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FINANCE AND PUBLIC ADMINISTRATION LEGISLATION COMMITTEE
Department of the Senate
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FINANCE AND PUBLIC ADMINISTRATION LEGISLATION COMMITTEE
Department of the Senate
Senator JACINTA COLLINS
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FINANCE AND PUBLIC ADMINISTRATION LEGISLATION COMMITTEE
(SENATE-Monday, 3 November 2003)
- Start of Business
- Department of the Senate
- Department of the Parliamentary Library
- Department of the Parliamentary Reporting Staff
- Joint House Department
prime minister and cabinet portfolio
- Office of the Official Secretary to the Governor-General
- Office of the Inspector-General of Intelligence and Security
- Office of National Assessments
- Office of the Status of Women
Content WindowFINANCE AND PUBLIC ADMINISTRATION LEGISLATION COMMITTEE - 03/11/2003 - parliament - Department of the Senate
CHAIR —I welcome the President of the Senate, Senator Paul Calvert, the Clerk and officers from the Department of the Senate. Senator Calvert, do you wish to make an opening statement?
The PRESIDENT —No, Mr Chairman, I do not. Thank you for your very warm welcome.
—In that case we will go to general questions.
Senator FAULKNER —Could I ask either you, Mr President, or the Clerk, to give us a broad overview of the role and functions of the Department of the Senate during the visits of President Bush and President Hu.
The PRESIDENT —The Black Rod might be able to help you.
Senator FAULKNER —I am happy for that, if that assists.
Ms Griffiths —In relation to the presidential visits, my role was a ceremonial one. We were also involved in asking senators to provide details of the guests that they wanted to bring, so I was liaising with the ceremonial and protocol section of Prime Minister and Cabinet. We did this for senators and the Serjeant-at-Arms' Office did this for members of the House of Representatives.
In relation to the day, as I said, my role was a ceremonial one. The security staff were involved in assisting ceremonial and protocol officers up in the galleries—showing guests to the galleries. With respect to the seating for the visit of President Bush, there was allocated seating for the central gallery—that is, the Speaker's gallery plus the rest of it—for guests of the President, the Speaker, the Prime Minister, the Deputy Prime Minister and the Leader of the Opposition. Otherwise all the seating was unallocated, so it was basically first in, best dressed. For the visit of President Hu, the seating arrangements were the same. In the central gallery there was allocated seating for the same VIPs as for the previous day. Unallocated seating and overflow visitors went to the glazed galleries, except in the case of Senator Brown's guests, where we were given a directive from the Speaker to seat Senator Brown's guests up in the glazed galleries.
Senator FAULKNER —I will come back to this at a later stage. I do not want to get bogged down on that issue at this stage. You were given a directive in relation to Senator Brown's guests from the Speaker?
Ms Griffiths —Yes.
Senator FAULKNER —As the Black Rod of the Senate, do you normally receive directives from the Speaker?
Ms Griffiths —Actually, the only written directive that I received from the President and the Speaker was in relation to keeping Senator Brown and Senator Nettle out of the chamber of the House of Representatives and the galleries for the Friday visit. The other directive that came from the Speaker was given orally to me and that was given to the security staff.
Senator FAULKNER —I will revisit this matter at a later stage and it is possible that other senators will revisit it, too. Ms Griffiths, would it be possible to have tabled a copy of the written directive to you, please?
Ms Griffiths —Yes.
Senator FAULKNER —I would appreciate that. As I say, we can come back to that in more detail. Mr President, could I ask you, in relation to the Bush and Hu visits, about the level of consultation on security arrangements that you were involved in.
—The Speaker and I were briefed on security matters. Along with Terry Crane, the head of security, we took the opportunity to walk the forecourt one morning to look at where the barriers were proposed to be moved to for the Bush visit. Other matters were discussed. The Black Rod was with us on that particular day, as I recall, along with the head of security, in order to give us an on-ground briefing regarding where it was proposed to move the temporary barriers to—on the other side of the road, actually. Apart from that, there was not anything that did not normally happen.
Senator FAULKNER —I appreciate that the question I have just asked might fall more broadly into the responsibility of the Joint House Department, so we can try to narrow it down at this stage of the committee's proceedings. Mr Evans, could you indicate what role, if any, the Department of the Senate had in relation to security arrangements for the visits? That might be helpful, appreciating that the broadest coordinating responsibility obviously fell, it is correct to say, Mr President, effectively to the Joint House Department as opposed to the Department of the Senate.
Mr Evans —Basically the role of the Senate department was to consult with the officers responsible for security about the security arrangements on the day. That consultation was largely undertaken by Ms Griffiths.
Senator FAULKNER —What was the time frame of that consultative work, Ms Griffiths? Can you indicate when that started? I assume it concluded after the visit, but when did that process kick off?
Ms Griffiths —Probably about a month before. We had an advance party visit from the White House. I cannot remember the exact date, but I can get that for you. It would have been approximately a month before. Security arrangements were certainly hotting up at least a fortnight before. Mr Crane was liaising directly with secret security staff, and that would have been from a month down but really concentrated in the last fortnight before the visit.
Senator FAULKNER —Mr Crane is an officer in the Joint House Department?
Ms Griffiths —Yes.
Senator FAULKNER —It is best to deal with those sorts of issues when we deal with the Joint House Department.
Ms Griffiths —He was consulting me throughout that, but the day-to-day dealing with the secret service was his role.
Senator FAULKNER —We have the Department of the Senate before us; I am trying to get a broad understanding of the role of that department. Did the Department of the Senate have any role or involvement in the closure of the parliament to the public and schools? Was it consulted on that?
Mr Evans —It was more the situation that we were told about it, but the department was involved in the consultations about what security measures were going to be taken.
Senator FAULKNER —Who told you about it? You are saying that you were not part of the decision making process; you were informed that it was going to occur. Is that the nuance?
—Basically, the officers responsible for security had the responsibility of advising whether that step should be taken or not, presumably in consultation with the other governments concerned, and the decision was taken.
Senator FAULKNER —How were you informed of this? Who informed you?
Mr Evans —Ms Griffiths, basically.
Senator FAULKNER —Let us play pass the parcel. How were you informed?
Mr Evans —Basically, after her consultation she told me that the decision would be to close the building on security advice.
Ms Griffiths —That was at a meeting that I had with the Speaker, the President, the executive leader of security and the Serjeant-at-Arms.
The PRESIDENT —We were given advice by those involved, and the Speaker and I signed off on the fact that we were well aware of what was going to happen about the schools and about closing the parliament until 1 o'clock. It did have our approval and we were briefed on it.
Senator FAULKNER —Where did those recommendations come from?
The PRESIDENT —They came from the security people and the security board.
Ms Griffiths —The executive leader of security.
Senator FAULKNER —The security board did not meet on these matters?
Ms Griffiths —No.
The PRESIDENT —No.
Senator FAULKNER —At no stage during this?
Ms Griffiths —No.
Senator FAULKNER —Who is on the security board?
Ms Griffiths —The chairman is the Secretary of the Joint House Department, Mr Bolton. Other members are the Black Rod, the Serjeant-at-Arms, the executive leader of security, a representative from DPRS and the Protective Security Coordination Centre.
Senator FAULKNER —Are you saying that that board did not meet at any time in the lead-up to the visits of President Bush and President Hu?
Ms Griffiths —Correct.
Senator FAULKNER —Why was that?
Ms Griffiths —The main players were too busy with the planning of the visits to meet.
Senator FAULKNER —What is the role of the security board in these sorts of things? Is it nonexistent?
Ms Griffiths —No. That is the first time that has happened. Normally our role is to provide protective security advice—longer-term strategic advice—to the Presiding Officers. I do not see that it would have to meet in relation to a visit like this.
Senator FAULKNER —Where does the advice come from?
—It comes from ASIO and the Protective Security Coordination Centre—all the intelligence agencies provide advice to the Executive Leader (Security) and he responds to that advice.
Senator FAULKNER —But the group that has been established in Parliament House to provide advice to the Presiding Officers was at no stage convened in the lead-up to these two visits to provide such advice to the President of the Senate and the Speaker of the House of Representatives?
Ms Griffiths —No, but the Executive Leader (Security), the Secretary of the Joint House Department, Black Rod and Serjeant-at-Arms were receiving briefings from the intelligence agencies and provided advice to the Presiding Officers as a result.
Senator FAULKNER —Is the security board at Parliament House redundant?
Ms Griffiths —No, because we still have to provide advice on long-term arrangements to the Presiding Officers—for example, the current white barrier around Parliament House—and we still have to be there to get security advice from the intelligence agencies and provide advice accordingly if the nature or the level of threat changes.
Senator FAULKNER —Why was it bypassed? I have always accepted that visits of heads of state, such as the President of the United States and the President of the People's Republic of China, are matters where there is a high security interest and I am very surprised to learn that the board would not meet, at least in the early planning stages, about these sorts of visits.
The PRESIDENT —As you would be aware, the security board was set up to advise the Presiding Officers on practical security arrangements around the house—
Senator FAULKNER —There were a hell of a lot of practical security arrangements in relation to President Bush's and President Hu's visits.
The PRESIDENT —such as the roller doors, the parking areas and the temporary security in the front. There are those types of matters but I believe the day-to-day security matters are best handled by those people on the ground that are charged with that responsibility.
Senator FAULKNER —That is a fair enough point to make. As I understand it, in the past the board has received advices from a range of agencies, distilled and analysed that advice and then provided advice to you and the Speaker. Isn't that the way it has worked in the past?
The PRESIDENT —Yes, but since I have been President of the Senate we have not had any official visits other than these two. I would have thought all security matters involved with the presidential visits would have been matters for our Parliament House security, the AFP and the security people of the countries concerned.
Senator FAULKNER —Yes, but we have been told previously that the security board coordinates security in Parliament House. That is its role; it is the key advisory body to the Presiding Officers, isn't it?
—As I said earlier, I think its role is to provide longer-term strategic advice to the Presiding Officers. We would not see our role in every official state visit to Parliament House as being to meet to discuss the day-to-day operations of how that visit would happen. I would not see that as our role. Everyone on the board was involved in the two presidential visits, except one member.
Senator FAULKNER —What was the one exception?
Ms Griffiths —The representative from DPRS-DPL.
Senator FAULKNER —Has the Department of the Senate received any complaints, formal or informal, Mr Evans, as a result of any of the arrangements surrounding the visits of President Bush or President Hu?
Mr Evans —I have not received any formal complaints. There have been a lot of complaints in the air, as you probably know but, if you are thinking of people writing with formal complaints to the department, no, I am not aware of any.
Senator FAULKNER —Okay. What about the role of Senate attendants during the visit of our international guests—because those particular attendants are effectively under your direction, aren't they, Mr Evans? I am talking about Senate attendants.
Mr Evans —You are talking about Senate attendants as distinct from security attendants?
Senator FAULKNER —Correct me if I am wrong but you are the immediate superior of the Senate attendants, whereas the security attendants would be subject to the authority of officers in Joint House. That is correct, isn't it?
Mr Evans —Directly, yes, and ultimately to the advisory board, as you mentioned.
Senator FAULKNER —Certainly not the advisory board because they have not met.
Mr Evans —Certainly the security staff are now located in the Joint House Department. But, yes, the Senate chamber attendants are under the control of the Senate department.
Senator FAULKNER —How many Senate chamber attendants, to use that terminology, do we now have? It is only a comparatively small number, isn't it?
Ms Griffiths —There is a pool of five, including the supervisor. On the days of the presidential visits, two Senate chamber attendants assisted the House of Representatives chamber attendants in the floor of the House of Representatives chamber to help escort senators to their seats.
Senator FAULKNER —What instructions, if any, were given to Senate chamber attendants during the joint meetings?
Ms Griffiths —As I said previously, they were there to provide assistance to senators to show them where to sit.
Senator FAULKNER —That is all?
Ms Griffiths —Yes.
Senator FAULKNER —There were no other instructions provided to these attendants about how to treat senators or members?
Ms Griffiths —No.
—On the second day of the events, I gave an instruction—if it was an instruction—that Senate attendants were not to physically impede any senators trying to enter that second sitting on that second day.
Senator FAULKNER —Why did you give that instruction?
Mr Evans —Because I did not want Senate attendants physically interfering with senators who were trying to attend a meeting of the Senate.
Senator FAULKNER —Was this in the aftermath of Senators Brown and Nettle being named and suspended in the joint meeting the day before?
Mr Evans —Yes.
Senator FAULKNER —So it was in that context?
Mr Evans —And the instruction that those two senators were not to be allowed to enter that meeting on the second day. My subsidiary instruction, if I can call it that, was that Senate attendants were not to be involved in physically restraining senators, if it came to that.
Senator FAULKNER —So in fact there were different instructions, or there were at least additional instructions—would that be a fair way of describing it?—in relation to Senate attendants.
Mr Evans —There was that particular one, yes.
Senator FAULKNER —How did that differ from instructions to the attendants who were working, effectively, to the authority of officers in Joint House?
Mr Evans —I will ask Ms Griffiths to say what the instruction was to those people.
Ms Griffiths —It is listed in the directive that I have now tabled. The Presiding Officers just said:
We hereby authorise you and officers under your direction to take appropriate measures, including in the event that it is necessary, preventative force to enforce the suspension—
of Senators Brown and Nettle.
Senator FAULKNER —Yes, but this security directive did not go to attendants in the Department of the Senate—is that correct?
Ms Griffiths —That is correct.
Senator FAULKNER —It went, as far as you are aware, to all other attendants in the building—is that right?
Ms Griffiths —Yes.
Senator FAULKNER —Do you know who else it went to?
Ms Griffiths —It would have only gone to the security attendants.
Senator FAULKNER —It would have only gone to the security attendants?
Ms Griffiths —Yes.
Senator FAULKNER —What about your own role as the Black Rod in your official responsibilities in the joint meeting?
—I really had no role except the announcement of duties. Because it was in the House of Representatives chamber, the Serjeant-at-Arms was in control. If a senator or member were to be suspended, it would be the Serjeant-at-Arms who would be involved, not the Black Rod.
Senator FAULKNER —So there would be no suggestion of blocking senators attending the joint meeting—to `take appropriate measures, including in the event that it is necessary, preventative force' ? That would not be something that would have been asked of you?
Ms Griffiths —No, I was directed to do that. So, for example, if Senator Brown had come through the glazed gallery and got to the chamber, I would have had to have used all my persuasive techniques to ask him not to enter, but I would not have forcibly moved him.
Senator FAULKNER —So there is one rule for the Black Rod of the Senate and another for Senate attendants?
Mr Evans —No, I should explain. The direction that I gave was a direction to all Senate staff, not just the attendants.
Senator FAULKNER —So your direction, Mr Evans, was as applicable to the Black Rod, Ms Griffiths, as it would be to the Senate chamber attendants?
Mr Evans —Yes.
Senator FAULKNER —Hence, Ms Griffiths indicating that she would have been as persuasive as she could have been. Ms Griffiths, what would have been your attitude? You would not have fulfilled the requirements of the security directive that, in part, is under the signature of the President of the Senate?
Ms Griffiths —I would have, because I think my persuasive skills would have convinced Senator Brown not to enter.
Senator FAULKNER —It is a serious point here.
Ms Griffiths —Yes, that is correct.
Senator FAULKNER —The President of the Senate has co-signed a security directive in relation to the exclusion of senators from `the event', as it is described here—the joint meeting, as I would prefer to describe it—and you were authorised by this directive to use, if necessary, preventative force. That is one directive you have. On the other hand, you have a directive from Mr Evans, as Clerk of the Senate, not to use preventative force. I am just trying to understand where you fit into this equation. Would you have used preventative force or not?
Ms Griffiths —No.
Senator FAULKNER —Okay. How many staff in your own office, Ms Griffiths, if any, were dedicated to security functions for the Bush and Hu visits?
Ms Griffiths —In my office, none. All the security staff are now under Joint House, so Mr Crane would have the details of how many staff were on on that day.
Senator FAULKNER —Were there any additional costs borne by the Department of the Senate that you are aware of in relation to these visits?
—Yes, and Mr Crane also has those details. Overtime costs would have been higher that day. We have now negotiated an MOU with Joint House and we have capped the level of security funding at $19.3 million, which is shared—half by the Senate and half by the House of Representatives. Joint House cannot go over that cap, so it has to be found within those funds. There were no additional costs to the Department of the Senate, except the Clerk did offer the Senate department staff who were not required to come in on that day to be on paid leave at home. The cost of that, assuming that every person in the department was on leave for half a day, was approximately $23,700.
Senator FAULKNER —But you would have a record of how many. I appreciate the decisions that were made in relation to staff. You would have a record of how many staff actually attended and how many didn't, I assume.
Ms Griffiths —Not with me today, but I can get that for you.
Senator FAULKNER —Would it be best, Mr President, to deal with the costs of these visits when Mr Crane comes to the table?
The PRESIDENT —Joint House, yes, but I think it was about $43,000 for the Bush visit and about $4,000 for the Hu visit, I recall. They can confirm those with Joint House.
Senator FAULKNER —I think we can deal with that with Joint House if I could ask Mr Evans whether, if a relevant official is required, we might be able to bring someone to the table when we question Joint House. Would that be all right?
Mr Evans —Yes, certainly, we can do that.
Senator FAULKNER —Mr President, in relation to the response of the Speaker in the joint meeting when, at the conclusion of the joint meeting, Senators Brown and Nettle were named and a decision was taken to exclude them from the House of Representatives chamber for the ensuing 24 hours, had you discussed in the broad with the Speaker of the House of Representatives the issue of what might occur if any senator or member engaged in disruptive behaviour or conduct during the joint meeting—or what was believed by the Speaker to be disruptive conduct?
