grades but we are not. No, the secretaries of the Department of the Prime Minister and Cabinet, Treasury and Defence are paid at a higher rate than the other secretaries. The rate that has been determined for the CEO of the AGS is at the rate that applies to other secretaries—and the conditions that apply also.
Senator McKIERNAN —I accept that it is a personal matter. I was not actually seeking to put you on the spot here but, earlier in the day, we had questions asked about salary packages to judges of the Federal Court. I did not think that if it is on the public record that it is necessarily a personal thing. What other appointments, within the AGS, have salary arrangements been determined on now? Have all the senior levels been determined?
Mr Boucher —The staff of the AGS remain, as of today—and will for a little while at least yet—as members of the Australian Public Service and so they have the various salary levels appropriate to their levels. That is the answer.
Senator McKIERNAN —How would they compare with the old salary levels that were in the old AGS?
Mr Boucher —They are exactly the same as at today. We are still, in fact, officers of the Attorney[hyphen]General's Department. Administratively, we are part of the AGS and we are being run as a separate body but within the department and within the Attorney's portfolio, of course.
Senator COONEY —Just following on from what Senator McKiernan had to say, the objective in the portfolio budget statements 1989[hyphen]99 for the Australian Government Solicitor reads that it is to:
Achieve the best possible outcome for clients in the conduct of their affairs by providing high quality legal services at a commercially viable cost.
That is the sort of objective, I think, that any private solicitor would have. I think you have said that is your position in terms of the objective, but then you have gone on to tell Senator McKiernan that you are still bound into the Attorney[hyphen]General's Department.
Mr Boucher —There is legislation before the parliament which would have the AGS established as a separate statutory authority and—going back to Senator McKiernan's question—with different employment conditions.
Senator COONEY —But still only able to act for government clients.
Mr Boucher —A great strength, Senator—a great strength.
Senator COONEY —Yes. But say, for example, if we come—not that I know whether we will or not—to the issue of sub judice. What is your relationship with your client, because it could make a difference if you are an independent solicitor? I suppose that another particular relationship could develop if you are a member of government—or could be seen to have developed. Which is the appropriate one?
Mr Boucher —Under the Judiciary Act at present—and I do not think it is proposed to be changed—we will have, in the AGS, the same rights, privileges, duties and obligations as lawyers in private legal practice.
Senator COONEY —That is when the amendments come in?
Mr Boucher —No, that is the current situation.
Senator COONEY —But you really haven't, have you? You cannot set your own wages, you cannot go and gather clients. I have said before that you could not take them out for a meal.
Mr Boucher —We have a number of advantages—
Senator COONEY —But you cannot do those things, can you? You have got some advantages but when you say `We are the same as an ordinary solicitor' that is not quite right, is it?
Mr Blunn —I think we are dealing with different concepts here, Senator. When Mr Boucher referred to having the same rights, obligations and duties he was really talking about the rights inherent in a solicitor vis[hyphen]a[hyphen]vis his responsibilities to courts and to people, not to his capacity to practice in the private sector or not.
Senator COONEY —Is that what the act says, is it?
Mr Blunn —I think that is the intention of the act.
Senator COONEY —But is that what the act says—that it is confined only to the rights and privileges that a solicitor might have, apropos of—
Mr Blunn —It is in the act now, and we do not have—
Senator COONEY —This is what you have told me at the moment in answer to my questions: that the Judiciary Act reads that the Australian Government Solicitor shall have all the rights and privileges and what have you of a private solicitor but only in so far as—
Mr Blunn —It actually gives me those rights too; it is much broader than the AGS.
Senator COONEY —So you are saying that, when I get the act out, it will say that only in so far as it affects its relationship with the courts—
Mr Blunn —No, with great respect—
Senator COONEY —But that is what you have told me. You were rushing in, Mr Blunn. I asked you and you kept saying that is what it says. I then asked: does it go on to say that it is only in so far as it talks about the courts? And you did not deny that—
Mr Blunn —I answered it differently, with great respect. I think what I said was that it relates to the rights and duties of a solicitor in terms of his role as a solicitor as opposed to his ability to carry out a particular duty—but, if I rushed in, I apologise. I am very happy to withdraw.
Senator COONEY —That does not matter. I just went on to ask: you say that the act reads that way but it confines it to the relationship to courts and clients. Is that what the act says?
Mr Blunn —I am trying to be helpful. I am saying that that is what the act says now about the Attorney-General's Department and those elements of the Attorney-General's Department which are involved in what might be described as the practice of law.
Senator COONEY —So they use the expression `in so far as it is in their relationship with the courts and clients'?
Mr Blunn —And I did not say that either. I added a number of other words. I do not know how I can help you further.
Senator COONEY —But you can, because you could say just what the act says. You have put an interpretation on the act.
Mr Blunn —With respect, Senator, Mr Boucher listed a number of things which he described as being in the act, and you asked whether that went to the right to practice in the private sector. I tried to help by pointing out that those provisions apply to the Attorney-General's Department now and relate to the role of an officer of the Attorney-General's Department.
Senator COONEY —And then I asked, with respect Mr Blunn, what the terms of the act were. I keep asking about the terms of the act and you will not answer me. Forget about it—
Mr Blunn —I can read them out, if you wish.
Senator COONEY —It does not matter, because I think we apparently keep not being able to understand each other. I was asking about the terms of the act, and you seem to be putting your interpretation on it. If we cannot communicate, we cannot communicate. That is the end of it.
CHAIR —I will not encourage it to go on. Are there any other questions on AGS?
Senator McKIERNAN —You mentioned the legislation—it is a pity the minister is not here—but where on the Notice Paper is the legislation in terms of priority?
Mr Boucher —I do not know offhand.
Senator McKIERNAN —Won't the fact that the bill is not passed affect the workings of the reformed or reconstituted AGS?
Mr Boucher —It would be preferable if the legislation goes through at some point in time. But we have been operating as a legal practice and charging fees, and we have been significantly in competition for some time now. I do not see our ability to do that being at all compromised by reason of a delay in the legislation just at the moment.
Senator McKIERNAN —Have you sought any legal advice that you might be acting in an unlawful way?
CHAIR —Do you know any good lawyers?
Mr Boucher —I do not know if that is a comment or a question.
Senator McKIERNAN —It swung on an earlier response to a question because it also relates to the appointment of people. In essence, we have a corporatised government body which is not a corporatised government body at all because you are still employed under Public Service conditions, are you not?
Mr Boucher —For a very long time, going back to 1984 when it started, the Australian Government Solicitor has been a statutory corporation and it has been staffed—these are not the words of the legislation—by officers of the Attorney-General's Department who are employed under the Public Service Act. The situation today is no different from what it was in that regard.
Senator McKIERNAN —Why do we need to track down the role of legislation then to change things—apart from it just being preferable?
Mr Boucher —There are some purposes—which Mr Blunn and his colleagues might wish to talk about—set out in the legislation that relate to the governance of the legal services market, which will be a role for Mr Blunn and the department, and there are some provisions in the broad that relate to the AGS. I think I am right in saying that they are the broad purposes in that twofold way of the draft legislation. I do not think Mr Blunn would be uncomfortable with what I have just said.
CHAIR —If you want to wait until after you have read the Hansard , let us know.
Mr Boucher —Thank you.
Senator McKIERNAN —But you will not get the Hansard for a couple of days, which is another point I should have remembered earlier when we were talking about questions on notice. Because we are sitting as an estimates committee while the House of Representatives is sitting, we are going to have a delay in getting the Hansard to us, which will create even greater problems for us than we normally would encounter.
CHAIR —Fine, that is noted. Are there any further questions on the Australian Government Solicitor?
Senator COONEY —I thank Mr Blunn for giving me the relevant section of the bill.
CHAIR —Has that excited some more questions?
Senator COONEY —It has. There seems to be nothing in the proposed legislation to stop you from trying to gather clients wherever you can, Mr Boucher. I will just read proposed section 55Q:
(1) An AGS lawyer acting in that capacity is entitled:
(a) to do everything necessary or convenient for that purpose; and
(b) to practise as a barrister, solicitor, or barrister and solicitor in any court and in any State or Territory; and
(c) to all the rights and privileges of so practising;
whether or not he or she is so entitled apart from this subsection.
Mr Boucher —The bodies for which the AGS can act in the broad—and here I am not relying on the precise terms of the legislation but on the general constitutional position—are the bodies that are Commonwealth bodies; in other words, departments and agencies of the Commonwealth. I am not a constitutional lawyer, but that is our clear understanding not only of the constitutional position but also of what the government expects of us. That is whom we act for. We do not seek clients in the private sector.
Senator COONEY —Then proposed section 55N reads:
(1) In performing its functions, the AGS may provide services to the following:
(a) the Commonwealth;
(b) a person suing or being sued on behalf of the Commonwealth . . .
And so on. So you can provide services on behalf of the Commonwealth. If you are going out there to compete, do you not have to compete on the public relations front as well?
Mr Boucher —We do undertake modest public relations efforts sometimes. But the best way we can market the AGS is in doing our work well, which is what I believe my colleagues do.
Senator COONEY —But you would get that answer from any solicitor, wouldn't you?
Mr Boucher —I am giving it to you from the AGS.
Senator COONEY —All I am saying is that it is an interesting approach. Have you acted for anyone in the present wharf dispute?
Mr Boucher —There are a range of matters relating to the wharf dispute.
Senator COONEY —I take it from that answer that your answer is: no, the AGS is not acting for anybody presently engaged in the waterfront dispute—
Mr Boucher —No, that is not my answer. My answer is that I would prefer to take that question on notice because this is a very complex area.
Senator COONEY —Can I say that if you asked most solicitors I know, `Are you acting for a particular client?', they would know.
CHAIR —I am sure that Mr Boucher knows. It is a question of whether or not he wants to divulge it; is that right, Mr Boucher?
Mr Boucher —My answer is that I would prefer to take it on notice because this is a complex area. There are a number of legal actions. I would prefer to be able to be accurate for Senator Cooney than to give an off the cuff reply.
Senator COONEY —But I take it from that that you now sitting there do not know whether you are acting for anyone in the waterfront dispute. You have to check. You are unable to tell us today—
Mr Boucher —I know broadly what the AGS is doing, and what you said is not correct.
Senator Vanstone —You could direct your questions through me, if you would not mind.
Senator COONEY —Thanks for coming.
Senator Vanstone —Thanks for coming back, Senator Cooney, I have only been absent for one or two minutes.
Senator COONEY —I was not having a go. I simply said that in terms of when I started asking questions 30 seconds ago you were not there. Now you are—
CHAIR —And we are all delighted.
Senator COONEY —And we are all delighted. You heard me on my mantra about the Australian Government Solicitor becoming like any other solicitor. What I am putting to Mr Boucher is whether the AGS has acted for anybody involved in the waterfront dispute, and he said he would prefer to take that on notice. I said that I could not see why it would be appropriate to take that on notice.
Senator Vanstone —Well, I can see why. As I indicated earlier—the government is not trying to catch anybody out here—when I made my very brief opening remarks, I chose to make it clear, rather than leave it until the time that people might wish to ask questions on the waterfront, what position I would be taking. It is the same position that every other minister in each estimates committee will be taking, despite the fact that I am advised, Senator Cooney, that some of your colleagues—certainly not yourself—are already trying to suggest that different ministers are taking different approaches. They are doing so unwisely, I might suggest, in Hansard at various estimates committees and in the gallery.
The position is perfectly simple; it is perfectly clear; and it is perfectly explicable. The government is not walking away from the requirement to be accountable to parliament but it is equally not walking away from its responsibilities to be cognisant of the fact that proceedings are on foot. And, on that basis, it will take questions on notice and consider all of them.
What you are saying, Senator Cooney, is that you think this one is obvious and you want that one answered. Then we will just go through the process of you pursuing whether it is reasonable for someone to know the answer to that or not. This is the point I made, Senator Cooney: it is not that the answers might not be known—albeit they might not be known to me—but that the context of the answers and the use of them, and their impact on the proceedings, might not be known. On that basis, we would be very happy to take the questions on notice. I indicated to you that I would take them away. To the extent that some of them are answerable rapidly, they would be answered rapidly; and, to the extent that they are not, further consideration would be given to them. We can go through asking question by question, but the answer is going to be the same each time.
Senator COONEY —Can I just tell you my position. I think parliament is entitled to know about matters, particularly when there is no criminal content in any of the issues that are now before the court. So nobody here will be threatened by any criminal law proceedings—this is all civil law stuff.
The government wants to do two things. Firstly, it wants to keep certain information away from the parliament; and, secondly, it wants to keep the high moral ground. I do not think you can have both. I cannot in any way force you to discover information. But what the government is attempting to do is to cover that approach by saying, `No, we're not going to give you any information. You can sit there until the cows come home, we're not going to give you any information.' I can understand that. But what you cannot do is then cover that by a high moral argument that this is sub judice, because it is not.
Senator Vanstone —Senator Cooney, with respect, either you have not understood or I have not made myself clear. What I have indicated to you is that we are happy to take any questions you like to put in respect of this matter, but they will be considered before they are answered. When judicial proceedings are on foot, it is only appropriate that the context of the question be ascertained before the answer is given.
Senator COONEY —I can understand that.
—That is important not only for the Commonwealth's rights—and `the Commonwealth' means `Australian citizens', basically—but also for the other parties involved. It is just inappropriate to suggest that questions be given answers off the cuff. The appropriate way to handle this—there is no high moral ground here at all—is to say that the first thing the government wants to do is to be accountable to parliament. The
second thing it wants to do, and it has to do it in tandem, is to be cognisant of the fact that judicial proceedings are on foot and that the Commonwealth and other parties have rights and interests.
Senator Cooney, as you know, hearings have already been held. Hearings are going on almost every day in relation to this matter. What I am saying to you is a very simple proposition—that is, we would like to be accountable, but we do not want to reveal any information that improperly prejudices the proceedings. Therefore, we want to consider the questions and the answers thereto in context. That is not easy to do when we are not the only party to the litigation. It is certainly not something you can do off the cuff either, may I say, with the rights and interests of the Commonwealth and, in particular, other people. It is just not appropriate.
Senator COONEY —There are two things I want to say. First of all, the difficulty that you present to this committee and to the parliament when you say you want to consider each question is that this exercise then becomes very much like question time where you ask a question, perhaps a follow-up question, and that is it. One of the great uses of an estimates committee is to be able to follow up questions. But, on the procedures and process that you have put to us—and I know you have considered this seriously—we are not able to follow up. So the effect of the estimates committee is ruined, in effect—and I use that word advisedly.
The second point I want to make is that the sub judice rule is, if you like, a concession on indulgence by the parliament. It is a matter that it can take into account itself.
Senator Vanstone —I think `indulgence' is a slightly strong word. I do not regard one as being indulgent if one declines to tread on other people's rights in another forum.
Senator COONEY —No, I am just talking about what the sub judice rule means. It is a rule that operates at the instance of the Senate, and the Senate is saying that we have a right to this but, in the circumstances of the judicial proceedings, we withhold our power to exert it. The classic operation of the sub judice rule is in terms of a criminal trial. There is no criminal trial here. Secondly, it is to keep, if you like, emotion and blood-letting out of the equation.
In this case, we have had people on both sides and from the government—we have had people from Patrick, people from the union and ministers—going on television and radio and speaking in terms which are quite inflammatory. How can you say that these proceedings are going to be in any way prejudiced when people have made statements on the air, which we do not know are true or not, which have been highly inflammatory? When we want to ask mild and moderate questions, we are denied them.
Senator Vanstone —Senator Cooney, I am always charmed by your self-selection of adjectives to your own questions. There may be questions that you choose to ask that would fit into that category, but all I have said to you is that it is prudent of any government to look at the questions as a whole and make that decision in the cold light of day, not to make that decision off the cuff. That is what I have indicated to you. It is not a reluctance to be forthcoming; it is a determination not to tread on the rights of either the Commonwealth or other people by answering questions off the cuff that may, on the face of it, appear innocuous and may, after consideration, be innocuous, but they may not.
Senator COONEY —In any event, you cannot take the sub judice.
CHAIR —I think we have discussed this aspect sufficiently at this stage.
Senator COONEY —No, I do not think we have.
CHAIR —Can I just quickly intervene and say that there is still the possibility, as I understand it, of jury trials under the Federal Court system, even in civil matters. I do not know whether any parties would be able to have access to a jury trial in any of the matters that are currently before the court. But, if that is a possibility, that ought be something that ought to be weighing on our minds.
Secondly, there is nothing stopping you from asking a whole series of questions on notice, like you undoubtedly used to do, Senator Cooney, in the form of interrogatories. If the answer is yes, you then ask a few more. If the answer is no, you can follow up there. There is no suggestion here that you should not be allowed to ask the question. It is just a situation of not being able to provide an immediate answer.
Senator COONEY —Thanks, Mr Chairman, but we might as well give the estimates committees away if the questions are going to be put on notice and answered within the time that they are able or is most convenient to them. We will take the sub judice rule. Perhaps the objection you should be taking is that they are cabinet documents. You could claim cabinet immunity, public interest immunity or something like that. Are they the sorts of documents? I would argue that, but you keep saying sub judice. Do you want to change your objection?
Senator Vanstone —No, I do not believe I have kept saying that. You keep raising that issue.
Senator COONEY —It is the only one that has been raised.
—In general, but I do not keep saying that. I say that, generally speaking, it is important not to prejudice the rights of either the Commonwealth or other people when judicial proceedings are on foot.
Through you, Mr Chairman, to Senator Cooney, there are two things I would like to say. Go back to the example, reluctantly, that was within this department where there was an altercation, satisfactoriness or otherwise, over the purchase of some computer equipment or software. I am not sure which it was. Senator Bolkus might be familiar because he sat in this position and studiously argued the case—this was the KPMG matter—that the Commonwealth's interest was not to be aired at estimates committees and whether anyone had any responsibility for considering how the position of the Commonwealth might be prejudiced if these matters were aired. That is the one particular example that I can think of.
We all understand. I know Senator Cooney understands. Senator Cooney is surely not advocating a situation where the community at large is asked to accept that, if there are judicial proceedings on foot that involve the Commonwealth, or perhaps that do not involve the Commonwealth and only involve other parties, or involve the Commonwealth and other parties, parliamentarians can come in and, willy[hyphen]nilly, decide to put questions, especially where the Commonwealth is involved, to the Commonwealth which result in the Commonwealth revealing that which in the judicial proceedings otherwise might not be revealed.