The PRESIDENT —Only in general terms. I think the Speaker was of the view that, given his discussions with Mr Organ, he was not expecting any disruptions. I just said, `Well, you can never tell on these sorts of occasions.' That is about as far as it went. I am aware that, on the Thursday before President Hu's visit, he did inform me of, and discuss with me, the fact that, given that two senators and one of the senator's guests had disrupted the parliament, he would instruct security officers to ensure that the guests of those senators that were involved in the disruption the day before were placed in the closed gallery.
Senator FAULKNER —Here I am just focusing on events in the lead-up to the joint meeting where President Bush addressed the Australian parliament. At the moment I would just like to limit my questioning to that period leading up to the first of the joint meetings, to hear President Bush. I wondered if you could indicate to the committee whether there had been any discussion between you and the Speaker about how he—the Speaker—would deal with any behaviour which, in the view of the Speaker, undermined the authority of the chair.
—As I indicated earlier, only in general terms did we discuss what might happen. As you would be aware, there was a debate in the Senate and a decision for the joint sitting to be conducted under the standing orders of the House of Representatives. I presumed that was what would happen.
Senator FAULKNER —So you were not aware that there was a possibility that a member or senator who, in the view of the Speaker, defied the authority of the chair could be named? You were not aware of that?
The PRESIDENT —No.
Senator FAULKNER —At any stage prior to the Thursday joint sitting?
The PRESIDENT —I did not know what was going to happen. I was not aware that anybody was going to be disruptive in the Senate. We discussed it in general terms.
Senator FAULKNER —I am not suggesting that you have a crystal ball. I am not suggesting for a moment that you would be able to predict what any member or senator might do. What I am asking is whether there had been any preplanning.
The PRESIDENT —No.
Senator FAULKNER —Mr Evans, are you aware of any preplanning at all?
Mr Evans —No. Going back to the time when these joint meetings were first instituted, there was general discussion about what might happen in the case of interjections, disruption and so on, but on this occasion it was not discussed at all I think—not with me, anyway.
Senator FAULKNER —Who was involved in this general discussion?
Mr Evans —Going back to when we had the first of these joint meetings and we first adopted—when I say `we', I mean the Senate—this resolution that the rules of the House of Representatives would apply so far as they are applicable to the joint meeting. There was some discussion about what would happen in the case of disruption, what the Speaker could do and what the Speaker could not do. That discussion was not repeated on this occasion in any systematic fashion.
Senator MURRAY —What year are you referring to?
Mr Evans —It was 1991-92 when we first adopted it. I keep saying `we', Mr Chairman; I do not apologise for identifying with the institution. When the Senate first adopted this procedure of the joint meetings, there was discussion about what rules would apply, how this should be expressed and what would happen. All that was just left up in the air, I think, and not revisited in any systematic fashion on this occasion.
Senator FAULKNER —Do you as Senate Clerk have a view as to whether it is competent for senators to be named and excluded?
—The resolution of the House of Representatives agreed to by the Senate says that the rules of the House of Representatives shall apply so far as they are applicable. That is one of those phrases that drafters of things put in when they are not sure what the situation is, what the interpretation should be and how the rules are going to apply. They put that in and keep their fingers crossed that they do not have to interpret it. You can argue a great deal about what that expression means and how far the rules were applicable. There is a great difficulty with having, simultaneously, a meeting of the Senate—which this is—and a meeting of the House of Representatives in the House of Representatives chamber and saying that someone else—the Speaker and members of the House of Representatives voting on the question—can decide whether a senator is permitted to attend a meeting of the Senate. You can say that that is a question so significant to the Senate and so exclusively for the Senate to determine that that adoption of House of Representatives rules cannot possibly extend to that question. If it were a legal question before the High Court, a great many QCs would receive a great deal of money for arguing it. But it is very dubious that that sort of expression in that resolution covers that sort of situation.
Senator FAULKNER —Has the Department of the Senate given any consideration—again, in the broad—to the actual constitutionality of such a joint meeting?
Mr Evans —Not again. These questions were raised when this procedure was first adopted. They have not been revisited in any systematic fashion. But there are great potential difficulties with the two houses having simultaneous meetings and then providing that someone else will preside over what is in effect a meeting of the Senate and that members of the House of Representatives will be voting about what goes on in a meeting of the Senate. There is a great difficulty with that situation. All this was raised back in 1991. I raised it with everybody who was willing to listen to me, and a good many were not. Some were and some were not. There has been no systematic revisit of it.
CHAIR —Senator Brandis, I think you had a few questions.
Senator BRANDIS —Do you mind if I pursue this same issue, Senator Faulkner?
Senator FAULKNER —Not at all, Senator Brandis.
Senator BRANDIS —Mr Evans, what do you say was the constitutional character of the proceedings in the House of Representatives chamber for President Bush and President Hu?
Mr Evans —On one view it had no constitutional character because it is not provided for in the Constitution but, theoretically, it was a meeting of the Senate which happened to be taking place in the House of Representatives chamber at the same time as a meeting of the House of Representatives was occurring there. This is the way in which it was framed in the resolutions. The Senate, in its resolution, agrees to meet for that purpose—for the purpose of receiving the address—and it agrees to meet simultaneously with the House of Representatives in the House chamber.
Senator BRANDIS —So it was not a joint sitting?
Mr Evans —No. I have been very careful and I have tried to persuade other people to be careful about calling it a joint meeting rather than a joint sitting to distinguish it from the joint sitting, which is a particular arrangement occurring under the Constitution.
Senator FAULKNER —I think the Hansard record of these particular hearings will show that I am one at least who is convinced on that point.
—Section 57 of the Constitution refers to a joint sitting where the members of the two houses will meet and vote together, so it is a different body constituted under that provision of the Constitution. It is not a meeting of the Senate, it is not a meeting of the House of Representatives; it is an entirely different body consisting of the members of the two houses meeting and voting together. As a purist I take the view that it is not open to the two houses to authorise that sort of different body to meet for any purpose other than under section 57 of the Constitution.
Senator BRANDIS —Is that because the joint sitting contemplated by section 57 operates under the circumstances provided for by section 57—that is, after a double dissolution election and not otherwise?
Mr Evans —Precisely.
Senator BRANDIS —There is nowhere else in the Constitution is there which provides for a joint sitting?
Mr Evans —No. There is a provision in the Constitution, section 50, which says the two houses can provide rules for their proceedings either separately or jointly with the other house, or some words to that effect. Some people take the view that that authorises the houses to hold joint meetings on all manner of things if they want to; other people take the view that that refers specifically to the joint sitting under section 57 and nothing else, which is the only constitutionally authorised joint proceedings.
Senator MURRAY —You mean it is a mechanism to set up rules by which a joint sitting can occur?
Mr Evans —Yes, indeed.
Senator BRANDIS —I am just looking at that now, Mr Evans. Section 50(ii), which is what you are referring to, seems to be adjectival and it seems to operate upon there being in existence an independent ground for a joint sitting.
Mr Evans —As I said, if it were a question of law, highly paid QCs could make a lengthy submissions about the subject.
Senator BRANDIS —Is that your view, Mr Evans?
Mr Evans —My view is that that refers to joint sittings under section 57 of the Constitution and nothing else.
Senator BRANDIS —At the Centenary of Federation, for instance, there were the proceedings in the Exhibition Building in Melbourne. Do you say that is of the same character—that it is merely a joint meeting?
Mr Evans —It is merely a meeting of the Senate in the Exhibition hall simultaneously with a meeting of the House of Representatives.
Senator BRANDIS —If that be so, then it is not just a meeting of the Senate but also a meeting of the House of Representatives.
Mr Evans —Occurring simultaneously in the same place.
Senator BRANDIS —Yes. But you agree that it is also a meeting of the House of Representatives?
Mr Evans —Yes.
—Which, on this occasion under resolutions adopted by the Senate, was presided over by the Speaker of the House of Representatives, that being the place of the meeting? I am going back now to President Bush and President Hu.
Mr Evans —Yes, but you still have the problem that, apart from the joint sitting under section 57 of the Constitution, the houses are not constitutionally authorised to have joint sittings about anything else. On one view that means they are not permitted to have a joint sitting of themselves, meeting and voting together in accordance with the words of section 57 on other matters, which involves, in particular, other people presiding over a meeting of the Senate and determining the proceedings of the Senate and who, how and when senators should attend.
Senator MURRAY —Doesn't that refer to a deliberative meeting? This was just a meeting to listen.
Mr Evans —Yes, exactly. That is why, when we were drafting the original resolution—going right back to 1991—we put in the phrase `the only business transacted shall be ...' That was an attempt to limit this occasion, or whatever you might call it, down to that very confined scope of business. It was hoped that nothing else would occur that would give rise to all these difficult problems.
Senator BRANDIS —But what it really amounts to—I am just following Senator Murray's question—is that that proceeding, to use a neutral word, had no legislative competency? It could not have purported to exercise the legislative power of the Commonwealth.
Mr Evans —No.
Senator BRANDIS —But it was still a simultaneously occurring meeting of each of the two houses of the Commonwealth Parliament?
Mr Evans —Yes, indeed, but when you get the members of the House of Representatives and the Senate voting together to decide whether a senator is permitted to attend the meeting of the Senate, that is when you have the difficulties that I referred to right back in 1991, as I say to anyone who would listen, and which we hoped never would arise.
Senator BRANDIS —But, of course, Mr Evans, in voting on a resolution of that character, they were not exercising the legislative power of the parliament.
Mr Evans —No, but they were exercising a power, in effect impinging on the composition of the Senate.
Senator BRANDIS —The common law of parliament applies to all meetings of parliament, and you expand on this with great scholarship in Odgers'. At a joint meeting of the Senate and the House of Representatives in the House of Representatives presided over, by agreement of the Senate, by the Speaker of the House of Representatives, the ordinary laws of contempt apply, don't they?
—-That is a very difficult question. Let me put it this way: if Senator Brown were of a litigious character and liked to take a case to the High Court about this, on one view, the High Court would say this was an internal parliamentary preceding governed by the rules of the two houses and agreed to by the two houses, and therefore it is not justiciable. That is at one end of the spectrum. At the other end of the spectrum it could be determined as a matter of law, and the High Court could in effect say, `The two houses are not constitutionally authorised to start meeting and voting together on things except under section 57. The Constitution does not authorise that and therefore this whole business was unlawful. You can't have a joint meeting voting to exclude senators from meetings of the Senate. That is bizarre under the Constitution, therefore the whole thing was unlawful.' That is the other end of the spectrum. As I say, my view on the whole thing was not to create situations where these difficult questions arise.
Senator BRANDIS —Would you agree Mr Evans that, whenever the Senate or the House of Representatives meet in whatever character, whether exercising the legislative power or convening for an essentially ceremonial occasion, the ordinary law of contempt and of parliamentary privilege, the source of which is not to be found in the Constitution but elsewhere, does apply irrespective of whether they are exercising a legislative function?
Mr Evans —Yes, in general terms, but it would very much depend on the occasion.
Senator BRANDIS —I am looking at page 68 of the current edition of Odgers' Australian Senate Practice, which refers to the situation where the Presiding Officer of one chamber may discipline a member of the other chamber. What is said there is as follows:
It is a fundamental principle that one House of the Parliament has no authority over members of the other House except in the immediate conduct of its own proceedings or those of its committees ...
Mr Evans —Yes, and that only makes more dubious what occurred at that joint meeting. What that refers to is, for example, the Speaker ordering a senator out of the senators gallery in the House of Representatives, at a meeting of the House of Representatives.
Senator BRANDIS —Exactly. Whatever else it was, it was a meeting of the House of Representatives, presided over by the Speaker of the House of Representatives, albeit simultaneous with a meeting of the Senate. Does it not follow from what you write in Odgers' that the Speaker of the House of Representatives, as the master of the procedure of the House of Representatives, does have jurisdiction in respect of contempt committed by a senator?
Mr Evans —That does not follow at all, because what the members of the two houses voting together, on one view, or the Speaker, on another view, purported to do was to exclude a senator from a meeting of the Senate. That is a decision of an entirely different order—and, what is more, a different meeting of the Senate which was to take place on a different day.
Senator BRANDIS —But, Mr Evans, that leaves out of the account the fact that the Senate had itself passed a resolution to adopt House of Representatives procedures.
Mr Evans —`So far as they are applicable'.
Senator BRANDIS —Well, those are weasel words.
Mr Evans —Yes, exactly.
—I think we are all pretty satisfied; I agree with Senator Faulkner that this was not a joint sitting. It could not have been a joint sitting under section 57, and there is no other form of joint sitting. The joint meeting, presided over by the Speaker of the House of Representatives, conducted under House of Representatives procedures, and the Speaker exercising his jurisdiction or authority in respect of contempt, which is exercisable against a member of the other chamber in the circumstances described on page 68 of Odgers', was the situation with which we were seized, was it not?
Mr Evans —There is a further difficulty there. I think you have to leave aside the question of contempt and the contempt jurisdiction.
Senator BRANDIS —Why?
Mr Evans —What you have here is questions of order. The ability of each house to maintain order in its own proceedings, and the ability of its Presiding Officers to maintain order in its own proceedings, is distinct from the contempt jurisdiction of each house.
Senator BRANDIS —Except, Mr Evans, you would agree, surely, that defying a proper order of a Presiding Officer—and leaving aside the dispute we can have about whether it was a proper order—may constitute contempt, and contumelious defiance certainly would constitute contempt.
Mr Evans —Only if explicitly declared by the house to be such. Short of that, it remains simply a question of order. Whenever a member of the House of Representatives is thrown out of the House of Representatives and excluded for 24 hours, the House does not adjudge them guilty of a contempt. It simply adjudges them guilty of a breach of order, which is a different thing. If the breach of order were sufficiently serious, it could revisit the question and say, `That member was also guilty of a contempt,' and impose some further penalty. But the maintenance of order jurisdiction and the contempt jurisdiction are separate and the contempt jurisdiction does not come into the question unless it is explicitly invoked.
Senator BRANDIS —They are separate but overlapping, Mr Evans, because defiance of a proper order may constitute contempt.
Mr Evans —It may, but only if explicitly declared to be such by the house concerned.
Senator BRANDIS —Quite. The contempt jurisdiction may be attracted—not necessarily will be, but may be attracted—by defiance of a proper order.
Mr Evans —Yes, and each house could adjudge that a member who had been guilty of a breach of order was also guilty of a contempt and impose some penalty. But you get to even more difficult questions than the ones we have been talking about if you then say, `The House of Representatives can adjudge a senator guilty of a contempt of the House because, while attending a simultaneous meeting of the Senate and the House of Representatives in the House of Representatives chamber, the senator was guilty of a breach of order.' That raises even more difficult questions.
Senator BRANDIS —That seems to be what you say on page 68 of Odgers'.
Mr Evans —No—
—As I read it, it says that the one circumstance in which a member of one chamber may be adjudged guilty of contempt of the other or subject to the jurisdiction of the other is when there is a contempt in the face of the other. Although this was a meeting of the Senate, it was also a meeting of the House of Representatives presided over by the Speaker of the House of Representatives under House of Representatives procedure and, to the extent to which a senator's conduct may have been contemptuous of the House of Representatives, that was the very set of circumstances in which the Speaker's jurisdiction was attracted.
Mr Evans —Yes, but everyone agrees that the ability of the Speaker to maintain order in the House of Representatives extends to excluding a senator from the galleries and so on, not excluding a senator from a meeting of the Senate which is to take place on a separate day and under a separate resolution.
Senator MURRAY —Would the action have been legitimated if the Speaker had allowed a vote of the Senate to occur there and then and a majority of the senators had confirmed the exclusion of Senator Brown for the next day?
Mr Evans —Not if the Speaker called for a vote of the Senate. It would have to be the Senate itself.
Senator MURRAY —If the President had done so and the senators—not the House of Representatives—had agreed, would that have legitimated the action?
Mr Evans —The problems I am talking about would not then have arisen. If we are going to continue with this practice of joint meetings we may have to adopt some rule like that—if a senator commits a disorder, the President and the Senate will deal with that senator. That may get over the problem. We may need an elaborate set of rules to deal with situations like that. But I emphasise that it is precisely because of all these difficult questions that right back in 1991 I said to anyone willing to listen, `Don't hold these things as formal meetings of the two houses. Have them as gatherings of members and senators only, hosted by the Presiding Officers, and not formal meetings because that gives rise to too many difficult questions.'
Senator BRANDIS —Mr Evans, do you think it would be constitutionally possible for the Senate to have passed a resolution in relation to this meeting deeming the Speaker of the House of Representatives to have the powers exercisable by the President of the Senate for the purposes of the meeting?
Mr Evans —That would only compound the problem—
Senator BRANDIS —Yes, I suspect it would not be—
Mr Evans —and would allow Senate Brown's lawyers to spend a couple of extra days in the High Court arguing the matter, I suspect.
Senator BRANDIS —Even this expression `joint meeting' is apt to be a little misleading, because it kind of implies that, from a constitutional point of view, the two houses together have a corporate unity. If it is as you have explained—and I am inclined to agree with you—then there is simply no corporate parliamentary entity at all; it would be truer to say that it was a simultaneous meeting of the Senate and the House of Representatives.
Mr Evans —Yes. That is the very expression I started using back in 1991. It was not picked up, so I started saying `joint meeting'.
Senator BRANDIS —Then I go back to my point. If that be so, then it seems even more apparent that that is the circumstance in which, to the extent to which there is disruption of the House of Representatives at that simultaneous meeting by a senator in attendance, the disciplinary power, which you describe at page 68 of Odgers', is exercisable.
—As I said, that does not follow at all. That sentence in Odgers' refers, as I said, to such things as a senator causing disruption in the gallery of the House of Representatives, not to these other strange gatherings that we have now had four of.