That means that, whenever the Commonwealth is in judicial proceedings, both hands are tied completely behind its back. No Australian would expect their own government to be in the courts with its hands tied behind its back at a disadvantage to other parties. One of the reasons we are seeing this line of questioning and seeing a refusal to accept that judicial proceedings are on foot and that questions may have an impact on them is that, with the greatest of respect, it is not always possible for people in opposition to see the government as the government. I feel sure that Senator Cooney tries very hard to see the Liberal and National parties as the government but, basically, he sees us as the enemy.
Senator COONEY —Now that is libel, under privilege.
Senator Vanstone —He is, therefore, using the parliamentary forum to seek to elicit information from the enemy and possibly to make it available to people who are, if you like, political enemies. But we are not in that sort of forum. We are talking about being in a court where it is not a question of the Liberal and National parties or the Labor Party and its mates, as it may be with the MUA or whatever. It is a question of judicial proceedings being on foot and properly refusing to answer questions off the cuff, on the run, and insisting that we be given the opportunity—and we will take the opportunity—to consider those questions in the context of those proceedings. It is just as simple as that.
Senator COONEY —In fact, I do take the position that parliament is entitled to get the information that you said should be hidden from it in the interests, as you say—
Senator Vanstone —Senator Cooney, I am not in the practice of interrupting people when they are answering questions, but I cannot allow you to keep putting on the record that there is some information that I refuse to allow you to have.
Senator COONEY —At this stage—that is what I am saying.
Senator Vanstone —At this stage is quite different, is it not? The point that I have made is that we will take these questions on notice and give them proper consideration. You are not being denied answers.
Senator COONEY —Yes, we are.
Senator Vanstone —You are being offered the opportunity, to which you are entitled—it is not our place to offer it—to ask questions. We are simply taking the opportunity to consider those questions before answering them.
Senator COONEY —I make it clear—and I am talking about now, and I am talking about the process—that I am saying that this process does not work well, unless we can get a series of questions going and some answers to them. I am saying that parliament does have the right to do that. At this stage, they—to use a neutral phrase—are not able to get the answers they want here and now.
Senator Vanstone —Here and now, that is correct.
Senator COONEY —I am saying that that stops the proper process of parliament. Whether or not parliament asks the question and how it uses the information is a matter for parliament, and parliament applies the sub judice rule, not the executive. That is what I am saying.
I will tell you what I would be willing to do. You have asked us to accept your statement—when I say `your statement', I doubt whether you would have read any of the documents that are involved in this. So you are relying on what others have told you.
Why do we not do this, in fairness: if we trust you, as we do, why do we not trust the full members of this committee on our side—that is, Senator Bolkus, a most distinguished minister in the past—
Senator Vanstone —Do not tempt me, Senator Cooney.
CHAIR —With a good track record on Federal Court affidavits.
Senator COONEY —And Senator McKiernan, a wise and honoured man who is full of integrity—
Senator Vanstone —He is nearly as charming as you, Senator Cooney.
Senator COONEY —Why do we not get them to look at these documents and, if they say, `Yes, these should not be made public,' we could accept that.
Senator Vanstone —Senator Cooney, you know as well as I do—
Senator COONEY —That is trust going both ways.
Senator Vanstone —Going too far.
CHAIR —Could I just intervene here. We have had a considerable discussion on this, and I am not sure that the eloquence of either Senator Vanstone or Senator Cooney is going to convince the other to change their particular point of view on this matter. We could continue to have eloquent discourses as to each other's position, but I am not sure it is necessarily getting us very far. So could we try to bring it to a conclusion? I do not want to stop the discussion. I just want to wind it up.
Senator COONEY —I know I am not going to get the documents from Senator Vanstone. She will not be moved, but I do not think the government should be allowed the moral high ground. I am saying that, in not giving us the documents here and now—I am talking about here and now—or not answering questions about the documents even here and now, the executive has taken unto itself a right that it does not have.
Sub judice does not operate in that context because it is for us at this end of the room to talk about that. If there is public interest immunity argued, which we will not go into now, the right of the public to know should predominate in that circumstance. You are saying to us, `We are not going to give you the documents. You can go and eat your tea or do whatever you like because you're not going to get them.' That is the basis upon which you are refusing the documents.
Senator Vanstone —Mr Chairman, I think you are right. I think Senator Cooney understands the proposition that I am putting. He understands that legal proceedings are on foot, that hearings are being held on a daily basis. He understands that it would be imprudent for the government to give up that information.
What he seeks to do—and he is entitled to do it—is highlight that, in ordinary circumstances, parliament is entitled—if not, I would say, obligated—to ask a range of questions about government activity. But it is the nature of our system that, once legal proceedings are on foot, you are obviously entitled to give a considered answer as opposed to an answer on the run or off the cuff. That is particularly so not only when the Commonwealth's interest is involved but also when the rights of other parties are involved.
That is even more so, I would say, if you return to the analogy I was making before that some people in the Labor Party—I am sure not Senator Cooney—fail to see the government as the government and see us as a political enemy and can understand the uses to which this information would be put if it were given to senators. This is not about accountability to parliament; it is about getting the MUA any information they can have.
Senator BOLKUS —Mr Chairman, I want to come in on this, because I do not know that this is taking us anywhere.
CHAIR —That is my concern as chair.
Senator BOLKUS —I just want to explore a few avenues that may in fact progress it a bit. Minister, are you saying that the benchmark you will use in determining what answers to give and what answers not to give is whether the facts that are involved are in any way affected by the fact that there are court proceedings on? Is it your argument that just because there are matters that are before the court at the moment then anything pertaining to those matters the government should not make available through this process?
Senator Vanstone —No, that is not what I have said. That is roughly what you used to say as minister. I did take the opportunity—
Senator BOLKUS —I am going to resist every temptation, Minister.
Senator Vanstone —I am resisting temptation. You have asked me a question, Senator Bolkus. I have not chosen to intervene this morning. I have let everything go to the maximum that it could because I believe in this process of accountability. But I also believe that, where there are judicial proceedings on foot, the Commonwealth is entitled to, as I say to you, not answer questions on the run or off the cuff. So I have not said to you that answers will not be given. I have said that they will not be given on the run or off the cuff.
Senator BOLKUS —So will the criteria you use be whether in fact there are court proceedings going on in respect of these matters or whether you apply some other test as to whether the information you give would prejudice those proceedings?
Senator Vanstone —Senator, the first criterion is not to answer in the immediate—that is what I describe as on the run or off the cuff—so that the matters can be considered in context. The matters will not be considered simply by me; they will be considered by other ministers and other parties.
Senator BOLKUS —Minister, what I am concerned to find out, as I am sure Senator Cooney and other senators are as well, is what benchmark you will apply to determining what information will be given and what will not.
Senator Vanstone —At what point are you saying? Do you mean now or—
Senator BOLKUS —At any stage: at a later stage if we go that far, or now, in respect of quite a number of questions that we might have to put now.
Senator Vanstone —I am indicating to you that now I can answer that for you quite succinctly. The benchmark now is that no questions will be answered on the run or off the cuff. The benchmark later—you wanted both of those, now or later—will be a range of benchmarks that are not entirely within my province. In fact, in relation to these matters, it would be other ministers.
Senator BOLKUS —Minister, that is another concern for us. If one looks at the Senate practice, the real criterion is whether in fact the disclosure may pose a real and substantial danger of prejudice to proceedings.
Senator Vanstone —One has to be able to calculate that.
Senator BOLKUS —Are you saying that that is going to be the criterion that this will be assessed on?
Senator Vanstone —I am saying that with proceedings on foot one would need the opportunity to consider that. Therefore, today, tomorrow and the next day I will take these matters on notice and give them proper consideration.
Senator BOLKUS —Minister, are you saying that any proceedings before this parliament, before this Senate and before this committee can be tendered as evidence in any court proceeding?
Senator Vanstone —No.
Senator BOLKUS —You are not saying that. Okay.
Senator Vanstone —Didn't you watch the Perry Mason program where you can find an elephant in a matchbox?
Senator COONEY —The effect of what you are saying is that the personal position of some litigants is more important than the ability of this committee to test how public money is being spent. That is what you are saying.
Senator Vanstone —No, Senator Cooney.
Senator COONEY —Yes, you are.
Senator Vanstone —No, I am not saying that. There will be plenty of opportunity for members of the Senate to hold the government to account for how moneys are spent. But right at the present moment there are proceedings on foot all over the place involving not just other parties but the Commonwealth—the government elected by the people.
Senator COONEY —As a private litigant.
Senator Vanstone —The Commonwealth government as elected by the people.
Senator BOLKUS —You have already acknowledged that proceedings before this committee cannot be tendered in evidence.
Senator Vanstone —Senator Bolkus, you can save yourself the theatrics. I think that is reasonably clearly understood.
Senator BOLKUS —Minister, I am quite serious about this. Are you saying that by the mere publicity of any proceedings before this parliament the court process might be influenced?
Senator Vanstone —Senator, what I have said to you is this, and I will repeat it for you again: there are judicial proceedings on foot in relation to this matter. I have no intention of answering questions on the run or off the cuff. I will take them on notice and I will see that they are given appropriate consideration.
Senator BOLKUS —Sure. But, Minister, I am trying to work out what consideration you will give.
Senator Vanstone —Consideration will largely be given by other ministers, Senator.
Senator BOLKUS —You have acknowledged that these proceedings cannot be tendered by way of evidence and, by inference, that has to be true. You are concerned that any publicity given to proceedings in this place may influence court proceedings.
Senator Vanstone —I do not know that that follows, but what I have said to you, and I will try to repeat it in as simple words as I can, is this: what I have indicated is that, as a consequence of proceedings being on foot, with hearings having already been held and being held almost on a daily basis, I consider it inappropriate to answer questions in relation to this matter in an off the cuff or on the run fashion. I regard that as irresponsible. I will take them on notice and see that they are given proper consideration. That is what I have said. You can dress it up any other way you like, but that is what I have said.
—Minister, to actually influence court proceedings it has to be somehow before the court and in the mind of the court. If it is not going to be tendered by way of evidence, then the only way it is going to get there is through some sort of publicity. As Senator Cooney said earlier, this case has had heaps of
publicity already and will continue to have heaps of publicity. I presume you also know that the Federal Court does not refer matters to juries. It may have the power to do so but it has never done so.
Senator Vanstone —We can go on and on about this matter, but I have given you my answer and I do not intend to elaborate on it because you would prefer me to. Mind you, I am not elaborating because you would like me to; I am simply not elaborating because I do not think it is appropriate. I have given the answer; it stands alone; it requires no further elucidation. You can ask me about my view any other way you would like, but I have given it and I do not intend to give a further elucidation of it.
CHAIR —Given that, Senator Cooney, can I suggest that if you are of the view that the government has denied the right to take the moral high ground, fine; that is a political debating point; you can put that in a media release.
Senator COONEY —No, it is not; it is a parliamentary debate.
CHAIR —Or whatever. But, really, I have been watching the clock now for well over half an hour, and I have this funny feeling that we have been going round in circles nearly as slowly as the clock. I have to say that I am not sure we are progressing the matter much further. If there are fresh questions or matters in relation to this, fine.
Senator BOLKUS —We have a few more to ask yet.
CHAIR —If they are fresh matters, fine.
Senator BOLKUS —No.
CHAIR —I am not going to countenance repeat questions which get repeat answers from the minister. So if they are fresh areas, fine.
Senator BOLKUS —This is not a repeat question.
Senator BOLKUS —You may get repeat answers from the minister, but that is something outside of our control. I think we have an obligation and a right to pursue these questions. Minister, you would have seen the advice of Mr Harry Evans. In a long advice dated 1 June, he said:
Moreover, given the enormous amount of publicity already attending the waterfront issue and the public airing of allegations and counter[hyphen]allegations, it is highly unlikely that any further public revelations could divert the Court from trying the case on the evidence admitted.
Finally, it could well be the assessment of the Senate that any residual danger of prejudice to the proceedings is outweighed by the great public interest in free parliamentary consideration on the issue.
I think they are issues to be considered by the government. But what concerns me is that there is a discovery process going on, and it is a pretty comprehensive one. The government will have to reveal documents in that process. The only way in which I would anticipate the government being embarrassed by anything that is produced through this process as opposed to the discovery process is if it tries to conceal something from the discovery process. That is the concern that Mr Evans, the Clerk of the Senate, has; that is exactly the concern that I have as well.
CHAIR —What are his legal qualifications?
Senator BOLKUS —The chairman asks, in his normal unconstructive contribution, what his legal qualifications are. Minister, isn't that a legitimate concern for people to have? You have to go through a discovery process in the courts; why can't you discover for the parliament at least what you can discover for the courts? Are you trying to hide something from the courts? In the absence of trying to hide something from the courts, what have you got to hide here?
Senator Vanstone —Look, Senator Bolkus: you can keep building your straw houses so that you can rush outside to the media and burn them down. But I have indicated to you what I think is a very responsible position, namely, that there are proceedings on foot and that it would be inappropriate to answer questions off the cuff and on the run. You try to assert that you would ask only for discoverable matters. I do not know what you would ask. So I do not take those remarks as being helpful at all.
You assume I have seen some advice from the Clerk, for whom, incidentally, I have great respect. I have not seen the advice and, without asking anybody from the department, I would be reasonably confident that Mr Evans has not had a briefing on the extent of legal proceedings and may not be in a position to conclude whether something would be prejudicial or otherwise. It is a brave man, I must say, who comes to that conclusion without having such a briefing, but he is entitled to come to that conclusion. It is not one that I come to.
—Minister, you may have seen the Attorney[hyphen]General's statement of 13 May, and that is one that concerns Senators Cooney and McKiernan and myself. He says that one of the reasons why he is refusing production of documents is that disclosure of the documents is likely to contaminate the discovery process and prejudice all parties' legal rights. Can you explain to this committee, since we are going to be
in a position of having to make an assessment of what you produce for us, what is meant by `contaminate the discovery process'?
Senator Vanstone —Are you referring to Senator Alston's remarks?
Senator BOLKUS —They are Senator Alston's remarks, yes. Isn't it a fact that the Federal Court has total control of the discovery process? How can we contaminate it here?
Senator Vanstone —I will take that question on notice and ask Senator Alston if he would like to give an elucidation on that for you.
Senator COONEY —Can I ask a question on notice. I do not think anybody at the table is able to help here, but I may be able to help you. I ask whether the litigation presently before the Federal Court concerning matters to do with the docks is private legislation in the sense that it is legislation between citizens as private citizens? I know that you may not be able to get that advice but when you go away, perhaps you can. If anybody at the table wants some help, I can perhaps give them some references on that. Secondly, is it the function of this committee to test whether public money has been appropriately spent? You might want to take that on notice. If Mr Boucher and Mr Blunn want some help in trying to tease out those issues, I might be able to help them.
Senator Vanstone —That is very kind of you, Senator Cooney.
CHAIR —For a modest fee, Senator, or no fee?
Senator COONEY —There is a concept of private litigation and what that is perhaps.
Senator COONAN —In respect of the discovery process, I want to ask whether my recollection is correct as to the way that discovery proceeds: first of all, you have to locate all documents that might answer the description in the discovery. Then there is an opportunity for both parties to claim privilege in respect of certain documents, or otherwise to indicate whether they can be located or whether there is some other sustainable objection as to whether or not they should be produced. It is only after that process is gone through, which may involve innumerable interlocutory applications, that you really are in a position to know what documents are actually handed over for the purpose of discovery.
Senator Vanstone —I was going to give you a more colloquial version, but it is as broadly correct as the one Mr Boucher offers, and that is probably the more polite version of the answer.
Senator COONAN —So you really would not be in a position to know what documents would be discoverable or not until you had gone through that process.
Senator Vanstone —Generally speaking, that would be right.
Senator COONEY —So you are taking any objection now without having gone through the documents.
Senator COONAN —It would be necessary to locate them.
Senator Vanstone —Senator Cooney, Senator Coonan has just asked me some general questions. I have indicated to you that I am happy to take questions in relation to the waterfront, but I am going to take them on notice because I am not going answer them on the run or off the cuff.
Senator COONEY —Would you concede this, as you probably do not need advice: what Senator Coonan has given is the legal position and, as she normally does, it is quite a—
Senator Vanstone —Eloquent.
Senator COONEY —Brilliant, I was going to say, rather than eloquent, but eloquent as well—eloquent and brilliant. But it is not a legal issue, it is a political issue. You cannot, particularly on the division of powers, hang around the neck of the legislature rules that apply in the area where the judiciary holds sway. What is happening here is that you are raising the powers of the judiciary well and truly above that of parliament, and I just think that is not right. You seem to be getting advice along that line too, from lawyers.
Senator Vanstone —No, no, no, Senator Cooney. Look, I have made my position clear, and I am sure Senator Coonan—in fact, she has almost put this point by asking the questions that she has—and I am sure you understand that the relevance and meaning in the context of some litigation and the status of any documents has to be considered carefully, and it is not going to be done off the cuff or on the run.
Senator BOLKUS —Minister, can I come in on this point as well, because I do not think the disclosure to the parliament is necessarily parallel to discovery. I think that is a point that needs to be recorded, but—
Senator Vanstone —Sorry, I thought it was you who first raised the discovery issue.
Senator BOLKUS —Yes, I did raise it as part of the overall component; in fact, it is taken into account here and that is why I was concerned to restate it. But we are still trying to work out what your benchmark is. Sub judice is one thing, but are you claiming now that there is a wider public interest immunity test that is going to be applied by the government?
CHAIR —How do these questions about whether the minister is going to apply a particular benchmark relate to the estimates?
Senator BOLKUS —We are trying to work out what the benchmark is, and that is going to help us.
Senator Vanstone —Senator, I have answered that question for you. I have indicated, firstly, that in the first instance, as a consequence of proceedings being on foot that involve the Commonwealth and a range of other parties—proceedings that are already in the courts almost on a daily basis—I am not going to take it upon myself to answer questions off the cuff or on the run on behalf of the government without those questions being given the proper consideration. That is the first benchmark; that is the benchmark for now. That, I think, has been made clear. I secondly indicated to you that, in relation to giving those questions consideration, I would not be the minister that gave them consideration, so I cannot assist you in relation to—
Senator BOLKUS —So, Minister, you cannot tell us whether the benchmark you will apply will be the sub judice test or public interest immunity or both?
Senator Vanstone —Without understanding what information you are asking for—without being completely across the proceedings—it is impossible for me to indicate what response the Commonwealth might give. You might find you ask 100 questions, 80 of which are answered very promptly. I have tried to assist here, Senator. I am genuinely interested in being accountable to you. What I have indicated is that the speedier process is to give me the questions.