Senator BRANDIS —Or a senator causing disruption in the House of Representatives chamber during the simultaneous meeting, which is, insofar as the Speaker of the House of Representatives is concerned, a meeting of the House of Representatives.
Mr Evans —Yes, but the action of the Speaker also had the effect of excluding a senator from a meeting of the Senate, as I said, on a separate day, operating under a separate resolution. This raises very, very difficult questions which, as I said, I think I would rather not create a situation where they arise.
Senator MURRAY —Again, for a point of clarification, you are arguing that there may have been, under the argument put by Senator Brandis, some legitimacy to the ejection motion—there may—but not to the subsequent motion to exclude them the next day because that was a completely separate set of events.
Mr Evans —That compounded the situation and made it more difficult.
Senator MURRAY —But the point you are making is that the Speaker of the House absolutely cannot exclude a senator from a Senate meeting.
Mr Evans —Correct.
Senator BRANDIS —But can exclude a senator from a House of Representatives meeting.
Mr Evans —Yes, but the action of the Speaker had the effect of excluding a senator from both.
Senator BRANDIS —If what the Speaker was doing was expelling a senator from a meeting of the House of Representatives, and that had the incidental but inevitable consequence of making it impossible for the senator to attend a meeting of the Senate, then that is slightly different. I know that it is a very fine distinction and perhaps only a theoretical distinction. But the jurisdictional character of what the Speaker was doing was in fact to exclude a person causing disruption from a meeting of the House of Representatives. The effect obviously was otherwise, but the character of the jurisdiction being exercised was as I have said, wasn't it?
Mr Evans —As I say, my view is: let us not create situations where these difficult questions arise. I noticed that when I started raising some of these points my colleagues at the other end of the building started talking about the Speaker excluding the two senators from the House of Representatives chamber. They were aware that there was a difficulty here and they started saying that it really only excludes them from the chamber, which indicated an awareness that there was a big problem there. When we went to the meeting on Thursday, I remarked jocularly to some people in the chamber, `I'd better watch out for the Prime Minister, that he doesn't try to put a few bills through while we're meeting here.'
Senator BRANDIS —I do not think anybody is more sensitive to the limitations of section 57 of the Constitution, Mr Evans, than the Prime Minister.
—You have to watch prime ministers, Mr Chairman. There is a serious question here. Suppose the Senate said, `In dealing with the higher education legislation we will invite representatives of the senates of the various universities to come and sit here with us in the Senate chamber and debate the matter with us and then to vote on the legislation. We'll take note of their votes on the legislation, and we'll travel around the country meeting with this body and that body.' I think you would get to a point where even the most non-activist judiciary would have to say, `The Senate is not authorised to do that. The Senate is authorised under the Constitution to meet and vote by itself on legislation. It is not authorised to be conducting joint meetings with anybody else and voting with other bodies.'
Senator BRANDIS —Mr Evans, it is simpler than that. In the example you have given, that simply would not be a meeting of the Senate.
Mr Evans —It would if the Senate resolved that we were going to meet next Thursday in the chamber of the senate of the University of Sydney.
Senator BRANDIS —That might be a meeting, but it would not, for any constitutional purpose, be a meeting of the Senate. There can only be a meeting of the Senate if those who are members of that meeting are senators and the Senate is quorate and if appropriate notice provisions have been observed. It is not a meeting of any constituted body—whether a parliamentary or corporate body—if persons with no entitlement to be present are participants in the meeting. So what you have described would not be a meeting of the Senate; it would be a meeting of a group of senators with non-senators and have no constitutional status or character whatsoever.
Mr Evans —But it would only be a very slight extension of what happened in the House of Representatives chamber. That was a meeting of the Senate. There were senators present—the Senate quorate, as you say. But members of the House of Representatives were permitted to vote and to determine a question of whether a senator would be permitted to attend a meeting of the Senate. That is where the difficulty arises. If the Senate said, `We're going to hold a meeting of the Senate next Thursday in the meeting room of the University of Sydney senate. It is going to be a joint meeting. We'll all debate things happily and then take a vote to see whether we decide to pass this higher education legislation,' that would be directly analogous to what occurred in the House of Representatives chamber.
Senator BRANDIS —Except, if your thesis is right—and I think it is—and, strictly speaking, the constitutional character of this event was a simultaneous meeting of the Senate and the House of Representatives, the jurisdictional character of what the Speaker did was to exclude a senator from a meeting of the House of Representatives. That had the necessary consequence of also excluding him from a meeting of the Senate. But, if the question is whether the Speaker has the jurisdiction to do that, then it seems—in particular following what you have written on page 68 of Odgers'—that he did.
Mr Evans —As I keep saying, that does not follow at all from that statement on page 68 of Odgers'. Senator Brandis would know that one of the favourite tricks of lawyers is to take an argument to its absurdity. That is just what I have done with the meeting of the Senate simultaneously with the senate of the University of Sydney. It is no different in principle.
CHAIR —That is a very unfair characterisation of lawyers.
—This will not be the last absurdity that we will hear about this because, as you know, the Senate resolved to send this matter about joint meetings or joint sittings—whatever you like to call them—off to the Procedure Committee.
Senator BRANDIS —Of course, the other way around it, Mr Evans, would be to rely on section 1 of the Constitution and, if the Governor-General were present, say that it was a meeting of the parliament.
Mr Evans —I think that would only compound the difficulties.
Senator FAULKNER —Chair, in a previous meeting of this estimates committee, Senator Brandis was unkind enough to take a point of order on me, suggesting that one of my questions was hypothetical in nature. Given your attitude as the chair now, I am assuming that any hypothetical question will be ruled in order, because we have had many in the last half-hour.
CHAIR —Only if I deem it relevant, Senator Faulkner.
Senator FAULKNER —I see.
Senator BRANDIS —Have there been hypothetical questions? I thought we had constitutional questions.
Senator FAULKNER —Mr Evans, we were speaking before about the security directive from Mr Andrew and Senator Calvert. You indicated that a different approach was taken in relation to Senate staff. I think you indicated that any directives to them were verbal—is that right?
Mr Evans —Yes.
Senator FAULKNER —How was that done? Who made those directives to Senate staff?
Mr Evans —Do you mean my `directive'?
Senator FAULKNER —Yes.
Mr Evans —That was done by me saying to Ms Griffiths that no Senate officer is to lay hands on a senator.
Senator FAULKNER —When the Senate Clerk said that to you, Ms Griffiths, how did you communicate that to the relevant security staff?
Ms Griffiths —I advised my deputy, who advised the two staff that were working in the chamber.
Senator FAULKNER —Okay; thanks for that. Mr President, you have indicated to me that there was no preplanning—I think this is fair to say—prior to the action taken against the senators in the joint meeting; that there was no discussion between you and Mr Speaker about an issue where the authority of the chair was brought into question or there was disruptive behaviour or the like. Those matters were not discussed between you and Mr Speaker?
—The matter of disruptive behaviour was discussed, as I said earlier, in general terms when the Speaker indicated that he had spoken to Mr Organ and did not think there would be any trouble. I was of a different view. But there was nothing discussed about what was going to happen because in my view—and, given the discussion we have had this morning, it might be different from what I expected—the Speaker had the authority and the meeting was being held under the standing orders of the House of Representatives. I thought that was what the Senate had agreed to.
Senator FAULKNER —But you were not aware of how the Speaker would deal with an incident arising where a senator might have questioned or undermined, in the Speaker's view, the authority of the chair?
The PRESIDENT —No.
Senator FAULKNER —You were not aware of how such a matter would be dealt with?
The PRESIDENT —No. I know there are subtle differences between the standing orders in the House of Representatives and the Senate. As it turned out, that is the way the Speaker interpreted it. But we certainly had not preplanned anything. That was it.
Senator FAULKNER —Okay. That is what I wanted to get clear with you, that there had been no discussion about that prior to the joint meeting with President Bush. Subsequently, after the action was taken in the chamber, did you seek any interpretation about what impact that would have in terms of attendance in the chamber of the two senators who were named and excluded—that is, Senators Brown and Nettle?
The PRESIDENT —No, I did not, because I still presumed that the standing orders of the House of Representatives applied. Certainly I did not make any inquiries of the Speaker as to what was going to happen. I just presumed that, once the motion was put by the Leader of the House and it was carried on the voices—as you can remember, there was an amount of noise around the chamber: everybody in the chamber was clapping, including all the diplomats, at the decision on Speaker—and then we left.
Senator FAULKNER —So you did not have any discussions with the Speaker about how the naming and then exclusion of Senators Brown and Nettle would be interpreted?
The PRESIDENT —No; only the fact that I was of the belief—and that is why I signed the joint directive—that they were suspended for 24 hours and they would not be allowed to enter the chamber.
Senator FAULKNER —All right, but how did you come to that belief? What I am trying to find out is did you seek advices—
The PRESIDENT —I believed that because—
Senator FAULKNER —You have signed this particular security directive.
The PRESIDENT —Yes.
Senator FAULKNER —Let us go back a step. You have signed it; who drafted it?
The PRESIDENT —I believe it was drafted by the Speaker's senior private secretary. I will just check that is right. Yes, by the Speaker's senior private secretary.
Senator FAULKNER —Were you consulted on the wording?
The PRESIDENT —Yes. In fact, the wording was changed somewhat.
Senator FAULKNER —Did you seek any advices from Senate staff or others about the appropriateness of this course of action?
—Only to the effect of the wording of the letter. I did not seek any advice as to whether the power was there to keep a senator out because I just believed that we were working under the House of Representatives rules. Until this morning I still believed that to be the case.
Senator FAULKNER —I would not get too bogged down in this morning's discussion—not to suggest that it was not interesting. It might be interesting to the people around this table, but I think the ratings might have dropped off a bit. I hope that does not hurt the Clerk's feelings.
Mr Evans —I have never been in pursuit of ratings.
Senator FAULKNER —No, neither have I. I do not want to get bogged down on constitutionality; I just want to go to the facts of what occurred. This was drafted in the Speaker's office—is that correct?
The PRESIDENT —I believe so, yes.
Senator FAULKNER —Do you know when this was signed? I assume it was signed sometime on the Thursday after the Bush joint meeting.
The PRESIDENT —It was late Thursday afternoon.
Senator FAULKNER —I see. You proposed changes to the wording of the original draft?
The PRESIDENT —Yes.
Senator FAULKNER —Could you indicate what those changes were and why you proposed those changes?
The PRESIDENT —They were very minor. I cannot remember the exact words of the original instruction, but it was a little bit stronger than `preventative force'. We changed the wording.
Senator FAULKNER —Did you seek any advices on the appropriateness or otherwise of the use of `preventative force'?
The PRESIDENT —Not from the staff, no.
Senator FAULKNER —No, not from staff—did you seek any advice?
The PRESIDENT —Not from anybody else I didn't, no.
Senator FAULKNER —So you did not seek advice?
The PRESIDENT —No.
Senator FAULKNER —Was there any discussions with members of the executive about the development of this security directive?
The PRESIDENT —Which executive?
Senator FAULKNER —The executive government.
The PRESIDENT —No, not that I am aware—unless the Speaker did; I did not.
Senator FAULKNER —You are not aware of any?
The PRESIDENT —No.
—As far as you are aware, this was a matter that was being handled exclusively by the Presiding Officers and their staff?
The PRESIDENT —Basically by the Speaker, because it was a matter for the House of Representatives. I believed we were working under their rules.
Senator FAULKNER —As far as you are aware, there was no involvement beyond Mr Speaker's office—is that correct?
The PRESIDENT —Correct.
Senator FAULKNER —There is a subheading there `Serjeant-at-Arms' and `Usher of the Black Rod'. Can you explain to me, Ms Griffiths, why the Usher of the Black Rod is on this directive when you are giving different directives to the Senate staff? It does not seem to compute.
Ms Griffiths —Because I am responsible for the security of the Senate chamber as the Serjeant-at-Arms is for the House of Representatives and we would be jointly providing security advice to the Executive Leader (Security)—and probably because there were senators involved.
Senator FAULKNER —Your title is there. Did you see this before it went out?
Ms Griffiths —No, I saw it when I got it. I was advised that it was coming.
Senator FAULKNER —It has your name on it, but you saw it when you got it?
Ms Griffiths —Yes, because it is directed to me.
Senator FAULKNER —Is it directed to you?
Ms Griffiths —And the Serjeant-at-Arms. That is who it is sent to.
Senator FAULKNER —And it has been distributed more broadly?
Ms Griffiths —Yes, we gave it to the Executive Leader (Security) and presumably the security staff would have been advised.
Senator FAULKNER —When did you receive it?
Ms Griffiths —Late on Thursday. I cannot remember what time.
Senator FAULKNER —What did you do when you received it?
Ms Griffiths —Nothing, because the Serjeant-at-Arms advised me that he would be providing it to the Executive Leader (Security). I do not think it was until the next day that I gave a copy to my deputy.
Senator FAULKNER —Can you say, Mr President, just so we are clear, why the decision was made and who made the decision—it is in your name and the Speaker's name? Did you seek advice on the issue of the two senators not being permitted to approach the House of Representatives chamber through the glass linkways? Was that your decision and the Speaker's decision?
The PRESIDENT —Yes, it was.
Senator FAULKNER —Did you seek any advice on that or was that something you cooked up over in his office?
—No, I did not. If you read the letter, the Speaker advised me—and I always believed—that the joint meeting was being held under the standing orders of the House of Representatives. As you can see from our letter, he advised me that, given his decision in the chair, Senator Brown and Senator Nettle were not permitted to enter the chamber until after 11.55 a.m. on 24 October. I then conveyed that advice to the two senators involved.
Senator FAULKNER —Yes, I am aware of that. I think someone has made that public at a previous stage. That is right, isn't it? The letter to you, Senator Brown, was made public.
Senator Brown —I am not sure, but it should be tabled.
Senator FAULKNER —I thought it might have been. Could a copy of the letter be tabled, please, so that the record is complete?
The PRESIDENT —We can provide the letter addressed to the two senators.
Senator FAULKNER —Can you say when that advice was provided to the two senators?
The PRESIDENT —Not off hand. I can check. It was late on the Thursday, I understand.
Senator FAULKNER —Did you have a series of meetings with the Speaker in working out this approach?
The PRESIDENT —No. As I said before, I believed we were operating under the standing orders of the House of Representatives. He informed me, as he said in this letter, of what had happened. I then made the appropriate arrangements to send letters to both Brown and Nettle informing them officially of their suspension for 24 hours. The only discussions I had with the Speaker were about the next day.
Senator FAULKNER —Okay, we will get to that. I appreciate you conveyed advice to the two senators that they were not permitted to enter the chamber, but was advice subsequently provided to the two relevant senators about the details contained in the last paragraph of the security directive about not being permitted to approach the house through the glass linkways? Was that information provided to the two senators?
The PRESIDENT —I cannot recall, Senator, but it will be in the letter when we provide it. I did not verbally provide that instruction to them. Whatever was in the letter—I do not have it in front of me. I do not recall.
Senator FAULKNER —Can you explain the interface you had with the Speaker after the conclusion of the joint meeting for President Bush and before the meeting with President Hu? Could you very briefly detail for the committee what your role was in the preparation for the Hu joint meeting in the aftermath of what had occurred on the Thursday?
The PRESIDENT —I spoke with the Speaker and he indicated his concerns, given what had happened on the Thursday, that there may be disruption in the joint meeting on the Friday by the guests of the senators. He had given an instruction that the guests of the Greens would be taken to the enclosed gallery. He also told me at that meeting—or it may have been later—that he had received expressions of concern from some areas about invitation swapping. Some people had indicated their guests were X and they may have been Y.
Senator FAULKNER —Who had expressed concern?
—I am not sure whether he mentioned that on the Thursday or on the Friday as a subsequence of the other matter when the foreign minister came.
Senator FAULKNER —You said `there was concern from some areas' about invitation swapping. Who were the `some areas'?
The PRESIDENT —I think he might have said that officials from the Chinese Embassy had indicated to him that there may have been some people coming with invitations and they were not the people indicated on the invitations. I am not sure whether that was on the Thursday or the Friday morning. That was about as far as it went.
Senator FAULKNER —Who informed the two senators about the arrangements that would apply to their guests?
The PRESIDENT —I certainly do not know. It was a matter for the Speaker. He just said that he was going to make arrangements to ensure that those guests of the Green senators were placed in the overflow gallery, along with the overflow guests from other senators and members. They were not there on their own. As you know, the galleries were full. He took the precaution, given what had happened on the Thursday, to ensure that they were in the overflow gallery.
Senator FAULKNER —We do not know how or if the two senators were informed of this.
The PRESIDENT —I do not know. You should ask the Speaker that.
Senator FAULKNER —I cannot ask the Speaker, as you would be aware. I can only ask you.
The PRESIDENT —I do not know how that happened. He just told me that he had made arrangements for that to happen.
Senator FAULKNER —Ms Griffiths told us earlier that she took the responsibility, that it was one of her key roles, to deal with senators and their guests. Perhaps I should address this question to Ms Griffiths.
Ms Griffiths —My role in that was to ascertain who the senators' guests were. After that, ceremonial and protocol had officers stationed in the galleries. I was not involved in where they were seated or certainly the Speaker's ruling that Senator Brown's guests go up into the glazed gallery.
Senator FAULKNER —When did you become aware of that? Before the event or after the event?
Ms Griffiths —Before—probably on the Friday morning.
Senator FAULKNER —Who told you?
Ms Griffiths —The Serjeant-at-Arms.
Senator FAULKNER —How did you respond?
Ms Griffiths —I took it in my stead. The Speaker is responsible, so I could not voice my disapproval or otherwise.
Senator FAULKNER —I am not suggesting you should have. Just for the completeness of the record I am trying to understand what the response was, if any. But there was none.
Proceedings suspended from 10.34 a.m. to 10.53 a.m.