Senator BOLKUS —I refer you, Minister, to the Federal Court in the case of Canwest Global Communications and others and the Treasurer of the Commonwealth, a recent case where the Federal Court took a very broad decision in dismissing a public interest immunity claim, scoffing at excessive government secrecy. Will you give us an assurance that you will at least be applying the benchmark of that court in terms of some of the considerations?
Senator Vanstone —I will draw that case to the relevant minister's attention. In fact, you have already done so by placing it on record, and I am sure that I will be properly advised.
Senator BOLKUS —It is one of the factors to be taken into account in the context of an obligation, I think, to parliament and to the public to be open about this case. What I would hate to see is a situation where you have legal obligations in the court system, but what you provide to parliament is less than what you provide to the courts. What I would like to see is, given the fact that you have a judge, you have had heaps of publicity, and there is almost zilch chance of prejudicing any trial with respect to this—
Senator Vanstone —That is your assertion of course. That is a mere assertion on your part.
Senator BOLKUS —Basically, you are saying that Justice North will be affected by something he reads in the Melbourne Age .
Senator Vanstone —No, I have not said that at all. I am sorry, you are just not coming to grips with reality here.
Senator BOLKUS —If it is not going to be tendered before him or any other judge—
Senator Vanstone —I have not said that at all. I have not said that—try to come to grips with it.
Senator BOLKUS —How else will the proceedings be affected? If it is not going to be tendered by way of evidence, how else will it be affected?
Senator Vanstone —What I have indicated to you is a very simple proposition. Someone such as yourself should find it a breeze to come to grips with; that is, that as a consequence of proceedings being on foot that involve the Commonwealth and other parties, I am not prepared to answer questions on this matter off the cuff or on the run; that the Commonwealth's and the other parties' interests need to be considered; and that the questions will be answered at the appropriate time. I am not the relevant minister to give that consideration, and I have indicated to you that the sooner you give me the questions on notice, the sooner you are likely to get those answers that are considered appropriate.
Senator BOLKUS —All right Minister, I will put another one on notice. How can one contaminate a discovery process unless you are intending to keep documents away from the court which would otherwise be disclosed to the parliament?
Senator Vanstone —You are already seeking to raise the claim. It is a ludicrous claim that you are running, and I am not going to entertain it.
Senator BOLKUS —I do not think it is, Minister.
Senator Vanstone —You have already asked that question as a consequence of some remarks Senator Alston made. I told you that I would speak to Senator Alston, and if he had anything he wanted to add, I am sure he would.
Senator BOLKUS —I think it is really an excessive answer for you, not knowing what Senator Alston meant, to make some judgment about my question. I think the best thing you should do is take the question away and consider it with all the other questions.
The CHAIRMAN —That is what she wants to do with all of them.
Senator Vanstone —That is what I want to do with all of them. Give them to me and I will take them away and have them considered.
Senator COONEY —Can I ask a question on notice—and you will probably have to think about this for a while. Given the fact that there is this private litigation before the courts, and you have got to be fair to all parties—that is the government's position—has the government done anything to restrain its ministers from attacking one party in this equation, namely the Maritime Union of Australia, not only in parliament but in the media? Has the government taken into account that this might prejudice a judge in coming to a conclusion?
Senator Vanstone —I will certainly take that on notice, Senator Cooney. Thank you for so courteously placing it there.
Senator COONEY —It will probably take you a while to work that out.
Senator Vanstone —I am sure the relevant minister will take as long as is required and no longer.
Senator COONEY —That is exactly the problem. That illustrates just how this estimates process is going to be ruined.
Senator Vanstone —Estimates are always made more difficult when litigation is on foot. It is always more difficult. This is my 14th year in parliament, I think, and I have been through plenty of estimates committees, most of them in your position in opposition, and I am well aware of the fact that when litigation is on foot things are made much more difficult.
Senator BOLKUS —Minister, it is interesting that you have not contended that litigation is made more difficult when estimates are on foot—and that is precisely our point from here.
Senator Vanstone —I do not know that that is the point you are making, Senator. If it is, you have not made it articulately enough for me to come to grips with it.
Senator COONEY —We are just concerned about the expenditure of public money. You would understand that.
Senator Vanstone —That is the line that I think you have been pursuing and it is one with which I have sympathy, but it is always made more difficult when there are proceedings in the courts. It is always made more difficult.
Senator COONEY —It is not always at all.
Senator Vanstone —I think it is.
Senator McKIERNAN —I have a couple of short questions relating to this matter—
CHAIR —The estimates?
Senator McKIERNAN —Relating to the question that was asked and then taken on notice. Was the decision to take questions on notice on this matter taken in cabinet? Was it an executive decision?
Senator Vanstone —I am not in cabinet so I cannot tell you what has been discussed there. I can tell you that I have made my own decision in the context of simply saying with respect to each question that I will not answer it off the cuff or on the run.
Senator McKIERNAN —I think I recall you saying in your opening statement this morning that you and other ministers in other estimates committees would be following this same course of action of taking questions on notice.
Senator Vanstone —If not exactly the same, then very similar.
Senator McKIERNAN —That indicates to me that there was a broader decision rather than your personal decision as minister representing the Attorney[hyphen]General here at this particular estimates committee. Am I correct in that assumption?
Senator Vanstone —Would you like to repeat that question?
Senator McKIERNAN —That comment that we both agree on, without necessarily agreeing on the exact words, indicates to me that there was a broader or wider decision taken elsewhere over and above your personal decision as minister representing the Attorney[hyphen]General here at this estimates committee, if other ministers were following that same course of action in other committees.
Senator Vanstone —You would expect the government to have had some discussions amongst ministers about these matters. You would expect there to be a reasonably unified approach on these matters. I know that Senator Faulkner and Mr Beddall created the impression under the previous government that you never spoke to each other, but I am sure that they were an exception. I am sure that generally speaking the government ministers did speak to each other, and that is the case here as well.
—I cannot see anything wrong with ministers speaking to each other. All we are complaining about is the conclusion they have reached—this group of highly intelligent, highly skilled and
dedicated people has come up with the conclusion that the best way to resist the temptation to give evidence is to say, `I am going to think about this. Give me a chance to consider the question.' It is a very useful tactic.
Senator Vanstone —You could go back through the annals of history and see the number of times that ministers have taken questions on notice. I see this as not being particularly extraordinary. If I were not otherwise occupied—that is, fully occupied in my job—I would go through the Senate estimates Hansards , back as far as the computer arrangements would take us, and I would give you a list of the times when previous ministers have said that they would take something on notice. Now, all of a sudden, we have had for some period of time—and I am not sure for how long—an interesting but not very fruitful discussion for anybody on why I have chosen to take that position on this occasion.
Senator Cooney, may I say that I think that so far there has only been one question on this matter, so the brouhaha that, with respect, is being played out here is a brouhaha because the minister has basically said, `Look, if you have got questions on this matter, I am going to take them on notice'—an answer that I have heard from Labor ministers for 13 years and which was given without the bat of an eyelid because we all understand that there are occasions when ministers will either not have the information at hand or will need to give proper consideration to that.
In the past, Senate estimates committees that I have been a part of—although I can think of some that might not have—have always extended their understanding of the need for the government of the day to take something on notice either to get the information to hand or to give it proper consideration. Let us not get this out of context. I am sure Senator Bolkus will be out there saying, `Oh this is a cover[hyphen]up taking the waterfront questions on notice,' yet he will fail to mention that at estimates committees where he sat as the minister he consistently took things on notice and no[hyphen]one batted an eyelid—
Senator COONEY —But he was not trying to frustrate a process.
Senator Vanstone —so let us not make out that this is anything particularly different, Senator Cooney. Let's not try to put this up as being something other than what ministers have normally done and what I have experienced for 13 years in opposition.
Senator COONEY —I interrupted Senator McKiernan and I should not have.
Senator Vanstone —Sorry, I was responding to Senator Cooney.
Senator McKIERNAN —Thank you, Senator. My question was about the broader decision making about this matter of taking questions on notice, and you have confirmed to me that a broader decision was taken.
Senator Vanstone —I have simply said that these matters would of course be discussed.
Senator McKIERNAN —Yes, indeed, which confirms to me that there has been a decision taken. My question now—and I will probably ask you to take it on notice—is: was Minister Reith involved in that decision making?
Senator Vanstone —I have not indicated to you that any decision has been made. This is a constant problem with estimates—and I am sure you do not do it intentionally, Senator McKiernan—that you draw a conclusion from what I have said. I simply said that of course a government would discuss these things and discuss them amongst ministers. That is all I have said. I think you can see from Senator Alston's statement that a broad general position was identified. I was not a party to whatever discussions were held that allowed or led Senator Alston to make those remarks so I cannot be of any further assistance to you in that respect.
Senator McKIERNAN —I want to develop that a little bit further. If, indeed, Minister Reith was involved in a decision to take questions on this matter of the waterfront dispute on notice at estimates committees this week, next week and whenever, when will the responses to the questions be made public, if ever?
CHAIR —Which questions, Senator?
Senator McKIERNAN —The questions which have been taken on notice.
Senator Vanstone —With respect, Senator, this is a farcical situation that I am sure the committee is not intending. We have had one question from Senator Cooney and I have indicated that I am not going to answer questions on the run or off the cuff, that is, I am going to take them on notice so that they can be given proper consideration. And now you are asking me, `When will you get the answers?' How can I possibly say that without having seen the questions. I go back to what I said some time ago: give us the questions, put them on notice.
Senator McKIERNAN —But because the decision to take questions on notice may have involved a party to the litigation, is it not important to put questions on the record about that matter as well?
Senator Vanstone —You can put such questions as you choose on the record, Senator McKiernan.
Senator McKIERNAN —That was the question I was putting on the record before when I asked you to take it on notice.
Senator Vanstone —I understood that but I thought you then said, `When will we get the answers?' and it was to that I was responding.
Senator McKIERNAN —Thank you. If Minister Reith was involved in a decision to take questions relating to the waterfront dispute on notice, is that not a conflict of interest by Minister Reith?
CHAIR —That is seeking an opinion which I am not sure relates to the estimates process.
Senator Vanstone —I certainly will not give an answer on the run or off the cuff.
Senator McKIERNAN —But you will take it on notice.
Senator Vanstone —Yes.
Senator COONEY —By the way, I had two questions on notice—one was not on notice, but you put it on notice. One was whether or not the Australian Government Solicitor was acting for anyone, in any capacity—I have added that now—in respect of the dispute over the waterfront. The second one was whether or not the action that is before the courts is a private action between private citizens in their capacity as private citizens. The other part of the question is whether or not the purpose of the estimates committees is to test the government in the expenditure of public money.
Senator Vanstone —The latter question, Senator, I have agreed with you: of course it is. All we are discussing now is the process by which that happens.
Senator COONEY —The first part of that question is to be answered. Another question I might ask is: has the Australian Government Solicitor taken part in any discovery proceedings for any of the parties to the waterfront dispute?
CHAIR —Any other questions?
Senator COONEY —Yes. Has the Australian Government Solicitor spoken to anyone about the waterfront in his capacity as Australian Government Solicitor? If so, who and when? I have not even asked what about.
CHAIR —Are you asking that now?
Senator COONEY —Yes.
CHAIR —Right. That is another question on notice.
Senator Vanstone —I am sorry; I thought you were putting them all on notice.
Senator COONEY —I am asking them now. This is a series of questions I want to ask now. What I expect will happen is that Mr Boucher will decline to answer this. You will say, `I want to go away and think about it,' and then—
Senator Vanstone —Technically, you are putting the question to me and I am saying that I will take it on notice.
Senator COONEY —That is what you are saying and I am trying to illustrate what is happening. I am saying that people listening to this are entitled to draw conclusions that there is a reluctance to give over information.
Senator Vanstone —No, Senator, I would say that they are entitled to draw a conclusion that they have a minister in the chair who has made the appropriate decision, with proceedings on foot, that it is not appropriate to answer questions off the cuff or on the run and a minister who says that she is very happy to take such questions as you have on notice. I notice, Senator Cooney, yours come out of probably a combination of your heart and your head. I can see that Senator Bolkus has a great big list of them which someone has written out for him. He can just give us that list if he likes, or he can go through the process of them being asked as though they are coming from his own head—it doesn't matter.
Senator BOLKUS —I am like Senator Cooney: I anticipate that a lot of these questions can be answered tonight, so I am going to proceed with the. I ask AGS when advice was first sought from them in respect of the waterfront issue?
Senator Vanstone —We will take that on notice.
CHAIR —If it were sought.
Senator BOLKUS —No[hyphen]one here can remember?
Senator Vanstone —Questions at estimates go to the minister. The civil servants are here to assist. I have indicated that on this matter you can put your questions to me. We can go through this farce if you choose.
Senator BOLKUS —It is not a farce; it is actually an important part of the process, Minister. I would have thought that officers coming here today would have had some basic information like when they were first engaged in this.
Senator Vanstone —Yes, well you would have thought lots of things, like you would not get caught out peddling Federal Court documents around.
Senator BOLKUS —Off you go again, go on—minister for insults!
Senator Vanstone —It is not insulting; it is just a plain fact.
Senator BOLKUS —I ask the AGS why they do not know, at these hearings this evening, when their advice was first sought in relation to this matter?
Senator Vanstone —Senator, I have taken that question on notice. There is nothing further to add.
Senator BOLKUS —I am asking officers as to why—
Senator Vanstone —No, you are not, you are asking me. The questions go through the minister and I am taking responsibility for giving you these answers.
Senator BOLKUS —Why do you not know this bit of basic information?
Senator Vanstone —Senator, we have already been through this. I have indicated to you the decision I have made with respect to answers to these questions. I am not going to vary from that.
Senator BOLKUS —When advice was first sought from AGS, what was the nature of the advice sought? At what stage of the proceedings was it sought? For what purpose? Who engaged the AGS? Can you then give us a full account of the involvement that the AGS has had in this matter since it first began? What I would like is a chronology of events of both requests and advices and how much each advice cost. Who requested the advice in each case and who provided the advice?
CHAIR —Senator Bolkus, do you have all those questions written out?
Senator Vanstone —He would like to read them, Chair—let him.
CHAIR —Do you want to table them?
Senator BOLKUS —I have some here; I have a whole lot more here. I will be going from side to side.
CHAIR —If you want to read them out, fine.
Senator BOLKUS —I will go through them all because, as I said, I was actually expecting some answers to these tonight. The questions I am asking now quite honestly do not go to any legal process at all. I ask whether any meeting took place involving the Attorney, his staff or staff of the department in relation to the matter? If so, when did those meetings take place, who was present and what was the general purpose of the meeting? This should not be too hard: what counsel have been briefed by the Commonwealth in this matter? When were they briefed? How much has been paid to them? How much have they submitted for bills? Has the Commonwealth briefed any non[hyphen]AGS solicitors in relation to these matters, both in Australia and in the UK, or anywhere else? What was the purpose of them being briefed?
Senator Vanstone —Senator Bolkus, I am not wishing to discourage you from assisting the committee by going through these quickly, but can you indicate whether you do have them written out. We could save Mr Boucher getting writer's cramp trying to keep up with your speed.
Senator BOLKUS —Minister, I have some written out, but at this stage I am still going through some of the questions that are not written out—
Senator Vanstone —Perhaps you could indicate when you get to the ones you do not have written out—
Senator BOLKUS —I shall do that, Minister.
Senator Vanstone —Then Mr Boucher can be a bit more assiduous at that time in taking down what you say.
Senator COONEY —You don't mind discovering your documents?
Senator BOLKUS —Not at all, Senator Cooney. How much money has been paid to the solicitors, and how much are the bills submitted for payment; who authorised the briefing out, and who provided the instructions for these firms?
This is a question that you would have answered here before: what guidelines cover the briefing out of legal services, particularly litigation and related legal services; and have those guidelines been complied with?
I would like to move to the High Court case before Justice Gaudron. When were counsel briefed to appear in this matter; by whom were they briefed; what instructions were counsel given in regard to cross[hyphen]vesting and the cross[hyphen]vesting aspect of the case; weren't the advice and instructions given to counsel inconsistent with a view previously taken by the Commonwealth on cross[hyphen]vesting? Can anyone answer that here this evening?
Senator Vanstone —That will all be taken on notice, Senator. We have been through this.
Senator BOLKUS —No intention to cooperate. If not, why not?
Senator Vanstone —We have an absolute intention to be accountable but in the proper way.
Senator BOLKUS —How much money was spent by the Commonwealth in this matter? Given that the Attorney disapproves of other organisations bringing frivolous applications to the court and particularly given the stated views of Justice Gaudron as to the application's merits, why did the Commonwealth join in bringing this application?
There are a few questions with respect to indemnities. Have any Commonwealth ministers or other officials sought indemnities in relation to their involvement in these matters; if so, who; when were such indemnities
sought; what inquiries are being conducted in relation to the indemnities; by whom; where, and at what cost; if these indemnities have been requested in writing, can copies of all requests be given to the committee; has the Commonwealth granted any indemnities; if so, to whom and for what reason; on what basis has the Commonwealth granted—or will the Commonwealth grant—indemnities; will the Commonwealth comply with the guidelines for assistance to Commonwealth ministers; if so, will you table those guidelines; has the Commonwealth actually sought advice on the liability of any person with respect to these matters; is it in fact true that the Commonwealth has obtained advice from a leading Q.C. advising that the conspiracy cases against either or both the Prime Minister and Minister Reith are very strong cases; if so, will you provide that advice; if not, which Q.C. provided it; when was the advice provided; at whose request and when was it requested; and how much is counsel being paid for that advice; has an indemnity or any potential assistance in relation to an indemnity been requested by former Minister Sharp; is it true that under the guidelines the Commonwealth cannot provide indemnity to a minister who has acted in bad faith; has advice been taken with respect to any minister who may be seeking an indemnity as to whether they knowingly acted in bad faith in that they may have breached an enactment under their administration?
With respect to the Attorney: has the Attorney personally visited lawyers in Melbourne to make inquiries about the indemnity or any other matter connected with the waterfront; if so, when did the Attorney attend; whom did he visit; when and where; and what was the particular purpose of his mission?
With respect to contingent liability: has any assessment been made of the contingent liability of the Commonwealth in relation to this case; when was that assessment made; by whom; on whose instructions; who has been advised of this advice; why didn't it appear in budget papers?
In terms of public advices: has the AGS prepared any legal practice briefing on the outcome of any of the court rulings; if so, can we have a copy of those; what advice has been provided on the impact of each of those court rulings; who were the advices provided to and when?