Senator FAULKNER —Mr President, I wonder whether you have able to dig out the copies of the letters and, if you have, whether you might be able to table them for the benefit of the committee.
Senator Calvert —Yes, I have. Also, there is a letter included there from the Speaker informing me of the decision of the joint meeting. I can table those if you want them.
Senator FAULKNER —I appreciate that and thank the President for tabling that material. Before our brief suspension, Mr Chairman, I was asking the President if he could outline for the committee the contact he had with Mr Speaker—and I will follow that through with questions about contact with any others—on this matter in relation to preparation for the joint meeting with President Hu. We are focusing now, Mr President, on events after the joint meeting with President Bush in the lead-up to the joint meeting with President Hu.
Senator Calvert —I am just checking with the Black Rod to make sure that we did have a dress rehearsal, if you like to call it that, on the Thursday afternoon of the ceremonials involved with the arrival of the President from China. It was after that that the Speaker informed me that he had made arrangements and had taken the decision—because of the interjections from the gallery that day—to put the Greens's guests in the glazed public gallery along with the other overflow guests of members and senators. I guess they were the only arrangements we made prior to the arrival of President Hu on the Friday morning.
Senator FAULKNER —I read an article in a newspaper, which might have been inaccurate—as you would be well aware, Mr President, many newspaper articles are inaccurate—suggesting that there were discussions on the Friday morning. The article suggested that those discussions were between Chinese officials—in fact, one newspaper suggested the discussions included the Chinese ambassador—yourself and the Speaker of the House of Representatives. Is that not accurate?
The PRESIDENT —We did have discussions, prior to the arrival of the President on the Friday morning, with the Chinese foreign minister—I understand that was his title—and one of his staff.
Senator BROWN —Mr Li.
The PRESIDENT —It was the Chinese foreign minister, whoever he was. While the Speaker and I were waiting for the president to arrive, the Chinese foreign minister arrived and we had brief discussions with him in the Speaker's office. He informed us that President Hu was concerned about possible interjections from the gallery, given what had happened the day before. The Speaker gave the minister an assurance that he had already taken measures, as far as possible, to stop that from happening. Basically, that was it.
Senator FAULKNER —Was it explained to the Chinese foreign minister what the measures that had been taken were?
—The Speaker informed the Chinese foreign minister that the guests of the Green senators were in the overflow gallery with guests of other members and senators and that he believed there would not be any interruptions given the fact that the two Green senators who had caused the disruption the day before would not be in attendance. The foreign minister left and about two or three minutes later the President arrived.
Senator FAULKNER —Were you involved in any discussions, apart from those with the Speaker? Were there any discussions with members of the executive, their staff, government staff, or representatives or others from the Chinese official party in the lead-up to those discussions with the Chinese foreign minister? Were there any discussions on the Thursday or early Friday morning with outside parties—in other words, those outside your office and Mr Speaker's office—about how these matters might be dealt with in the aftermath of President Bush's address?
The PRESIDENT —Senator, the only discussion I had with the Speaker was on the Thursday afternoon after our dress rehearsal for the ceremonial occasion. That was when he informed me of what he was going to do. The only discussions I had with representatives of the Chinese were just prior to the President's arrival. Prior to that, a week or so earlier, the Chinese Ambassador had come to visit—and I believe he visited the Speaker—as a precursor to the President's visit, raising concerns about what might or might not happen. As far as I can recall, those were the only discussions I had with any officials from the Chinese embassy or otherwise. I am not aware of whether other people spoke with government people or whether there were other discussions with the Speaker.
Senator FAULKNER —Was anyone from Mr Crean's office involved in the dress rehearsal, by the way?
The PRESIDENT —No, I do not think so.
Senator FAULKNER —Did the Speaker at any stage indicate to you that he had had expressions of concern from or by the executive, members of the government or government staff about what might occur in the House of Representatives chamber on the Friday?
The PRESIDENT —I cannot recall that at all, Senator, no. I am sure that he did not mention that at all. As I said, we had the ceremonial performance and he told me that he was going to put the guests in the closed-in gallery. I do not recall him mentioning any concerns from anybody else.
Senator FAULKNER —Can someone assist us with what happened with the placement of the guests in the gallery? You may be aware of it, Mr President. If you are not, perhaps an official from Joint House or from the department can assist us. I am still trying to nail down when this decision was made.
The PRESIDENT —As I said before, the decision was made on the Thursday afternoon; the Speaker told me that.
Senator FAULKNER —All right; it was made on the Thursday afternoon. Do we know yet whether Senator Brown and Senator Nettle were informed about arrangements in relation to their guests? Were they ever informed of this?
The PRESIDENT —Not by me. That would have to be the Speaker's call.
Senator BROWN —I can tell you that neither of us were.
—That is a very helpful intervention from Senator Brown because as a direct party he has been able to say they were not. Can I ask someone—it may need to be an official from Joint House—when the decision was made in relation to the guests of Senator Brown and Senator Nettle? Can someone please answer that.
The PRESIDENT —Perhaps we can deal with that when Joint House appears before the committee—or do you want them to come up now?
Senator FAULKNER —I am happy to deal with these matters when Joint House appears before us. I have flagged a number of issues that will need to be dealt with when the Joint House Department comes to the table. That is one of them. I am happy enough, but I do think in these circumstances that Mr Evans, Ms Griffiths or someone else from the Department of the Senate might need to make themselves available then, just in case there are some follow-through questions.
Mr Evans —Yes, we will certainly do that.
Senator FAULKNER —I would appreciate that. I will hold off my questioning about that area until we are examining the Joint House Department. I assume, Mr President, that questions in relation to the unauthorised placement and use of cameras in the precincts of the House of Representatives chamber and the aftermath of that incident are also matters best dealt with when we question Joint House? Would that be correct? I will seek your guidance on that.
The PRESIDENT —Certainly leave it until we are dealing with Joint House, but as far as I know that has been a matter that the Speaker has in hand, because it occurred in his chamber and he is the one who has indicated—
Senator FAULKNER —But the issues about the background to this occurring seem to me to be more appropriately dealt with in the Joint House Department. I do not know whether the Speaker has these things in hand or not. I have no idea what the Speaker has in hand, and obviously the Speaker will not be before us and able to be held accountable for his actions. We do not have that advantage. We have four of the five parliamentary departments and our questioning has to be directed to them.
Ms Griffiths —I can certainly try to answer some on the filming, but you will have to ask the security staff too if you want to ask specific questions as to how the camera crew got in.
Senator FAULKNER —I think the sensible thing for us to do is this. If you would make yourself available, Ms Griffiths, we will deal with it, with your additional and helpful input, at that time if that suits the committee. I think that might be the sensible way of dealing with those issues and a range of security and staffing issues in relation to the presidential visits that I will also deal with through Joint House. I think that might save time, Mr Chairman.
CHAIR —Thank you, Senator Faulkner, yes.
Senator FAULKNER —For the purposes of general questions to the Senate, can I flag that I do want to ask some other questions in other areas. I will revisit all these issues when we come to Joint House. I think that will save the committee time.
CHAIR —The committee now calls Senator Murray.
—The first point I want to make is just to remark for the record that the Democrats did indeed put up a motion that the meeting be held in the Great Hall—to specifically avoid these constitutional issues. That is for the record. Just to wrap up some of the earlier discourse on the arguable constitutionality of the joint meeting, Mr Evans, the unfolding of the events, as I understand your responses, did lay both houses open to the danger on that Thursday night—a danger which did not emerge—of an injunction to set aside the exclusion of the Greens from the Friday meeting being sought from the High Court by the Greens if they had chosen to do so. It would have been an arguable case, would it not?
Mr Evans —Yes, arguable, certainly.
Senator MURRAY —That would have created quite a difficult situation, I would have thought, on the following Friday, if such an injunction had been successful.
Mr Evans —It would indeed.
Senator MURRAY —I want to move to the area of guests and media guests for these joint or simultaneous meetings. Last Thursday, in the media section of the Australian, Matt Price gave a full accounting of circumstances relating to the presence of guests and Australian media at that joint meeting. Just to start with, could you give us your synopsis of what you understood to have happened.
Mr Evans —My understanding of what happened only comes to me second-hand. I have no direct knowledge of what happened. I did hear about disgruntlement in the press gallery because they were excluded from doing certain things and then discovered that foreign media were allowed to do the very things that they were excluded from. Apart from hearing that—
Senator MURRAY —You can understand why they would be upset, can't you?
Mr Evans —Yes. It is the sort of thing that would upset them. But apart from hearing that, I did not have any direct knowledge of what had actually happened.
Senator MURRAY —Were you or your officers—
Senator FAULKNER —Sorry to interrupt, but these matters—complaints and so forth—also would surely be ordinarily dealt with by another parliamentary department, wouldn't they—not the Department of the Senate?
Mr Evans —No. If it were a meeting of the Senate, involving access by the press to a meeting of the Senate, it would normally come to the Department of the Senate and the President. But, as we have discussed this morning, this was not a normal meeting of the Senate.
Senator MURRAY —Were you or your officers ever consulted as to what the procedures or arrangements were to be for the access of the Australian media to that simultaneous meeting of the House and the Senate?
Mr Evans —I was not consulted.
Ms Griffiths —I was.
Senator MURRAY —Could you give us an outline of what happened?
—From what I can recall, the press gallery of the House of Representatives chamber was set aside for members of the Australian press gallery, and members of the foreign press gallery were going to be in a glazed gallery upstairs. Under the normal arrangements, all television stations have to use the feed from the in-house monitoring system. They are able to rebroadcast the proceedings and they get the filming from DPRS. There were arrangements for a certain number of still photographers to be in the galleries—from the Australian and US press. Then a camera got in from the American contingent. That is where that film was taken that should not have been.
Senator MURRAY —Let us just go back a step. These normal arrangements that you refer to—are those set by the standing orders of the House of Representatives or by presiding officers' determinations?
Ms Griffiths —They are actually determinations from the joint broadcasting committee on parliamentary proceedings.
Senator MURRAY —What about the arrangements as to the Australian media's presence in the gallery, their right of access, their numbers, their placement and all those sorts of issues?
Ms Griffiths —I am not sure of the seating capacity in the House of Representatives press gallery, but certainly there were more press than there were seats. I think the press gallery committee got the names of those press people that would be attending and they were issued with a special pass to get in.
Senator MURRAY —But how are those arrangements determined? Are they determined separately on each separate occasion? Are there protocols or procedures that are laid out in advance by the joint committee or by the presiding officers? Is there anything in the House of Representatives standing orders which determines these matters?
Ms Griffiths —In relation to the seating in the galleries or the filming of the proceedings?
Senator MURRAY —At this stage I am not concerned with the filming. The nub of Matt Price's article for which I am personally very grateful—because, as a parliamentarian, I was not aware, and nor can I find anybody else who was—was the appalling way in which our media were treated. I am concerned with what protocols, procedures, precedents or conventions there are whereby these matters are determined.
Mr Evans —Do you mean in relation to normal sittings as distinct from these special sittings?
Senator MURRAY —I mean in relation to both. What I want to know is this. Firstly, with regard to the House of Representatives standing orders, are there provisions therein. Secondly, is it at the discretion of the presiding officer? Thirdly, is it determined by this joint committee or does that only have regard to that actual broadcast?
Mr Evans —The broadcasting committee only deals with broadcasting. Access to the press gallery is a matter for each house to regulate. So far as the Senate is concerned, there are no rules specified by the Senate itself in relation to that. Basically it is dealt with by the President on behalf of the Senate.
—And, just for the record, if the President makes determinations, those are advised to the Senate by what method?
Mr Evans —I do not know that they are advised to the Senate at all, normally speaking. Any direction that the President gives about access by the media to the proceedings of the Senate would of course be subject to any direction by the Senate itself. But as far as the Senate itself is concerned, access by the media is simply dealt with on an ad hoc basis and any questions arising which needed to be determined would be determined by the President in consultation with the press gallery.
Senator MURRAY —As far as you are aware, Mr Evans, was Mr Price accurate—and this is my encapsulation of what he said—in asserting that the Australian media were subordinated to the wishes of the Americans and the American media with respect to President Bush's visit, that senior renowned journalists had great difficulty in getting access to and taking their seats as previously arranged, and that the arrangements turned out to be thoroughly unsatisfactory from the perspective of the press gallery?
Mr Evans —As I said before, I have no direct knowledge of that at all so I am not able to confirm—
Senator MURRAY —Because you received no formal complaint?
Mr Evans —That is correct.
Senator MURRAY —And you, Ms Griffiths?
Ms Griffiths —Yes, I only heard about it from what I read.
Senator MURRAY —And Mr President, what are you aware of? Have you had any informal or formal complaint made to you by—
The PRESIDENT —No, Senator. I have not had any complaints either formally or informally. My understanding is that the PM&C liaised with the foreign press gallery, but that is as far as it goes. So it is a matter really for their chamber.
Senator MURRAY —So you were never consulted as the President of the Senate of the simultaneous meeting of both houses? You were never consulted as to how the media would be placed or what arrangements were to be made for them?
The PRESIDENT —No, and I have not had any complaints then or since.
Senator MURRAY —Are you aware of Matt Price's article?
The PRESIDENT —No, I am not. I have not read it.
Senator MURRAY —It was quite alarming, I thought.
The PRESIDENT —I understand that the gallery have written to the Speaker about the arrangements that were made for the media and obviously they have sent their complaints or otherwise to the Speaker.
Senator MURRAY —Why would the gallery write to the Speaker, if it was a simultaneous meeting, and not either copy you or write to you as well?
—I guess they presumed that, because it was in the House of Representatives, the Speaker was in charge, which I understood he was, given the resolutions of the Senate.
Senator FAULKNER —Wouldn't it be better not to guess? The truth is you do not know and no-one could expect you to know why they did it. How would you know why the press gallery wrote to the Speaker?
The PRESIDENT —They wrote to the Speaker; they did not write to me.
Senator MURRAY —I think the President is competent enough to answer his own questions, Senator Faulkner. Is it true that the senators put a resolution to inquire into the broad ambit of these visits?
Mr Evans —There are two references to the Privileges Committee, one in relation to each of the visits, and then there is a resolution referring matters to the Procedures Committee relating to rules for these joint meetings, if there are any future joint meetings.
Senator MURRAY —Will those inquiries—I think you are the secretary of one of those committees, aren't you—
Mr Evans —The Procedures Committee, not the Privileges Committee.
Senator MURRAY —Will those inquiries automatically pick up the issues I am referring to relating to the placement and availability of places for the media and guests, or would that have to be a specific reference?
Mr Evans —The reference to the Senate Privileges Committee in relation to the Bush visit has a phrase specifically referring to restrictions placed on the local media which were not placed on foreign media.
Senator MURRAY —To your knowledge, was any complaint of this nature made to either the Speaker or the President in relation to the previous three simultaneous meetings?
Mr Evans —About media access?
Senator MURRAY —Yes.
Mr Evans —Not that I am aware of.
Senator MURRAY —Not a formal complaint?
Mr Evans —Not that I am aware of.
Senator MURRAY —Is anyone at the table aware of whether the instructions as to how the media were to be dealt with emanated from the executive?
Mr Evans —Ms Griffiths might be able to add something on that point.
Ms Griffiths —Ceremonial and protocol did have a media liaison adviser who was responsible for liaising with the foreign press and negotiating what rules would apply for that day.
Senator MURRAY —Have you read Matt Price's article?
Ms Griffiths —I think I have.
—Is the person you refer to the same person he describes as rather inept and wishy-washy? Those are my words; I do not think they are exactly his.
Ms Griffiths —Yes.
Senator MURRAY —I think that is a reasonably accurate translation of his views. It seems to me—correct me if I am wrong—that effectively you and your office did not regard it as part of your function to really concern yourselves with arrangements regarding guests or media; you were merely there in a kind of policing role. Is that correct?
Ms Griffiths —Yes, that is correct.
Senator MURRAY —So the Senate officers and committees and those who were consulted—and I include you in the question, Mr President—really had very little to do with or to say on the matter of the protocols and procedures for media and guests?
Mr Evans —If we had been asked we probably would have had plenty to say about it but, as the President said, because it is in the House of Representatives chamber the Speaker runs the show.
Senator MURRAY —But Mr Evans you are not known as a shrinking violet. On the question of joint meetings or simultaneous meetings your views have in the past and today been quite forceful. Did you think to raise the possibility that these matters might not be being dealt with effectively?
Mr Evans —I think I proceeded on the assumption that media access would be arranged on a rational and fair basis. I was not aware that there were these problems until after the event.
Senator MURRAY —You would have assumed that the Australian media should not be subordinated to foreign media, wouldn't you?
Mr Evans —I assumed, perhaps irrationally, that it would all be arranged on some rational basis agreeable to all parties, which is the way it is normally done.
Senator MURRAY —In previous meetings have the Australian media had precedence over foreign media for best seats, first coverage and that sort of thing, or is it regarded as an equal status thing, or what?
Mr Evans —To answer that question I think we would need to go back to whatever written information there is about those other joint meetings that took place.
Senator MURRAY —There is unlikely to be any.
Mr Evans —I am not readily aware of it.
Ms Griffiths —Certainly not on the previous visit.
Senator MURRAY —You both have considerable experience. In your experience of the parliament, is this a very unusual occurrence?
Mr Evans —I am saying that I do not know. I think Ms Griffiths is saying that the same precedence was not given to the foreign media in the past visits.
Ms Griffiths —No, I am saying there is nothing on file, certainly with regard to the Clinton visit, which indicates to me what the rules relating to the media were.
—This is not a hypothetical, but it might be seen in that respect so I will qualify it as I go. If the Senate were to devise standing orders which required that the Australian national media and guests were to be treated in a certain way—I am not envisaging the nature of those standing orders—at a joint or simultaneous meeting and the House did not have the same standing orders, what is the consequence of that?