In respect of delay in proceedings: has any minister, staffer or department official advised the AGS to seek to delay the conspiracy trial currently taking place before the Federal Court; if so, who, when, where, and what were the specific instructions; can we get a copy of all the submissions and affidavits filed by the Commonwealth in any of the legal proceedings.
In respect of the Full Court of the High Court: who determined that Mr Pagone would not make any submissions other than to support submissions of Mr Gyles, as indicated on page 11 of those transcripts; how much was Mr Pagone paid for his attendance—I must say that in the three or four days of hearings he spoke some 46 words; why has the Commonwealth never taken the view that there may have been a conspiracy to breach the Workplace Relations Act by Patrick et al. but that Minister Reith and the Commonwealth had no knowledge of it and thus were not co[hyphen]conspirators; why was Dr Griffith instructed to appear on behalf of the Commonwealth via Dunhill Madden & Butler; as Messrs Harris and Pagone also appeared on behalf of the Commonwealth, why were two sets of counsel briefed; who approved the submissions made by the Commonwealth before the court; and who settled the Commonwealth submissions in each case?
Was advice provided by the Australian Government Solicitor in June 1996 on the issue of how to force the disclosure of the MUA balance sheets and how to discover the whereabouts of union funds; were AGS in any way involved in September or on any other date in 1996 with respect to the ACIL brief; were AGS involved in providing advice to their ministers or others or to cabinet with respect to the ACIL briefs?
With respect to 1977, was AGS advice ever sought in that year, before, or since, regarding the option of the sacking of Patrick's work force; were they involved in any meetings, and who from AGS was at the meetings, and who else was at the meetings; was AGS advice sought on how the new Workplace Relations Act would be used to weaken the MUA?
A meeting was held in March 1997 between Reith, Sharp, P&O and Patricks. Did the A[hyphen]G's Department or AGS provide any input in respect of that meeting; advice as to any aspect of workplace relations or the waterfront? In that briefing, for instance, there was a warning that dismissed employees might argue that they were sacked because they were members of a union. Was A[hyphen]G's advice sought with respect to that particular issue?
Under what name did AGS have contact with the workplace relations agenda? In other words, it would not have been called the Dubai exercise, but was there an official title given to it by any arm of government or department of government?
Was A[hyphen]G's advice sought in terms of legislation to deregister the MUA? If so, when and by whom, and who was involved?
In March 1997 a minute was prepared, I think from workplace relations, looking at suspending registration, cancelling the award, terminating the agreements involving the MUA or the work force on the waterfront. Was A[hyphen]G's advice sought with respect to that?
The ACIL contract was let without a tender process. Was A[hyphen]G's advice sought with respect to the ACIL contract or else the tender process?
When did the ACCC first ask AGS for legal advice on any matters relating to the waterfront if, in fact, it did so seek such advice?
The ACIL and Tucumcari contracts state that matters are to be dealt with on a strict `need to know' basis. Was A[hyphen]G's involved in formulating those contracts? I asked earlier, I think, how much did all the contracts that the government entered into cost?
Was any advice provided to Mr Webster whilst he was a consultant or on staff of the Commonwealth?
I think I have probably covered most of this, but there were in fact contracts with BGC media and a whole range of contracts relating to the workplace reform agenda. What was the cost of those contracts? Was AGS involved in the formulation of or in giving advice on any of those contracts?
Also was AGS advice sought in respect of any problems that the Defence Department may have had with people who went off to work to be trained for waterfront activity?
Was A[hyphen]G's involved in the contracting out of any of the work to companies such as Minter Ellison on the legal side or research companies such as Australasian Research Strategies—Mark Textor's company? Did contracts go through AGS in respect of those?
CHAIR —Any more?
Senator BOLKUS —I am on page 14 of 119 pages—so there are some more.
Senator Vanstone —Perhaps I could be of assistance. Senator Bolkus, we are happy just to take your 100 pages. If you would like to indulge yourself in having everybody sit and watch you read through them, that is fine, but it would save the time of everybody else—
Senator BOLKUS —Minister, I am actually skipping through a lot and being very selective in terms of the questions I am putting to you.
On 18 September there was a meeting between John Sharp and Peter Reith in Melbourne. Were legal advisers involved there?
Senator COONAN —On a point of order. Through you, Mr Chair, I just wish to ask whether or not it is proper procedure to read a long series of questions onto the record when you are not, at that stage, expecting an answer and, indeed, the minister has made it very clear that none will be forthcoming. Why is it not sufficient to place the questions on notice like everyone else does?
Senator COONEY —On the point of order, Mr Chair: I think that this a useful exercise because it illustrates that there is a blanket refusal, on behalf of the government, to consider the questions.
CHAIR —Are you addressing the technicality or the political benefits of what Senator Bolkus is doing?
Senator COONEY —Can I finish my point? It illustrates that parliament is being frustrated—and that is a very serious matter. I do not think Mr Chair, with due respect, that we ought to be put in a position where there is a blanket refusal to answer questions; and then blame is attached to us when we want to put questions which seem to me to be very reasonable ones, simply because the executive says, `We are not going to answer them.' I do not think that we should be put in position where we are not allowed to ask.
CHAIR —There is no suggestion that you not be allowed to ask.
Senator COONEY —Yes you are. You want us to put this on notice. Now can I say something. I think there is much to be deduced from the fact that there are no answers to these questions. If you are talking about legal matters—the way people react to questions entitles peoples to draw inferences. You will remember Woon's case—
CHAIR —Senator Cooney, the point of order by Senator Coonan was whether or not it was technically appropriate for Senator Bolkus to be able to do what he is doing. Whilst I accept you are making a lot of political points, my view is that the standing orders—
Senator COONEY —No, I am not. That is not right for a chairman to say, by the way—you are supposed to be neutral.
CHAIR —With respect, I think a chair can make judgments from time to time as to people's behaviour and in all your submissions you have not addressed, in any shape or form, the technical aspect of Senator Coonan's point of order as to whether Senator Bolkus can or cannot read onto the record all these questions.
Senator COONEY —Yes I have.
CHAIR —And my ruling will be that yes, he can. I do not think that it assists the committee that this is occurring. But, technically, Senator Bolkus is entitled to do what he is doing and so we will continue.
Senator COONEY —I owe you an apology then, Mr Chair. I thought you were going to uphold the point of order.
CHAIR —No I wasn't.
Senator Vanstone —Mr Chair, if I could just add: I don't disagree with what you say, but as a courteous response to Senator Cooney—
CHAIR —Could I invite you to desist, Minister. We really should be—
Senator Vanstone —I think this point does need to be made. He is trying to support Senator Bolkus reading these out at length when practicality is that he does not need to; he is simply indulging himself. Senator Cooney made the point that perhaps Senator Bolkus was trying to elucidate the point that there was a blanket refusal to answer questions, and he put a full stop there. But I say a blanket refusal to answer them now. There is no need for Senator Bolkus to make that point. I made it at the beginning and I continued to make it. It is not denied.
Senator COONEY —But I also added the extra point that inferences can be drawn from the fact that you have taken a particular—
CHAIR —That is where we get into the political, which I was suggesting before and which you are objecting to, Senator Cooney.
Senator Vanstone —Mr Chairman, I will personally undertake to get this committee a video transcript of the Senate estimates committee where I knew that someone had dumped off 40[hyphen]something discs from the Attorney[hyphen]General's IT department to me and that they had a huge problem with their e[hyphen]mail system. You can watch, Senator Cooney, the faces of the officers when I asked if they had a problem with their e[hyphen]mail. You would not have known there was a problem unless you actually knew, so you cannot always draw inferences by the way people answer questions.
Senator COONEY —Woon's case says you can.
Senator Vanstone —You might in a court but not here, and these people are professionals.
CHAIR —Much as we might want a break from all the questions Senator Bolkus is asking, can I suggest that we go back to those questions so they all get on to the record.
Senator BOLKUS —Can I just say in my defence that I am actually going through listing one quarter of what I have got written here, so just keep that in mind.
What contacts have AGS had with the Melbourne Ports Corporation, the Victorian government, Austrade and any Victorian representatives in the Emirates in respect of the waterfront issue? In respect of the possible return of people to the army—return to service—was AGS advice sought? Was AGS advice sought in respect of the Dubai workplace agreement? Was it sought in respect of the possible use of the secondary boycott provisions in the Trade Practices Act? Was A[hyphen]G's advice sought in respect of any possible breach of defence force regulations?
CHAIR —Senator Bolkus, if you want to cull through the questions, would it assist if we move on to another program at this stage and then come back?
Senator BOLKUS —The reason I am hesitating is that I am actually skipping over questions. Was AGS advice sought in respect of redundancies? I did ask about the ACCC. I asked when advice was first given. I should also add to that: on what other occasions was advice given to the ACCC? In respect of the Australian Government Solicitor, was advice sought as to what documents could or should be tabled in the Senate, and was advice ever sought as to any document that may, by being tabled in the Senate, in any way prejudice court proceedings?
Has advice been provided by Attorney[hyphen]General's in respect of the extraterritorial application of the Trade Practices Act? If so, to whom, who requested it and when was it provided? Was advice given on the possibility of sacking workers? I think I asked that one earlier on. Was advice provided in respect of the Maritime Industry Finance Company and the way that it should run its redundancy scheme imposing a levy?