Mr Evans —That would have added to the difficulty of the proceedings that we discussed before. Some people would say, `The resolution said the procedures of the House of Representatives apply to the joint meeting so far as they are applicable.' That would include any procedures that the House of Representatives had about media access, and that would in effect set aside any procedures that the Senate had. It would be an additional arguable point about the nature of the whole thing. The Senate could make rules about access by the media to the Senate's proceedings. If they had such rules, I would argue that they would not be set aside by the expression `the procedures of the House of Representatives apply so far as they are applicable' but that would simply add to the difficulty of the occasion.
Senator MURRAY —So, in summary, it is best that these matters are set by agreement of both houses prior to these events?
Mr Evans —If there are going to be any further joint meetings, yes.
Senator MURRAY —Is it open to the Senate committees, therefore, to invite the House of Representatives to appear before the Senate committees to consider these matters since they do concern joint meetings?
Mr Evans —I do not believe so. They could not do that unless explicitly authorised by the Senate.
Senator MURRAY —So, as a Senate, how do we get to a situation of being able to resolve these matters jointly?
Mr Evans —The Procedure Committee does have this general reference about the rules that should apply to any joint meetings in future. Media access could fall under the heading of rules that should apply to them. So that is an avenue for the matter to be considered.
Senator MURRAY —The Senate can delegate that responsibility for resolving these things to a joint body?
Mr Evans —That is another one of those difficult questions. As a first step, the Procedure Committee could recommend that there ought to be rules about media access, and could recommend a process by which they could be agreed upon between the two houses.
Senator BRANDIS —It seems to me there is one other way around this which is perfectly simple, although it may offend the amour-propre of the Senate—that is, if there are going to be any more of these addresses, the foreign head of state could be invited to address a meeting of the House of Representatives and the senators could be invited to attend as a matter of courtesy. So, in substance, it is a joint meeting but technically it is a meeting of the House of Representatives. If that were to occur, none of these issues would arise.
—That is one of the solutions that I suggested back in 1991. The first solution I suggested was simply a gathering of senators and members in the Great Hall or somewhere, not a formal meeting of the two houses. It would be a meeting in effect controlled by the Presiding Officers, which therefore would not give rise to all these problems. One of the other solutions I suggested was the very thing that Senator Brandis has now suggested: that, in effect, the senators would be simply attending in the Senators' gallery of the House of Representatives chamber, while the House of Representatives had a meeting. Interestingly enough, that is how senators attended the famous secret joint meeting during the Second World War, when the House of Representatives was briefed on developments in the war. As I understand it from my reading of it, the senators were simply invited to attend a meeting of the House of Representatives where they received that briefing. It was not a sitting of the Senate. That was certainly one of the suggestions that I suggested back in 1991 but we were told, `No, it had to be a formal sitting of the Senate.'
Senator BRANDIS —If that method were adopted, there would be no controversy, would there, about the exercise by the Speaker of the House of Representatives of a disciplinary power over a senator disrupting proceedings, because the senator would be, for those purposes, merely a stranger?
Mr Evans —Merely guests of the House of Representatives, exactly.
Senator BRANDIS —Mr Evans, just to complete the point, we were talking before about joint sittings, and I think we had agreed that section 57 of the Constitution is the only constitutional basis for a joint sitting. Wasn't it the position, though, for about three years after the territorial senators legislation was enacted but before the casual vacancies amendment was made in 1977, that casual vacancies for territory senators were filled by a joint sitting or some form of joint meeting of the Senate and the House of Representatives?
Mr Evans —Before the territories had self-government in effect and had a self-governing legislature which could make the appointment, yes, the two federal houses met to fill the vacancy. The same difficult questions arose in relation to those gatherings, although they were under statute and not under resolution. But there were plenty of people who were willing to tell you that the statute was not constitutional.
Senator BRANDIS —But that was never challenged, was it?
Mr Evans —No.
Senator BRANDIS —So we will never know?
Mr Evans —No.
CHAIR —There was a joint meeting, wasn't there?
Mr Evans —Indeed, yes.
Senator BRANDIS —There was just one, wasn't there?
Mr Evans —I attended one—a very disorderly one, too, I might say. I should note that it was disorder created by members of the House of Representatives.
Senator BRANDIS —Hear, hear, Mr Evans!
CHAIR —Senator Brown?
Senator BROWN —President, can you tell the committee at what stages during Thursday the 23rd and Friday the 24th that you consulted with the Clerk about events and took advice?
—Consulted with the Clerk?
Senator BROWN —Asked for the Clerk's advice about events.
The PRESIDENT —I did not.
Senator BROWN —Why not?
The PRESIDENT —It did not seem necessary.
Senator BROWN —But surely it did. There was a sitting of the Senate in progress on both days and events that we are all aware of were taking place but you did not think it was warranted to get your Clerk's advice on the matter?
The PRESIDENT —That is presuming that I had any doubts about what had happened and I did not at the time.
Senator BROWN —Can you tell the committee: was this a joint house sitting or meeting? If it was a meeting, what is your deliberation on that? What is your definition of what that meeting was?
The PRESIDENT —I have said on more than one occasion today that I believed on the Thursday and the Friday that we were sitting under the standing orders of the House of Representatives that had been agreed to by the Senate and the House of Representatives.
Senator BROWN —Did that mean that the Senate was sitting as a separate body within that joint arrangement?
The PRESIDENT —I think that matter has already been discussed today.
Senator BROWN —Well, I am asking you—
The PRESIDENT —It is open to question. As I said, my belief all the way through was that, because of the resolution of the Senate that was passed prior to those two meetings and the fact that the Speaker was chairman of those meetings, we were conducting those proceedings under the standing orders of the House of Representatives.
Senator BROWN —`So far as they are applicable'—those are the words contained in the resolution of the Senate.
The PRESIDENT —Yes.
Senator BROWN —What does that mean?
The PRESIDENT —I will take that on notice, if you like, and get a long, detailed answer for you. As far as I am concerned, I have already answered that question.
Senator BROWN —No, I don't want you to take it on notice because you determined you did not need advice from the Clerk, so you had made a determination there. I am asking you, President: what did it mean when it said that the rules of the House of Representatives `shall apply to the meeting so far as they are applicable'?
The PRESIDENT —`So far as they are applicable' meant that, if there were disruptions to the Senate, the Speaker had the power to take the appropriate action under the standing orders of the House of Representatives.
Senator BROWN —But it does not say that, does it?
—It says `as applicable'.
Senator BROWN —This motion gives the Speaker no powers. It outlines no powers for the Speaker of another place over senators. It says that there will be a joint meeting of the two houses and that the House rules shall apply as far as they are applicable. Did you consider that `as far as they are applicable' did not extend to the Speaker of another place having jurisdiction over senators?
The PRESIDENT —I assumed that they were applicable to the correct conduct of the chamber at the joint sitting. After all is said and done, the Speaker was in the chair—I was not—and he took the appropriate action.
Senator BROWN —You took the authority of the Speaker and the advice of the Speaker—you have told the committee that on a number of occasions—but you did not take advice from the Clerk on those same matters?
The PRESIDENT —The Clerk did not give me any advice and I did not ask for any because I presumed that the decisions made by the Senate and the House of Representatives on the conduct of both those sittings had been decided.
Senator BROWN —Isn't it therefore open to be assumed that, without getting the advice you should have got, you transferred your authority to the Speaker of the House and put the Senate into the situation where the Speaker, who is a nominee of the government, would make decisions over the Senate? You did not know where the dividing line was—where the rules were not applicable in that situation?
The PRESIDENT —As I said, the Senate made a decision to give the Speaker authority to chair those meetings and also to apply the standing orders where applicable. I believe that that is what the Speaker did.
Senator BROWN —I will not labour the point, but the point is that you did not know where they were applicable and where they were not applicable. And you cannot give this committee any—
The PRESIDENT —As we have heard here this morning, nobody seems to know.
Senator BROWN —Should you not have made it your business to find out?
The PRESIDENT —I was not aware of that until those legal questions were raised this morning. The Clerk has already indicated that there is a wide divergence of views on joint meetings or joint sittings.
Senator BROWN —President, you signed a letter to the Usher of the Black Rod called `security directive', which we have had given to us this morning. The letter begins:
You are aware that the House of Representatives and the Senate voted this morning to exclude Senators Brown and Nettle ...
Did the Senate make a vote to exclude Senators Brown and Nettle?
The PRESIDENT —No, the Senate did not. I believe the joint meeting of the Senate and the House of Representatives, under the standing orders of the House of Representatives, did.
—We have established that there was a meeting of the Senate and there was another meeting coming up the next morning for the visit of President Hu. Two senators were excluded from that meeting of the Senate the following morning even though there had not been a vote by the Senate to have them excluded—as you have just said.
The PRESIDENT —That is your version of events.
Senator BROWN —Had there been a vote of the Senate? You have just said there was not—that is the case, isn't it?
The PRESIDENT —There was a vote of the joint meeting—and my recollection is that the Speaker called it unanimous—and he instructed the suspension of the two Greens senators for 24 hours.
Senator BROWN —We have established that there was not a vote of the Senate. It is another matter that there was a call for a division, within that joint meeting, which was ignored by the Speaker. That division was not taken. Seeing you were advocating that the House of Representatives rules applied pretty widely, can you tell the committee where, in the House rules, it says that if a senator—or a member, for that matter—is asked to leave the House, that member must do so? Could you quote that standing order?
The PRESIDENT —I do not have it in front of me.
Senator BROWN —Would you like to find that standing order and furnish it to the committee?
The PRESIDENT —I can take that on notice.
Senator BROWN —Thank you. Then it says that there is provision in the House standing orders for a vote. We know about that vote taking place. President, the motion passed by the Senate says in 1(b):
... the only proceedings shall be welcoming remarks by the Prime Minister and the Leader of the Opposition and an address by the President of the United States of America, after which the Speaker shall forthwith adjourn the House and declare the meeting concluded ...
Did that happen?
The PRESIDENT —No it did not, because you and I both know that there was a motion passed to exclude senators.
Senator BROWN —But the vote of the Senate said that that should happen—that `forthwith' after the President's speech was adjourned the meeting would be concluded. That did not happen. Is that not a breach of the Senate motion and indeed the House motion outlining the conduct of that meeting?
The PRESIDENT —The decision of both places was that the chairman of the joint meeting would be Speaker. My understanding is that the Speaker used his authority in proper conduct of a meeting to carry that meeting out.
Senator BROWN —Section 4 of the motion moved by both houses says:
... the foregoing provisions of this resolution—
including that there shall be an immediate adjournment with nothing else taking place—
so far as they are inconsistent with the standing and sessional orders, have effect notwithstanding anything contained in the standing and sessional orders ...
Did not the Speaker breach the motion by the House and did you not effectively agree with that breach which took place in the Senate?
The PRESIDENT —How could I agree with it if I was not chairing the meeting?
Senator FAULKNER —On a similar issue to the one Senator Brown is questioning you on—and I raised this in the Senate chamber during one of the reference resolutions that we had last week—who determined that we would have prayers? Prayers are not provided for in either the House or the Senate resolutions. I am not critical of that fact; we start Senate and House proceedings with prayers. It was sensible for us to do that in a joint meeting in those circumstances but prayers were not allowed for in the provisions of the orders of both chambers. Mr Clerk, would you agree that, on the basis of the motions that were agreed to in the chambers, this seems an anomaly? Am I right to draw that conclusion?
Mr Evans —Yes, in so far as the resolutions say that the only business transacted shall be the addresses.
Senator FAULKNER —Mr President, can you shed any light on this?
The PRESIDENT —As I have said on numerous occasions this morning, I presumed the standing orders and the procedures of the House of Representatives would be binding. I suppose you could say the same thing about the fact that there was nothing specific in the arrangements for the day on how to cope with people interjecting and disrupting the meeting.
Senator FAULKNER —That is the point Senator Brown is making. I am taking it back a step and asking about prayers. The incidents that Senator Brown is talking about are controversial. I do not think the fact that there were prayers said at the commencement of the joint meeting is controversial. But the point is it is not provided for in the joint order that was agreed to by both houses.
The PRESIDENT —It is something the Speaker and I did not discuss.
Senator FAULKNER —You are not aware of how that happened?
The PRESIDENT —No, I am not aware of how it happened.
Senator FAULKNER —But you see the inconsistency here.
The PRESIDENT —Yes, but the Speaker—
Senator FAULKNER —The Speaker just did it.
The PRESIDENT —presumably started off the meeting like he would any other.
Senator FAULKNER —So he just did it.
The PRESIDENT —Yes.
Senator FAULKNER —Is that a problem for the Senate, if the Speaker just decides to—
The PRESIDENT —It was not for me. We start our—
—Yes, I know we do, and I am not critical of that at all. It is just that I was very surprised when we commenced with prayers. I am used to it in the Senate, and colleagues are obviously used to in the House of Representatives. I do not have any objection to that, or any criticism of it. It is just that it was not allowed for in what we agreed to—which, in some sense, is a similar issue to the one that Senator Brown is raising: nor were there provisions to do a range of other things. How can this happen?
The PRESIDENT —It was something that was not discussed and it is obviously something that should be considered by the Procedure Committee when they are looking at the other matters.
Senator FAULKNER —Yes. But the difference here, as I think you probably would agree, Mr President, is: the fact that prayers were said is not controversial; the fact that, first of all, senators were called to order and subsequently named and then excluded from a subsequent joint meeting is controversial. So of course as we look at these issues I suspect we need to be consistent with all matters in relation to the resolutions that established the joint meeting in both chambers. It seems to me, on the issue that Senator Brown is canvassing with you, that it is as strong to effectively go to a matter that was not provided for in the resolutions that is not controversial as much as something that was not provided for and is.
Senator BROWN —Yes. The point that I am making and have put to you, Mr President, is that the Speaker broke the rules of the resolution passed by both the House and the Senate by not concluding the sitting after the address had been given. We have established that the Senate was sitting separately, but I want to go back to the letter that you sent, jointly with Speaker Andrew, to the Usher of the Black Rod.
Senator MURRAY —I am sorry, Senator Brown, but before we leave that can we just establish once and for all whether a vote of the Senate took place. As far as I am concerned I was not asked for my vote, neither did I give my vote. I just think that should be clarified. Mr Evans, did a vote of the Senate take place to exclude Senator Brown and Senator Nettle?
Mr Evans —The Speaker named the two—this was at the end of the meeting on Thursday, or what should have been the end of the meeting on Thursday. The Speaker named the two senators as having committed an offence, called on the Leader of the House of Representatives, Mr Abbott, to move a motion for their suspension, then put the question on that motion in the normal fashion and declared it carried on the voices.
Senator MURRAY —By the House of Representatives.
Mr Evans —I think he did that on the basis that members of the House of Representatives and senators were voting together on that question.
Senator MURRAY —But it cannot be so, because the Senate standing orders specifically state that if people are contrary to that view they can say so and call a division. There were two voices that called for a division. I heard them; they were in front of me. That did not occur. Therefore a vote of the Senate could not have occurred because the division was not taken.
Mr Evans —The first question is: is it competent for senators and members to be voting together on a question like that in any case? That is what we discussed this morning. The clever answer to Senator Murray's point is that under the rules of the House of Representatives, which were applying to this meeting, you need five voices to call for a division. But then some people who were in the vicinity say that there were more than five.
Senator BROWN —I think there were a good many more, in effect.
—They say that there were more than five people calling for a division anyway and that the Speaker ignored the calls for a division. So the whole thing is very problematic from start to finish.
Senator MURRAY —I do accept that there was a House of Representatives vote. I accept that that occurred under their rules. I cannot accept for myself, I must put it on record, that there was a vote of the Senate with regard to this matter.
Senator BROWN —The President has said that there was not a vote of the Senate.
Senator BRANDIS —On that point, you have told us earlier this morning, Mr Evans, that in your view this certainly was not a joint sitting and you do not favour the view that it was even a joint meeting. The expression that you have adopted is that it was a simultaneous meeting of the Senate and the House of Representatives. I hope I am putting your position correctly.
Mr Evans —Yes.
Senator BRANDIS —To the extent to which it was a meeting of the Senate, who was the Presiding Officer?
Mr Evans —That is one of the difficult questions that these meetings give rise to. The rules say that the Speaker presides over this meeting, but how can the Speaker be presiding over a meeting of the Senate? That is one of the very difficult questions that arises.
Senator BRANDIS —That is my point. The Speaker cannot preside over a meeting of the Senate and, obviously, he cannot because only a senator can. And if it was neither a joint sitting nor a joint meeting, perhaps it was not a meeting of the Senate at all because, to the extent to which it might have been a meeting of the Senate, it was not properly constituted because there was no senator presiding over the meeting of the Senate. If that is right, perhaps all it was was a meeting of the House of Representatives simultaneously with a purported but in fact legally invalid meeting of the Senate.
Mr Evans —That is a view that you could argue. If that is the case then—
Senator BRANDIS —What do you think of that view?
Mr Evans —If that is the case then it is the Senate which has decided to hold this invalid meeting of the Senate.
Senator BRANDIS —If it were an invalid meeting of the Senate—in other words it was not a meeting of the Senate, it was just a meeting of the House of Representatives—once again the Speaker in disciplining a senator was doing nothing other than exercising the power in relation, in effect, to strangers that the Speaker of the House of Representatives undoubtedly has at meetings of the House of Representatives.
Mr Evans —That is the sort of ingenious argument designed to get the Crown out of trouble!
Senator BRANDIS —It might be an ingenious argument, Mr Evans, but it might also be right.
—The contrary argument is that this was a meeting of the Senate because the Senate had said it was a meeting of the Senate. Therefore, the Speaker had no power to make any directions in relation to a meeting of the Senate and the members of the Senate and the House of Representatives had no power to vote to exclude senators from a meeting of the Senate.
Senator BRANDIS —How can there have been a meeting of the Senate if there were no senator presiding?
Mr Evans —As I have said this is one of the many difficulties that arise in relation to this.
Senator MURRAY —My question to Mr Evans is simply this: whether you were to accept Senator Brandis's proposition or you were to accept your proposition that it was a meeting of the Senate, under either of those scenarios a vote of the Senate did not occur.
Mr Evans —Indeed. A vote of the Senate could not have occurred if there were no meeting of the Senate.
Senator MURRAY —And a vote of the Senate did not occur on the simultaneous meeting because our votes require standing orders to be observed and two voices to allow a division to be carried out. The division was not carried out, and I put it on the record that I was not asked for my vote and neither did I give my vote.
Mr Evans —But then if there was no meeting of the Senate there was no reason why you should have been asked to vote. You could not vote, in fact.
Senator BRANDIS —That is right; as you say, if there was no meeting of the Senate and only a meeting of the House of Representatives, this was merely the case of the House of Representatives exercising its disciplinary power over strangers.
Senator FAULKNER —If I had a white flag I would just wave it!
Mr Evans —I go back to the point that this is one of the many difficult questions that arise in relation to these strange gatherings that we have had four of. My point, going back to 1991, is: let us not give rise to difficult questions by creating the circumstances in which they do arise.
CHAIR —How does the song go Senator Faulkner? There will be no white flag raised above my head.
Senator FAULKNER —That is the best I can do. Let's get on with it.
Senator BROWN —I would agree with that point that there should be no such meetings without the parliament separately and together determining the rules and the constitutionality of them. But I want to move on to the President's statement that the letter to the Usher of the Black Rod and to the Serjeant-at-Arms, which came jointly from you and the Speaker, after the Thursday morning meeting, contained the words:
We hereby authorise you and officers under your direction to take appropriate measures, including in the event that it is necessary, preventative force, to enforce the suspension—
of Senator Nettle and me. You said that the original words were a little bit stronger. What were they?
The PRESIDENT —They were stronger.
Senator BROWN —What were the words?
—I do not have them in front of me. I do not remember actually.
Senator BROWN —Can you get them for the committee?
The PRESIDENT —I do not know. That is something I will think about. Does it really matter?
Senator BROWN —Yes, it does.
The PRESIDENT —Why?
Senator BROWN —Because we are trying to establish the way in which extremely important decisions are made about whether or not elected members of parliament can take part in a meeting with other elected members of parliament. It is very important to determine how those decisions were made. I would ask you to—
The PRESIDENT —The reason that letter was jointly signed was that the Speaker of the House of Representatives wanted the security attendants to know that, if they had to stop either senator entering the House of Representatives under his instructions, they had written authority. I became involved because the security staff operate under joint authority of the presiding officers.
Senator BROWN —I am asking you again whether you will furnish the committee with the original words.
The PRESIDENT —I will see if I can find a copy of the original draft that was sent to me, but I do not know whether that is available. I will see.
Senator FAULKNER —You say `sent' to you. I thought there were meetings about this.
The PRESIDENT —It was something that came to me as a suggested draft for approval. I do not really recall the word-by-word description, but my adviser and I were not happy about it and we sent back different wording.
Senator FAULKNER —But prior to that there was an agreement between you and the Speaker that there would be a joint letter or a joint security directive, I assume.
The PRESIDENT —Yes.
Senator FAULKNER —And was that done in a face-to-face discussion or by telephone?
The PRESIDENT —If I recall correctly, it was done over the phone. But, when we received the letter for approval, we were not happy with it and we sent it back with changed wording. Then it was agreed on the wording. But I do not know whether a copy of that draft that was sent to me exists.
Senator FAULKNER —You did not run the draft past the Clerk?
The PRESIDENT —No.
Senator BROWN —That brings me to the next point. Did you consult anybody about the jostle that took place at the back of the chamber after President Bush's address to get advice as to whether or not senators had been unfairly treated in that circumstance?
—I saw photos and some illegal broadcasting of that incident, but that matter is a matter for the Speaker because it was in the House of Representatives and the Speaker was the presiding officer in charge of the proceedings.
Senator BROWN —What you are saying here is that really, although there was a sitting of the Senate taking place, and its aftermath, in all matters you acceded to the decisions of the Speaker?
The PRESIDENT —That was a decision of the Senate, surely.
Senator BROWN —I do not think so. The Senate said `as far as the rules are applicable'. If you read again—and I trust you will—the motion of the Senate, it does not do that at all. I would have thought that you, as President of the Senate, would have been very keen to defend the interests of the Senate at all times and to make sure that those interests were being upheld, including by getting advice from your senior advisers. But what we have here is effectively you simply becoming subservient to the Speaker under those circumstances, and therefore to the executive. That is the process as it unfolds here unless you can tell me to the contrary. I would like to know what you say about that.
The PRESIDENT —The matter of disturbance in the House of Representatives chamber, I believe, is under investigation and as far as I am concerned I will see what happens with it.
Senator BROWN —But you are not investigating that even though you are the Presiding Officer for the Senate and that was a Senate meeting?
The PRESIDENT —How many investigations do you need? It is being investigated, as is the illegal use of a camera, and when those reports become available that is something that the Speaker and I will discuss.
Senator BROWN —What is your comment on the fact that the Usher of the Black Rod has told us that the order to use physical restraint or preventative force as necessary was not transmitted in a way in which it applied to Senate officers?
The PRESIDENT —You mean the Clerk's advice to the Black Rod? I was not aware of it.
Senator FAULKNER —Were you clear, Mr President, what was acceptable and what was not acceptable in relation to what attendants—not Senate attendants but other attendants—might do? Is it clear? In other words, what is preventative force? How do you define it?
The PRESIDENT —If the Speaker has given instructions on the decision of the joint meeting that his decision as chair of the meeting was that the two senators were banned from the chamber for 24 hours, that decision has to be upheld.
Senator FAULKNER —But you have signed a letter that has gone out as a security directive. The Clerk of the Senate, Mr Evans, has given different instructions to Senate chamber attendants—
The PRESIDENT —I was not aware of that, Senator.
Senator FAULKNER —You were not aware of it until I asked these questions today?
The PRESIDENT —I was not aware of it until you asked that question this morning, no.
Senator FAULKNER —You are aware of it now.
Senator FAULKNER —You now know that the Clerk of the Senate—because of questioning at this estimates committee—in fact issued a separate directive to Senate chamber staff. But you are a signatory to this letter and I think the key issue here is: does anything go? What is preventative force? When you signed this letter what did this mean? What were you authorising Parliament House staff to do? What were they entitled to do to stop these senators going into the chamber? Could they shoot them or could they just punch them? Could they physically block them? Could they tackle them? What is preventative force?
The PRESIDENT —My view was to stop senators bursting into the chamber and embarrassing the President of China who was speaking to a joint meeting. Given the performance the day before, as a Presiding Officer I was keen to ensure that the guest of parliament was treated in the appropriate manner and not embarrassed like the President of the United States. That was my reason for signing that letter.
Senator FAULKNER —I accept that you determined there was a proper reason to sign the letter. I accept that. I assume that neither you nor anyone else would sign a letter unless you thought it was justified. So I accept that you thought it was justified. I am not questioning that. I am asking you what it means. You have signed a letter that says:
We hereby authorise you—
—`you' being the Serjeant-at-Arms and the Usher of the Black Rod, but they have passed it on to every security attendant in the building except Senate chamber attendants, so let us be clear who we are talking about—
and officers under your direction to take appropriate measures, including in the event that it is necessary, preventative force, to enforce the suspension.
It is another issue as to whether that is appropriate or not. There have been a lot of questions asked here about other matters. My question goes to what that means. You must have had in your mind, signing such a letter, what was acceptable and what `preventative force' was. How on earth are these attendants supposed to know what it means?
The PRESIDENT —I believe that they would understand that if they were barring the entrance of people who, by resolution of the meeting, were not to attend they could not push their way through.
Senator FAULKNER —What do you understand they could do to the senators concerned?
The PRESIDENT —Preventing them in this particular case—
Senator FAULKNER —How?
Senator BRANDIS —Mr Chairman, I raise a point of order. Honestly, those questions are completely unfair to the President. He is being asked to characterise the meaning of language in a letter for events that never occurred.
Senator FAULKNER —The President signed this letter.
Senator BRANDIS —Yes, and he is being asked to characterise that language in light of events that never occurred.
—What does it mean? People were authorised to take a certain course of action. Senator Brandis, you have had three-quarters of an hour to ask very interesting hypothetical questions.
Senator BRANDIS —No more hypothetical than asking what would have happened if—
CHAIR —Order, Senator Brandis! Senator Faulkner, you have the call.
Senator FAULKNER —Thank you very much. I think it is important for us to understand what this means, given that Mr President is one of two signatories to a letter, and also given the fact that the Usher of the Black Rod has provided instructions to certain staff in relation to their behaviour. There are two separate approaches. The Senate chamber staff were instructed by the Usher of the Black Rod not to use preventative force, yet, under the Usher of the Black Rod's name, a letter went out to other members of staff instructing them to use preventative force. We have established that that is the situation, Mr President. What I am doing is trying to also establish whether you can tell us what `preventative force' means and if those to whom the security directive was sent—who were asked to use preventative force—understood what it meant.
Senator MURRAY —Mr Chairman, on the point of order: I suggest that the line of questioning be continued for this reason: if the consequence of the letter was that a senator might been assaulted in the criminal sense of the word, then the question will arise as to whether this was an unlawful instruction. That is why it is necessary to understand what is meant. If the word `preventative' was surrounded by appropriate qualifications so that a senator could not be assaulted in the criminal sense of the word, then it might be seen to contribute to the proper order of a meeting. That is why I think the question should be allowed.
Senator BRANDIS —The particular question to which I took objection has been lost in the discussion. My point of order is that it is not fair to the witness, Senator Calvert, who is the co-author of the letter, for him to be asked anything more than what he intended by the use of that expression. Senator Faulkner's questions went beyond that. It is a perfectly fair question to ask: what did you intend by the use of that expression? But, beyond that, it is not fair to Senator Calvert.
CHAIR —I will allow the line of questioning.
Senator FAULKNER —Thank you, Mr Chairman. Now it is over to Senator Calvert to answer it.
The PRESIDENT —As I tried to indicate to you, Senator, in my view it was to try to prevent forceful entry.
Senator FAULKNER —How?
Senator BROWN —I may be able to help. It does not say that. It says `preventative force'—that is, the use of force by the attendants.
The PRESIDENT —What happens if someone tries to force their way through when a security officer has been told to keep someone out? What if someone tries to push their way through or assaults that particular officer?
—Exactly. What would have been—
The PRESIDENT —Surely, they are allowed to try and prevent that happening. What words would you use other than `preventative force'? What is the point of giving the instruction if you cannot use a term to try and stop someone entering the chamber?
Senator FAULKNER —Let us nail this down: are you aware, Mr President, if instructions were given to parliamentary staff about how they might fulfil this security directive? Can someone assist me there? It may need to be someone from Joint House, but let us try to nail it down now. Was any more detail, apart from the security directive, provided to parliamentary staff?
The PRESIDENT —Not that I am aware of.
Senator FAULKNER —Black Rod, can you assist us?
The PRESIDENT —The security controller may have given more detail. Perhaps he can give us those answers during the—
Senator FAULKNER —Can the Black Rod assist us at all?
Ms Griffiths —Mr Crane would have advised all the security supervisors. I was unaware of what was involved in that.
Senator FAULKNER —Mr Chairman, should we deal with this now or wait until we are dealing with Joint House? I do not mind.
CHAIR —I think we should wait until we deal with Joint House, Senator Faulkner.
Senator BROWN —I might help a little by saying that there is no way and no possibility that either Senator Nettle or I would have used physical force under those circumstances. But we were very well aware that we were being prevented from entering a Senate meeting without the authority of the Senate. That is a grave injustice and a wrong, as far as the democratic functioning of this parliament is concerned.
Senator JACINTA COLLINS —Mr Evans, you may have covered this earlier in relation to the instructions on your advice that were provided to Senate security attendants. Was there a basis for the instruction that they not touch a senator?
Mr Evans —That direction was not given to the security attendants; it was given to Senate staff. The security attendants, of course, are not Senate staff.
Senator JACINTA COLLINS —Okay.
Mr Evans —What I said to Ms Griffiths was that no Senate officer is to lay hands on a senator or physically interfere with a senator in any way.
Senator FAULKNER —And you did not see fit, Mr Evans, to tell the President that you had given an order to Senate chamber staff that countermanded a security directive from the President of the Senate?
Mr Evans —I took the Presiding Officers' instruction to be directed to the security staff only.
Senator FAULKNER —But it was directed to the Usher of the Black Rod.
Senator JACINTA COLLINS —Mr Evans, in terms of the advice that you gave to Senate chamber officers, was there a basis for that direction?
Mr Evans —The basis of it, firstly, was that it would be highly undesirable to have Senate officers assaulting a senator; secondly, that the authority for keeping senators out of a meeting of the Senate was extremely dubious, to say the least, and people should not be acting on instructions that were dubious if they could possibly avoid it.
Senator JACINTA COLLINS —Was there a basis in precedents for this?
Mr Evans —No.
Senator JACINTA COLLINS —I seem to recall one incident when there was an attempt to bar me from accessing the chamber with an infant. That was characterised as assault and that might have helped to clarify Senate officer behaviour.
Mr Evans —I am not totally aware of that occasion.
Senator JACINTA COLLINS —This was about eight years ago.
Mr Evans —I hope you weren't physically interfered with, Senator.
Senator JACINTA COLLINS —Not consequent to behaviour from our whip.
Mr Evans —Probably the formal situation was that you were given advice that it was not in order for you to enter the chamber.
Senator JACINTA COLLINS —And that was changed.
Mr Evans —In any case that would have been entirely under the procedures of the Senate and not purported joint decisions of some sort.
Senator FAULKNER —But isn't this embarrassing, Mr Evans, to the Senate that here the President is providing a directive to certain parliamentary staff and you are providing a different directive to Senate chamber staff? The President of the Senate is embarrassed at a Senate estimates committee hearing because he does not even know that you have done it.
Mr Evans —As I said, I interpreted the directions from the Presiding Officers to be directed to the security staff only, and that was a reasonable interpretation, given that they were instructed to stop the senators at the glass walkways and the Senate staff would not be there at that particular geographical location. As Senator Brandis would no doubt say, there was room for the two instructions to operate concurrently without conflict.
Senator FAULKNER —I have no idea what Senator Brandis would say. I do find it hard to predict what Senator Brandis will say from time to time.
Senator JACINTA COLLINS —Harry thinks he is a genius.
Senator FAULKNER —Mr President, is it your understanding that your security directive did not apply to Senate chamber staff?
The PRESIDENT —Absolutely. The joint letter was for the security officers so that they had written authority and not Senate staff—there were only four or five involved, weren't there?
—Just before we leave it, the Senate chamber staff come under the authority of the Usher of the Black Rod, too, don't they? You and the Speaker sent a directive to the Serjeant-at-Arms and the Usher of the Black Rod. You do not say in this directive, `PS: Usher, this doesn't apply to Senate chamber staff'? But you knew it wouldn't?
The PRESIDENT —I found that out since, yes.
Senator FAULKNER —Are the Senate chamber staff officers under the direction of the Usher of the Black Rod?
Ms Griffiths —Yes.
The PRESIDENT —Yes.
Senator FAULKNER —Aren't you in this letter, Mr President, authorising the Usher of the Black Rod and officers under the direction of the Usher of the Black Rod to take appropriate measures, including preventative force? That is what it says.
The PRESIDENT —As I said earlier, it was a letter to give the security staff authority to use preventative force to carry out the decision of the joint meeting.
Senator FAULKNER —Did you at any stage say to any Senate staff, `This security directive does not apply to Senate chamber staff'?
The PRESIDENT —No, I did not.
Senator BRANDIS —Ms Griffiths, if there were to be a direction to you from the President of the Senate and a direction to you on the same matter from the Clerk which you thought could have been inconsistent, what course would you appropriately adopt?
Ms Griffiths —I would consult with the Clerk of the Senate as to my dilemma.
Senator BRANDIS —Between the President and the Clerk, if there were to be an inconsistency, whose instruction would prevail?
Senator MURRAY —Mr Chairman, I raise a point of order. Were you listening to that, Chair?
CHAIR —To be honest, Senator, I was not. I was engaged elsewhere.
Senator MURRAY —Perhaps Senator Brandis could restate the question. My point of order, Chair, is that I think this is highly hypothetical, and I want you to rule on it.
Senator BRANDIS —I will speak to the point of order. It is not hypothetical.
Senator MURRAY —Can you repeat what you said for the chair?
Senator BRANDIS —Yes. I directed a question to Ms Griffiths, and the question was: in the event that there were a direction to you from the President of the Senate and a direction from the Clerk which were arguably inconsistent, which direction should prevail?
Ms Griffiths —I would not carry out either direction until I had clarified it with both the Clerk and the President.
—That tells us what course of action you would adopt to try to resolve the dilemma, but who do you understand has the ultimate authority in the event of an inconsistent direction? It is the President, isn't it? I am directing this question to Ms Griffiths, because she was the person who was the recipient of the communication.
Ms Griffiths —Yes, the President.
Mr Evans —Before we leave that line of questioning, I would not like it to appear that we were conceding that there was a conflict between the two instructions. I said to Ms Griffiths, `As you and the Senate staff will not be out on the glazed gallery standing guard, as it were, we can interpret the instruction as applying only to the security staff—and it is called a security directive.' I said, in effect, `There is room for the two instructions to act concurrently.'