Can you tell us whether advice was provided to the government on whether the company—that being Patrick—had acted legally? If so, who requested the advice and when was it provided? That was in respect of both the sacking of workers or any other corporate activity of the company. A confidential hotline was set up to advise sacked workers on their rights. Was AGS involved in either any of the planning for that hotline or any of the provision of advice? In April this year the government boasted that it gave Patrick and other parties to the proceedings a lot of legal advice. Does the AGS have any knowledge of any advice that it provided being passed on to any of the other parties in the proceedings? When was AGS first contacted in respect of indemnities and by whom? I think that is probably sufficient for this particular part of the process. If you can come back to us with answers to those questions, I would appreciate it.
CHAIR —Thank you, Senator Bolkus. Are there any other questions for the Australian Government Solicitor?
Senator McKIERNAN —Unfortunately, I need the minister here in order to ask it.
CHAIR —Are there any other questions for the Australian Government Solicitor at this stage? If not, we will move to the Solicitor[hyphen]General and then come back.
Senator BOLKUS —Could I just ask a question in respect of Employment National? Has the AGS provided any advice to Employment National on its corporate structure and the employment of its employees? If so, when was the advice requested? Who was it provided by and to whom, and how much did it cost?
Mr Boucher —I would have to take that on notice.
Senator COONEY —I wanted to ask Mr Boucher a question but I wanted the minister here because she might not want him to answer it.
Senator Vanstone —Can I assist you with that. It is not a question of you asking Mr Boucher a question and me telling him not to answer. The normal practice in the past—which has become lax, I agree—has been that you put the questions to the minister, and if the minister needs assistance in answering it, he or she will seek it.
Senator COONEY —I will ask you the question, Minister. Does the government see the Australian Government Solicitor as being subject to its directions and, narrowing that down, its directions when it is acting for its clients? I understand that the clients are only government departments or agencies.
Senator Vanstone —I will take that on notice.
Senator COONEY —The only other question I wanted to ask of you, Minister, was this. When you come back with such answers as you do, do you propose that the committee will be able to ask you another series of questions?
Senator Vanstone —Sorry, I did not hear.
Senator COONEY —When you come back with your answers, such as they are, they might be answers—
Senator Vanstone —To your satisfaction.
Senator COONEY —Or they might not be. In so far as they are not, do you foresee that the estimates committee will then be able to ask a series of other questions arising out of your answers, or do you foresee that, when you bring the answers back, that is the end of the process?
Senator Vanstone —I would have thought, when the answers come back, you could ask further questions. They may need to be dealt with in the same way, depending on where the proceedings are, but I would expect there will be an opportunity for further questions.
Senator COONEY —You would not be happy, but you would foresee that this committee would be able to carry on in the way it is now.
Senator Vanstone —Yes.
Senator BOLKUS —Whilst Senator McKiernan is working out his next batch of questions, can you tell us who is going to make the decision as to the answers coming back to us? Will other ministers be consulted?
Senator Vanstone —I have already answered that.
Senator BOLKUS —What did you say? Sorry, I must have missed it.
Senator Vanstone —I said it will not be me who makes the bulk of the decisions. It will be other ministers.
Senator BOLKUS —Can I add as a rider to the questions I have already put that we are told which ministers or departments were consulted in the preparation of each answer.
Senator Vanstone —Some of them that you have read out clearly fall in other portfolios.
Senator BOLKUS —Sure. That is why I say I want that rider put to my questions.
Senator COONEY —What we are asking for is to get the basis of your objection to the question. You need not, if you do not want to, but then I think the inference is open to us, as it presently is, that you are declining to answer on the basis of simply not wanting to surrender evidence and not on the basis of any higher motive.
Senator Vanstone —As I have heard that view—and let me just put that qualification because I was listening on my right at the same time—I do not agree. The Attorney and I will answer those questions as appropriate and they will be referred to other ministers. In the past, questions have come back saying it was referred to so and so for answer.
Senator McKIERNAN —Minister, following from my earlier series of questions about taking questions on notice, I was left with the understanding that the practice which was being followed in this committee was going to be followed in other committees. I have now been informed that that is not actually the case. In fact in the Economics Legislation Committee considering estimates, the secretary of the Department of Workplace Relations and Small Business, Dr Peter Shergold, has actually tabled a letter which goes to the ACIL contract, which was the subject of some of Senator Bolkus's questions. Are you aware of the tabling of this letter and its content?
—No, I have not been focusing on the other estimates committees but I make the point to you that I indicated a similar approach would be taken. I think I made it quite clear that I had made a personal decision to give proper consideration to the context of questions. When you asked whether that would
be the same in other places, I said that it would be similar. I can only assume from that that Dr Shergold considered he had the appropriate information at hand.
Senator McKIERNAN —At least one of your reasons for taking questions on notice in order to give the questions due consideration was the matter of a possible interference in the sub judice rule.
Senator Vanstone —I indicated that, with proceedings on foot, I wanted to give proper consideration to the context, or ensure that those ministers to whom the questions would have to be directed, if it was not me, would have the opportunity to consider them properly.
Senator McKIERNAN —Dr Shergold, in his letter, provides quite some detail about the ACIL contract. Why is it that a public servant, a secretary of a department, can be in a position to provide a parliamentary committee with information, while other public servants in other parliamentary committees are not able to provide that information?
Senator Vanstone —It might have something to do with the knowledge held by particular people at particular times. As I have indicated to you, I am the minister at the table. That is the decision I have made to ensure that, in giving an answer, as I say, on the run or off the cuff, I do not prejudice anybody's right. It is not just the Commonwealth, there are other parties involved here. It is very complex litigation. As I think Senator Bolkus indicated, I would not have looked at any let alone all of the documents in relation to this, so I certainly would not be in a position to say that you could have something that I had not seen. Dr Shergold might be in an entirely different position. In relation to this matter, some people have information at hand that others do not.
Senator McKIERNAN —I will not belittle the people at the table, but is it not so that other conscientious public servants do not share your views or the views of those other public servants?
Senator Vanstone —I have made it abundantly clear, Senator McKiernan, and I thank you for giving me yet another opportunity to do so, lest there is no misunderstanding. On a number of occasions, I have unfortunately had to interrupt Senator Cooney and clarify for him that his question would be coming to me and that I would take responsibility for the answer, not the relevant officers. There have been a number of occasions when officers have indicated that, in any event, they would have to take that question on notice, but I have taken that decision.
So the answers you are getting are a function of my decision making process and are not related to the officials at the table. I have made that decision. If a minister at another estimates committee has concluded that, in a particular instance, the relevant information is at hand and that minister is happy to pass that information on, well and good. In another estimates committee with people who might be familiar with other aspects of it, that may be the case, but I indicated to you very early on that this was my decision. It is not a reflection on the officers here in anyway whatsoever.
Senator McKIERNAN —Would you accept that your decision has perhaps disadvantaged members of this committee in following through the tasks that we have been charged with in these estimates committees?
Senator Vanstone —No, I would not phrase it that way. What I would say is what I have already said—that is, when there are judicial proceedings on foot, it always makes it more difficult for estimates committees. It is particularly difficult if you have got a range of people with varying levels of knowledge. It is important, therefore, when the Commonwealth is a party, in my view, that the answers are considered before they are given rather than, as I say, being off the cuff or on the run.
You might be able to help us, Senator McKiernan. You might know at which estimates it was today that I am told one of your colleagues was indicating to a minister that I had been soft and had given out a whole lot of information. I am sure that is not a view you would agree with, but apparently that was being touted around today.
Senator BOLKUS —Totally misinformed.
Senator McKIERNAN —I am sorry, Minister. I cannot help you. If I could, I would.
Senator Vanstone —I will find that person.
CHAIR —Can we try to get back to the estimates.
Senator Vanstone —I cannot speak for another estimates committee. There is no point you asking me, Senator McKiernan. I cannot speak for them.
Senator McKIERNAN —I accept that, and I have not moved away from the estimates consideration.
Senator McKIERNAN —I had meant when I started these questions to formally identify this letter. It is dated 2 June 1998 and is addressed to Senator Alan Ferguson, Chair of the Economics Legislation Committee, Parliament House, Canberra, and it is signed by Dr Peter Shergold, Secretary of the Department of Workplace Relations and Small Business. It is on the secretary's letterhead. I have only got one copy here, but I suppose it would be appropriate to table it for the information of all members of the committee.
Minister, I have a further question. You have taken a series of questions on notice today. Can I ask that, when you respond to those questions, you give due and necessary detailed consideration to the content of those questions?
Senator Vanstone —I have given you an assurance that the government remains committed to being accountable to parliament and that the problem we face is as a consequence of proceedings on foot. At no time have I given you an indication that the government would be half[hyphen]hearted or dilatory in its responses. It is quite the opposite, you can be assured of that.
Senator McKIERNAN —Also on that—because there are proceedings on foot and part of your argument has used the fact that the discovery of documents might be in breach of sub judice rules—could you give us some paper, argument or consideration as to how we might in future be able to use this episode that we have experienced here today when framing questions?
Senator Vanstone —I am sure we can put something together that gives a general outline of our position.
Senator McKIERNAN —Could that include the public interest argument as well?
Senator Vanstone —To be helpful, I suppose it might consider any argument that might be used in any circumstance if you are looking for a generic response.
Senator McKIERNAN —Thank you, Minister.
CHAIR —Are there any other questions on the Australian Government Solicitor? If not, we will move on.