Senator BRANDIS —Mr Evans, I am not suggesting that I dispute your characterisation of this but, as I understood the questions from opposition senators, there seemed to be dispute as to your characterisation of this. Your reservation on your position is well taken, at least in relation to my questions, but I suspect that that is not the characterisation others will seek to impose upon what you have said.
Mr Evans —The answer to the question of whose direction Ms Griffiths follows—the President's or mine—would depend very much on what the direction related to. In relation to dealing with an individual member of the Senate department, for example, the President would have no power to give a direction, and my direction would have to prevail because it would be the lawful direction. So the question could only be answered by looking at what the direction related to.
Senator BROWN —As I see it, the difficulty arising here is that we have a President who is not consulting with his staff but falling into agreement with what is coming from the Speaker in another place. I think that is leading to some very big problems. Mr President or Mr Evans, do you know of a precedent for a letter of this nature being sent to potentially use preventative force against a member of parliament?
The PRESIDENT —It is the first time it has happened to me, but then again it is the first time I have known the proceedings of a joint meeting to be disrupted in the way they were. They were unusual circumstances.
Senator BROWN —Have you been to a joint meeting previously? You have been to one, haven't you?
The PRESIDENT —Yes.
Mr Evans —The answer is no, I do not know of any precedent.
Senator BROWN —There is inherent potential for assault on a member of the Senate here. Mr President, I would have thought that under those circumstances you would have sought very good advice from your senior officers about entering that terrain. Can you explain to the committee why you did not?
The PRESIDENT —I certainly did not expect any assault on security, on a member of the Senate or on anybody else.
Senator BROWN —Even though you are authorising the use of preventative force?
—You cannot always guarantee that what you think might happen will not happen. As you know, I said earlier today that the Speaker and I did not think there would be any disruptions during the joint meeting; but there were, and other actions came later.
Senator BROWN —Did you discuss with the—
Senator FAULKNER —Hang on—how do you know what he thought? You said there were no discussions with the Speaker prior to the joint meeting.
The PRESIDENT —I am talking about discussions prior to when we signed the written authority for security.
Senator WONG —I thought you gave evidence earlier, Mr President, that you signed that letter after at least a telephone conversation with the Speaker.
The PRESIDENT —Yes.
Senator BROWN —So there were discussions?
The PRESIDENT —How do you mean there were discussions? There were discussions about the letter, yes.
Senator BRANDIS —Senator Calvert, do you regard resisting force as itself being the use of force?
The PRESIDENT —Sorry?
Senator BRANDIS —Let me give you an example. If an attendant or an officer were to bar entrance to Senator Brown, for instance, by refusing to permit the senator, following Speaker Andrew's directions, from entering the door or passageway, but the senator sought to force his way through, would you regard passively resisting the use of force by a senator seeking to effect that entry as being itself force? Is blocking somebody's way force?
The PRESIDENT —Blocking someone's way was what I think we intended.
Senator BRANDIS —Yes, that is my point. It seems to me that if somebody is blocking somebody else's way they are not the person using force but they are preventing the use—
The PRESIDENT —Exactly, that is what my thoughts about this matter were.
Senator BROWN —What we have not been able to get from you, President, is the extent to which the words `preventative force' could have been employed, I think unlawfully, against members of parliament about to enter a chamber meeting to which they had a right of entry because there had been no Senate order to the contrary. We may have to pursue this further. Do you know if there were any staff meetings or any meetings of security people to discuss what level of force could be employed against the senators under those circumstances?
The PRESIDENT —No.
Senator BROWN —You did not inquire about that?
The PRESIDENT —I am not aware of any meetings that went on.
—We have the period between the two sittings. You told the committee earlier that about a week earlier the Chinese Ambassador had contacted, I think the Speaker, but the parliament about concerns that there were about the forthcoming visit of President Hu Jintao. Could you give us more detail on that?
The PRESIDENT —No, I do not think—
Senator MURRAY —Are we leaving the area of preventative force now Senator Brown?
Senator BROWN —I would be happy for you to follow on with that.
Senator MURRAY —I have one question for my own clarification, if you would not mind. My question is: were all the security attendants normally employed by the Senate or the House of Representatives or the Joint House Department?
Mr Evans —I'm sorry I did not catch the question.
Senator MURRAY —Were the security attendants persons normally in the employ of either house or the Joint House Department.
Mr Evans —Does the senator mean before they were transferred to the Joint House Department?
Senator MURRAY —I will be explicit. My concern is that an order was given that preventative force could be used. If that were to be used by a `foreign' person who happened to be a security attendant for the day, I think that brings an entirely different complexion to the matter.
Mr Evans —The point I was checking with Ms Griffiths was by the morning of the 24th all the security attendants were under the control of the Joint House Department which means that they were under the control of the Speaker and the President jointly. None of them were any longer in the Senate department.
Senator MURRAY —Who was their employer at that time?
Mr Evans —The two Presiding Officers were their employers on the 24th acting through the Joint House Department.
Senator FAULKNER —Was there a different situation on the 23rd or the 22nd?
Mr Evans —That depended on which staff they were. As you know, before the transfer some security staff were attached to the Senate department and some were attached to the House—
Senator FAULKNER —When was the transfer?
Mr Evans —Midnight on the 23rd, I am told.
Senator FAULKNER —Has there been a transfer back?
Mr Evans —No. There has been no transfer back. I am not sure what you are referring to.
Senator FAULKNER —What is the background to the transfer on the 23rd?
Mr Evans —This was part of the reorganisation of the security function which involved the administrative location of all the security staff in the Joint House Department.
Senator FAULKNER —Not specifically for the Bush or Hu visit?
Mr Evans —No, no.
—It just so happened to take effect—
Mr Evans —It so happened that it occurred on midnight of the 23rd.
Ms Griffiths —Midnight of the 22nd.
Senator FAULKNER —When was that key date?
Mr Evans —We have just had a correction to that. They were transferred at midnight on the 22nd with effect from the 23rd.
Senator FAULKNER —That was handy.
Mr Evans —Let me just clarify that. There was no connection between this occurring on the 22nd and the Bush and Hu visits. I think that is what Senator Faulkner is asking—is that correct?
Ms Griffiths —No connection at all.
Senator FAULKNER —Who made the decision about those key dates, and when was that decision made?
Ms Griffiths —This was a decision taken in previous months in negotiations that our HR area were having with Joint House. We had previously said, as a result of the review of the administration of the parliamentary departments, that we would aim to get the security staff transferred to Joint House by the end of the year. We were able to transfer the required documents over before that time, so we were able to meet that date. Then the Public Service Commissioner, Mr Podger, signed an instrument of transfer dated 30 September 2003.
Senator FAULKNER —That is the instrument of transfer. The instrument of transfer included those two key dates of the 22nd and 23rd, did they?
Ms Griffiths —Yes. Previously the administrative staff with security were transferred to the Joint House Department—on 1 July.
Senator FAULKNER —And no-one gave any thought to the fact that, by sheer coincidence, this was to occur at the midpoint between the President Bush joint meeting and the President Hu joint meeting? That is just a total coincidence, is it? That is what you are saying? Fair enough.
Mr Evans —The point of the correction that I made earlier was that I had previously said, on advice from Ms Griffiths, before we had the documentation, that it was at midnight on the 23rd but that, on this instrument, it was actually midnight on the 22nd. It says that it has effect from 23 October. Presumably on the morning of 23 October all these people were located in the Joint House Department.
Senator FAULKNER —That is the morning of the Bush meeting?
Mr Evans —The Bush visit, and presumably that was a coincidence.
Ms Griffiths —It was.
Senator FAULKNER —That is what I am asking—whether it was a coincidence.
Mr Evans —To my knowledge, it was, and Ms Griffiths is confirming that to her knowledge it was a coincidence.
—We will have to check with Mr Podger.
Senator MURRAY —To continue with my line of questioning, I want to know whether at all times, when this order was given that preventative force could be used, the security attendants who might have used preventative force were obeying a lawful order from their employers—is that correct?
Mr Evans —Whether it was lawful is a very moot question that we cannot determine here—at least, I hope we do not determine it here—but they were directed, as officers of the Joint House Department, subject to the control of the two Presiding Officers jointly.
Senator MURRAY —And they were specifically employees of the Joint House Department?
Mr Evans —At that time they were, yes—and still are.
Senator BRANDIS —Can I pursue that?
CHAIR —No. Senator Wong.
Senator WONG —Thank you, but Senator Murray has covered the issues I wanted to raise.
CHAIR —In that case, Senator Brandis, go ahead.
Senator BRANDIS —If we can finally go off the issue of the meaning of these words, Senator Calvert, the way I read this document, this bit of the circular, the word `preventative' seems to relate to the conduct that is designed to be prevented. Am I right that, when you say `preventative force', that means enough force to prevent the direction of the Speaker being violated? That is what it means to me—and no more.
The PRESIDENT —Of course.
Senator BRANDIS —Hence the words `in the event that it is necessary'.
The PRESIDENT —I would have hoped that it would not have been necessary, and as it turned out it was not necessary. I hope we do not see a repeat occurrence of what happened.
Senator BRANDIS —And `sufficient to prevent the order of the Speaker being violated' was simply to block access.
The PRESIDENT —Absolutely. That is why they were stationed where they were at the end of the glass walkway.
Senator BRANDIS —Nothing more than that.
The PRESIDENT —Nothing more than that.
Senator BRANDIS —And nothing more than that happened?
The PRESIDENT —No, nothing more than that happened, that I am aware of.
Senator FAULKNER —Can you confirm that, Mr Evans? What do you understand `preventative force' is?
—It could include, for example—and this is the sort of example that I kept raising—that, if the two senators attempted to force their way past the attendants, the attendants were to block their way. If the two senators then assaulted the attendants in order to force them out of the way, the attendants would have to use force themselves in order to prevent them passing. The force could escalate in that way. If the senators struggled violently and continued their attempts to assault the attendants, the attendants might have to restrain them in a very forceful fashion. The amount of force required to prevent them entering could escalate to include virtually anything.
Senator BRANDIS —Depending on how much force the senators themselves used.
Mr Evans —Indeed.
Senator BRANDIS —So the role of the attendants in obeying this direction was passive and reactive. To the extent to which, in this scenario you have contemplated, Mr Evans, it could escalate, it would only, from the point of view of the attendants, escalate in response to an escalation of force by the senators.
Mr Evans —It would be basically reactive, yes. This is a matter which is very familiar to policemen, Mr Chairman, as I am sure Senator Brandis knows.
Senator BRANDIS —Quite. I do not think you need to be very smart to work out who would be the author of the force in that scenario.
Mr Evans —That is what the policemen always say, Mr Chairman.
Senator FORSHAW —Do you want to quit now, George?
Senator BRANDIS —And, Mr Evans, when police are being assaulted by violent acts, rightly so.
Mr Evans —Exactly, Mr Chairman.
Senator MURRAY —The point is, Mr Chairman, if the order were unlawful in the first place, if the meeting of the Senate had not approved the order that was made, then you have a question of whether people are being unlawfully prevented from attending.
CHAIR —Then we are going back over old ground.
Senator MURRAY —Exactly; and that is the difficulty, faced with instructions like these.
Senator BROWN —However, I can help the committee by saying that, when approaching the three gentlemen who were authorised by the President to block our way, it was quite clear that force was being used to prevent two senators from entering the House of Representatives chamber without authority having been given by the Senate to use that force. It is an inherent force, and it was there before us. Senate Nettle and I had no dispute with those officers, but the dispute—
CHAIR —Senator Brown, is this a question or is this testimony?
Senator BROWN —I am just helping to elucidate the events and how that situation arose. I will go on to the matter of what happened after and before the Senate hearing, but there is one question I want to ask because I do not want to let this pass. I may have asked this earlier, Mr President, but did you discuss with the Speaker the restraint on Senator Nettle by a staff member of the parliament, after the address by President Bush, which has been very clearly demonstrated on the footage that we have seen?
The PRESIDENT —I think I commented on that. I said the Speaker was having an investigation into what was happening. I have not had any discussions with anybody about it.
—As the interference was with a senator, why are you not having an investigation as President of the Senate? This is looking after the interests of the Senate here, Mr President. Are you going to entertain an inquiry under your authority into that interference with a senator?
The PRESIDENT —I thought the Senate had already resolved to refer the matter to Privileges. They have, haven't they?
Senator BROWN —I ask you the question: has the Senate resolved and, if it did, why did you take no earlier action?
The PRESIDENT —You had given notice of motion No. 4, which includes:
... whether there was any other improper interference with Senator Brown or Senator Nettle ...
and that matter has been referred to Privileges.
Senator BROWN —Yes, but some time took place before that during which the Speaker undertook to inquire into the matter. I am asking you why you did not inquire into the matter before the Senate took it up.
The PRESIDENT —There were various interpretations of what happened in the House of Representatives chamber. The Speaker had already indicated he was going to investigate matters regarding cameras and that other matter that occurred. I would rather not comment on that because it is before the Privileges Committee.
Senator BROWN —But I am asking, as a defender of the Senate's interests—and you are the ultimate authority on this, President—why did you not undertake immediately to inquire into somebody else interfering with a Senator in the way that we saw depicted on those CNN pictures of Senator Nettle being held back by the coat?
The PRESIDENT —There were a lot of people milling around at the time. I do not know who was helping who.
Senator BROWN —But surely you would have an inquiry to find out, wouldn't you?
The PRESIDENT —It may be that that particular person was trying to help Senator Nettle from being jostled—I do not know. That is a matter for the Privileges Committee to determine.
Senator BROWN —No, it is not; I am putting it to you that it is a matter for you to inquire into until such time as the Senate determines otherwise. But you did nothing, did you?
The PRESIDENT —I have not yet, no.
Senator BROWN —When it comes to the contact from the Chinese Embassy and/or government and/or their agencies of any sort, can you tell us when that began in relation to the visit of President Hu Jintao to the parliament?
The PRESIDENT —Chinese Ambassador Tao paid a courtesy call on me about two weeks before the visit. It was a courtesy call to say how important this was—that this was the first visit of this Chinese President outside of China and he hoped that everything would go well. There were the usual concerns, because he was taking the matter very seriously.
Senator BROWN —What were the concerns that he expressed?
—He was hoping that everything would be organised in the right fashion, that we could all work together and that the proper courtesies would be paid. I have not got a copy, but he did have notes he spoke from which had to be interpreted. Basically it was just a courtesy call as he was concerned that all the proceedings and the organisation of the visit were going ahead properly.
Senator BROWN —Would you care to give the committee your copy of notes taken at that meeting.
The PRESIDENT —I did not have any notes.
Senator BROWN —Were none taken?
The PRESIDENT —There was no need to—it was a courtesy call.
Senator BROWN —It was more than a courtesy call; he was discussing—
The PRESIDENT —I am sorry, Senator, it was a courtesy call.
Senator BROWN —I will allow you to keep your definition. Did he raise the issue of the speech to parliament and any possible concerned they had about security and/or protests arising from the speech?
The PRESIDENT —What was the first part of your question?
Senator BROWN —Did the ambassador at this courtesy call, as you call it, raise issues of concern about security and/or protests as far as the President was concerned?
The PRESIDENT —There were not any in particular that I recall, but he did say that he hoped the visit went well. He may have mentioned that he hoped there would be no demonstrations. I recall very strongly him saying that he hoped that the President would not be embarrassed, but he did not go into any detail.
Senator BROWN —Did you give him an assurance that the President would not be embarrassed?
The PRESIDENT —That would be impossible. I did say that we would do all we could to ensure that all the courtesies would be paid and that the Speaker and I would do the best we could to make sure that they were. I know that he also paid a courtesy call on the Speaker later.
Senator BROWN —What did you understand by him using the word `embarrassed'?
The PRESIDENT —My understanding was that the ambassador was concerned that we have a very successful visit by his President.
Senator BROWN —And would not be embarrassed by what?
The PRESIDENT —Embarrassed by any people demonstrating and causing disruption.
Senator BROWN —In the parliament or outside?
The PRESIDENT —We did not speak about in the parliament. He was, I think, just generally speaking.
Senator BROWN —So no reference was made to any particular person or groups?
The PRESIDENT —No, no reference was made to any particular person or groups.
—Senator Brown, we are due to have a break now. Do you have a few more questions on the specific issue of that meeting or is now a convenient time?
Senator BROWN —I think we can come back.
Proceedings suspended from 12.45 p.m. to 2.00 p.m.
CHAIR —The committee is still putting general questions to the Department of the Senate. Mr President, I think you had something to say.
The PRESIDENT —I want to make a couple of points, reiterating what I said this morning. Firstly, there seems to be some misunderstanding in the media about the evidence that was given this morning relating to the constitutionality of the joint sitting and the security directive that the Speaker and I issued on the Thursday afternoon following the exclusion of the two Green senators. I want to say again that there is no doubt in my mind that the authority existed to exclude the two senators from the chamber. The Speaker had that authority whichever way you look at it—whether it was a joint meeting or whether we were invited there as guests of the House of Representatives. We have to play by rules and 99 per cent of the people who were in that chamber believed they were there under the agreements made between the Senate and the House of Representatives and I think they all expected members and senators to behave themselves. They did not allow for what did occur.
On the other matter regarding the Clerk's instruction to his Senate attendants, they were in the chamber. The directive that the Speaker and I signed was to the security staff and it was headed `Security Directive', so I believe that that was clearly directed to the security staff. Quite frankly, the 3[half ] hours we have spent this morning talking about this matter would not have happened if Senator Nettle and Senator Brown had abided by the standing orders we believed we were working under.
Senator BROWN —I submit to you that it would not have happened had the Speaker abided by the rules as laid out in the vote of both chambers, but particularly the Senate. But he did not. He broke those rules and that is a matter for other places to judge. As it was a meeting of the Senate, why were Hansard staff not present?
The PRESIDENT —Given that there were senators and members sitting in both seats and the broadcast was not on, it would have been impossible to get any voice from anybody. It was a very noisy chamber. It would have been impossible. I do not think that Hansard have been in attendance at other joint sittings, have they, Clerk?
Mr Evans —I am not sure of that. I would need to check on that—probably not, I suspect.
Senator BROWN —Regarding this particular sitting, I just want to establish whether you had a part in deciding that the Hansard staff would not be at the table, as they are present at the table in every sitting of the Senate?
The PRESIDENT —It was not a matter that we discussed. But given the fact that there were set speeches—and I know there was a Journal issued after the sitting—I think it was seen that it was impossible to have Hansard present. The Clerk informs me that that there was a Hansard transcript but it was not done by having Hansard staff in the chamber.
—But according to the standing orders there is only ever supposed to be one speaker at a time and, if I am not wrong—and please correct me if I am—the point of having Hansard present on the floor is not to get speeches, as such, but to make sure that any other interjections and any other asides that may come from the speakers are picked up. Can you tell us why on this occasion it was decided that Hansard would not be in the chamber?
The PRESIDENT —I do not know why they were not there. I did not see that there was any reason. I do not suppose that anyone was expecting any interjections given it was supposed to be an event where everybody was going to abide by the rules.
Senator BROWN —But the point is not whether it is expected. A decision was made by you, because it could be nobody else in relation to Senate sittings on those two days, that Hansard would not be present. I ask you: did you speak with other senators about this?
The PRESIDENT —No.
Senator BROWN —I think that you should have. We were talking this morning about the approaches made by the ambassador for China in the lead-up to the two joint meetings.
The PRESIDENT —Yes. I was going to make a short statement about that.
Senator BROWN —Please do.
The PRESIDENT —Something was brought to my attention over lunch. You asked me this morning whether there were any groups mentioned and I said there were not any groups mentioned. But he did mention your name in passing and I said that I could not guarantee that you or anybody else would not create any problems. I think his reply was something like, `Well, that's democracy,' or words to that effect. But it was only in passing that your name was mentioned.
Senator BROWN —So the ambassador raised my name in the course of that discussion?
The PRESIDENT —When he was talking about whether there were likely to be interruptions in the parliament during the joint meeting by Senator Brown or anybody else, I said that I could not guarantee that. I think he made a comment like, `Well, that's democracy,' or words to that effect. But that was the only time that any particular names were raised.
Senator BROWN —On the evening of the 23rd and morning of the 24th, what new contact was made by the Chinese authorities? What was the next contact you had after that meeting with the ambassador?
The PRESIDENT —By the Chinese authorities? It was about two or three minutes before the President arrived, as I have told you earlier, when we went into the Speaker's suite when the foreign minister arrived.
Senator BROWN —But before that, the previous evening, you were not aware of any approach by the Chinese authorities to anybody?
The PRESIDENT —No.
Senator BROWN —When the Chinese authorities arrived that morning, what happened?
The PRESIDENT —The Speaker and I were standing outside—I think it was before the arrival time—
Senator BROWN —This is outside the parliament?
—Yes, outside parliament at the entrance. A white car arrived and a gentleman got out who identified himself—I did not know who he was. One of the Prime Minister's staff told us that it was the foreign minister. He said he had some concerns and we went into the Speaker's suite and he raised concerns about the likelihood of senators in the chamber disrupting the chamber.
Senator BROWN —Did he mention any names?
The PRESIDENT —I do not recall. He might have said Greens senators, I am not sure. He went in with the Speaker first; I came in behind and by the time I sat down we were talking about dissidents. He mentioned dissidents—
Senator BROWN —In relation to what?
The PRESIDENT —To interrupting proceedings.
Senator BROWN —Was he referring to members of parliament or was he referring to—
The PRESIDENT —No, I am sure he was referring to guests of Greens senators.
Senator BROWN —Did he mention anybody?
The PRESIDENT —Yes, he mentioned one particular person. I cannot pronounce his name but I think you know who he is.
Senator BROWN —Mr Chin Jin?
The PRESIDENT —Yes, I think that was the name. The Speaker assured him that those guests had already been located in the glassed-in area upstairs, as I indicated earlier this morning, on instructions from him the day before. I might add that, while we were waiting for the President to arrive, there were some other Chinese nationals outside who had late invitations and who were guests of Laurie Ferguson. We also allowed those people to go through to the overflow chamber.
Senator BROWN —Who was the man? What was his position, name and station?
The PRESIDENT —Are you talking about the Chinese person?
Senator BROWN —Yes.
The PRESIDENT —He was the foreign minister, I believe.
Senator BROWN —That is Mr Li?
The PRESIDENT —I am not sure what his name was but I was told that he was the Chinese foreign minister and he spoke very good English.
Senator BROWN —Did he have other people with him?
The PRESIDENT —He only had a secretary but he did not speak.
Senator BROWN —What did you say to Mr Li?
—I said very little. The Speaker did most of the talking because Mr Li was on that side of the Speaker's area. The Speaker reassured him as far as he was able that there would not be any interruptions to President Hu, that the two Greens senators were not coming into the chamber and their three guests had been placed in the area upstairs. He said, `Oh, well,' and the Speaker said, `That is the best we can do,' and Mr Li's—if that is what his name was—parting words were, `We will keep our fingers crossed,' and off he went. No more than two to three minutes later, President Hu arrived.
Senator BROWN —Was he on time?
The PRESIDENT —He was slightly late but the reason we were late getting into the chamber was that, in our run-through the day before, we had not allowed for the vast number of media who wanted to take photos while the President was signing the Speaker's book and the President's book. We had photos taken while we were doing that and there was television and whatever. Then we had to form up in the order of the way we were going to enter the chamber. The Speaker explained through an interpreter to President Hu the reason that he was following me, and of course that had to be interpreted back. As a result of that, we were two or three minutes late in coming into the chamber.
Senator BROWN —On the previous day, when the decision was made to remove the Greens guests from the galleries, why didn't you consult the relevant senators about that decision?
The PRESIDENT —The Speaker made that decision; it was his decision because he was in charge of the chamber. He indicated that to me late in the afternoon.
Senator BROWN —Isn't it the case that you have not consulted with your own staff and advisers about this matter? Now you are not consulting with senators about matters to do with their guests and that in fact you had abrogated all responsibility to the Speaker for what happened in a sitting of Senate.
The PRESIDENT —The Speaker made the decision to put those guests where he did because of the likelihood of a repeat of what happened the day before. I think he had every right to do that, and I concur with that. If you and your guests had behaved yourselves on the first day, we would not be talking about this now, would we?
Senator BROWN —That is a matter of your opinion. But we are talking about it now because of the decisions you failed to make.
The PRESIDENT —It is a pretty reasonable assumption.
Senator BROWN —I am trying to understand why it is that you abandoned your role as the President of the Senate—defending the interests of the Senate—in this circumstance, which you did, didn't you?
The PRESIDENT —I think it was my role in the interests of the Senate to make sure that the proceedings of the Senate and the House of Representatives were not interrupted as they were the day before and that we did not embarrass a guest of such high standing from the People's Republic of China.
Senator BROWN —What gave this guest of high standing from the People's Republic of China precedence over elected members of parliament in the way in which they were approached and addressed and discourse occurred? What made you think that in our Senate meeting there should be a different set of rules applying to this stranger in the House to—
—It was not a question of rules; it was a question of common courtesy and making a guest feel welcome. You do not invite a guest into your home and then abuse them, Senator. That is what you did to the President of the United States, and that is what I expected you were going to do to President Hu.
Senator BROWN —Are you aware of President Hu's record in terms of—
The PRESIDENT —I am not here to debate that. He was our guest—he was a guest of Australia and he was our guest in the chamber. That is the reason the Speaker and I took the decision we did.
Senator BROWN —But did you not take into account the way in which President Hu treats guests and people who—
CHAIR —Senator Brown, I think I know what you are going to ask.
Senator BROWN —The President has raised the matter—
The PRESIDENT —I am not a spokesman on foreign policy; I am only a spokesman on what happens in the chamber.
CHAIR —Order! Senator Brown, this is beyond budget estimates.
Senator BROWN —When it came to the decision to mark out the guests of the Greens and those of Mr Organ, the House of Representatives member for Cunningham, why did you not entertain talking about the matter with Mr Organ? I know that Mr Chin Jin was Mr Organ's guest. Can you explain to me why you decided, whatever your argument might be, to exclude the guest of Mr Organ from the chamber or to agree to that exclusion by the Speaker? Surely that runs counter to your argument.
The PRESIDENT —As I said before, it was the Speaker's decision. He gave the instruction and I concurred with it.
Senator BROWN —Are you aware that the Speaker had any communication with the People's Republic of China or any of their officers in the time leading up to this decision to exclude the Greens guests?
The PRESIDENT —No. The only times that I am aware that the Speaker had discussions with any of the Chinese were, as I said earlier, when the Chinese Ambassador came up and made a courtesy call—as he did to me—and when the foreign minister arrived with his adviser three minutes before the President arrived.
Senator BROWN —There were no communications between you or Parliament House—
The PRESIDENT —Not on my part, but the Speaker may have. I do not know. You had better ask him if you can.
Senator BROWN —Let me finish my question and then you can answer it. There was no communication between you and parliamentary officers or members of government and the people representing the government of the People's Republic of China in that fortnight?
The PRESIDENT —I had discussions with my staff and we went through a rehearsal, as I said earlier, of what happened in the chamber. We had a walk-through of how we went in, what we did and what we said. But that was as far as it ever went.
Senator BROWN —Then you did discuss, in those circumstances, what the situation was regarding guests in the chamber?
—No, I did not say that. I just said that we had discussions about how we were going to enter the chamber, ceremonially. As I said, the Speaker had already made a decision about your guests and he indicated that to me on the Thursday afternoon.
Senator BROWN —Did any members of the government or the executive approach you about this matter?
The PRESIDENT —No. You asked me that this morning and I said no.
Senator BROWN —I am glad to hear it reconfirmed.
The PRESIDENT —This is starting to sound like a court of law.
Senator BROWN —Were there any other members of the Chinese party in the parliament before or during the 23rd and 24th of last month?
The PRESIDENT —There may have been. Surely, they would have made the same arrangements as the Americans. They probably would have been in contact with security or whatever. That is probably what happened. I am not sure one way or the other what it was. Perhaps you could ask the security controller that. I did not have anything to do with that side of it.
Senator BROWN —It has been said—and I am amongst those who are saying it because I have been passing on the observation—that there was a Chinese representative at the gallery. Is that wrong?
The PRESIDENT —I do not know. I think you should ask the Speaker because the gallery, as the Black Rod said earlier, was being organised by the Department of the Prime Minister and Cabinet.
Ms Griffiths —Yes, there were ceremonial and protocol officers at the gallery plus security staff.
The PRESIDENT —Perhaps the head of security could tell you.
Senator BROWN —Were there any `foreign' people amongst those attending outside the gallery and taking part in that security arrangement?
Ms Griffiths —I do not know. You would have to ask the Executive Leader of Security, Mr Crane.
Senator BROWN —Okay. Why, President, when the guests were removed without consultation to the glazed area above usually kept for schoolchildren, did you not provide them with translation facilities?
The PRESIDENT —I had nothing to do with that. You mean: why did not the Speaker or whoever was responsible—
Senator BROWN —I would have expected that you, looking after the interests of senators, would have felt responsible to ensure that those guests who were removed still had the opportunity of listening to the presentation.
The PRESIDENT —They should have had the opportunity. If they did not, it was an oversight by somebody.
—They did not. I submit that it is an oversight by you because this was at your say-so and in consultation with you. I did not know about it, but you did.
The PRESIDENT —As I said earlier, the speaker made the decision to put those people in that area with the overflow guests from the senators and members. If those overflow guests, including your guests, were not provided with translation equipment, I was unaware of that. If they were not, someone made a mistake and I will try to find out who it was.
Senator BROWN —There were empty seats in the galleries, President.
The PRESIDENT —Which gallery?
Senator BROWN —In the public galleries, during the speech by President Hu.
The PRESIDENT —Which gallery though—the one on your left or the one on the right or the one facing us?
Senator BROWN —In the galleries. I am saying that there were seats there and that our guests were not overflow guests. They were redirected guests who were guests of members of parliament the same as every other member of parliament had guests there.
The PRESIDENT —I have already explained to you why they were redirected.
Senator BROWN —You have just referred to them as overflow guests and I am just—
The PRESIDENT —There were other overflow guests there and there was an area in the gallery that was not full. That was because it was set aside for part of the Chinese president's retinue. Similarly, the day before, you may recall—although you might not be able to recall it because it was behind you—there was an area set aside for members of the American contingent that was not completely filled, but that was set aside for that purpose I understand.
Senator BROWN —A phone call was made by people at the gallery to the Speaker's office regarding the guests of the Greens after which they were redirected upstairs. Were you party to that phone call?
The PRESIDENT —No.
Senator BROWN —Did you know about it?
The PRESIDENT —No.
Senator BROWN —Did you ask the Speaker at any time to keep you informed about matters relating to senators and their guests?
The PRESIDENT —If the Speaker had anything to tell me, he would have done so, I am sure. As I have already indicated, the only other guests that I am aware of with late invitations were Mr Ferguson's guests, and I know they were directed to the overflow gallery. That was very late in the day. I am not aware of any other matters relating to guests. That was a matter for the Speaker. I think PM&C were handling a lot of those matters.
—I put it to you that you abandoned your responsibility to the Senate and to senators throughout this episode. I ask you to comment on this: you ought at all times to have been vigilant to see that the Senate's interests were looked after, and that means those of any members of the Senate. On the evidence you have given, you simply handed that across to the Speaker. Do you have a defence regarding that proposition? I have drawn it from the evidence you have given today, President.
The PRESIDENT —With due respect, you can assert what you like. As far as I am concerned the Speaker and I had a duty to ensure that the joint meetings on both days were conducted in the best way possible, that there were no security breaches, and that our guests were treated in an appropriate manner as guests of the parliament and of Australia, and I believe we did that. If we had to take some actions that you did not like, I am sorry if you do not agree with what we have done, but if I was asked to do it again I am pretty certain that I would agree with the Speaker having regard to the precautions he took. I believe those members and senators who attended those joint hearings had the right to hear the President of the United States and the President of China in silence.
Senator BROWN —In total silence?
The PRESIDENT —Without interruption.
Senator BROWN —Yes, in total silence.
The PRESIDENT —Why not?
Senator BROWN —Well, I am not going to get into a debate with you. I ask you: have you been a guest of the People's Republic of China?
CHAIR —Senator Brown, this hearing is about budget estimates. While I may agree with some of your views on these issues, this is not the time or the place for them.
Senator FAULKNER —On a point of order, Mr Chairman: if Mr President has been a guest, as President of the Senate, and moneys were expended on that visit and so forth, I think the question is in order. But if Senator Calvert has done that in another capacity, I would say it is out of order. The question ought not be required to be answered by the President if he has been a guest in another capacity. He is appearing before this committee as President of the Senate.
CHAIR —I may be misunderstanding you: do you mean if Senator Calvert as President of the Senate has been a guest of a foreign country?
Senator FAULKNER —I would have thought in relation to these estimates that that question is in order.
The PRESIDENT —To save any argument I will answer that question, if you don't mind.
CHAIR —Certainly, Mr President.
The PRESIDENT —I have not been to China. I have not been a guest of the Chinese government but I have been a guest of the Chinese Ambassador here for dinner one night.
Senator BROWN —Thank you; that was easy. Did you have any conversation with the Speaker about Mr Organ or anybody else wearing the Tibetan flag in a black armband, as had been pre-announced?
The PRESIDENT —Certainly not.
Senator BROWN —And he did not talk to you about that?
The PRESIDENT —The Speaker?
The PRESIDENT —No, I don't think he mentioned it. He did mention in passing something about black armbands, but I don't—
Senator BROWN —In what way did he mention that?
The PRESIDENT —I think he just said that he had spoken to Mr Organ about wearing armbands. I did not take that much notice of it because it was only in passing.
Senator BROWN —Did Mr Li, the foreign minister for China, make reference to that?
The PRESIDENT —No. Mr Li, as I said earlier, raised with us the matter of two Green senators being in the chamber. He was led to believe there were two Green senators in the chamber and three guests—`dissidents' he called them—in the gallery who were likely to interrupt the President's speech. The Speaker repeatedly gave them assurances, as best he could, that that was not going to happen. They seemed satisfied with that. He said, `We'll keep our fingers crossed,' and he left.
Senator BROWN —Did Mr Li ask whether they were in the chamber or whether they were going to the chamber?
The PRESIDENT —I think he asked the Speaker whether they were in the chamber and the Speaker said, `No, they aren't because they have been banned from the chamber'—or words to that effect.
Senator BROWN —What else did he say about them being present in the chamber?
The PRESIDENT —Nothing.
Senator BROWN —Mr Li did not indicate that this was a problem to him?
The PRESIDENT —He was concerned about senators in the chamber—two senators in particular—and the guests interrupting the President's speech. That was the sum total of their concerns. The Speaker gave them assurances, as best he could, that that would not happen. They seemed satisfied with that and Mr Li left.
Senator BROWN —Did he indicate that proceedings could be delayed or prevented if there were—
The PRESIDENT —No. I read somewhere that the Speaker was threatened—or both of us were threatened—that the President would not turn up if steps were not taken. That is not true. There were no threats at any stage.
Senator FAULKNER —How did you become aware of the impending visit of the Chinese foreign minister?
The PRESIDENT —We didn't know until he turned up. A white car pulled up. I think we both thought it was pre-security. As you can imagine there were whole teams of Chinese people and our security people milling around the front door. They were all running around with radios and mobile phones up to their ears and the Speaker and I were waiting for the vehicle. We heard that it had left and then this car pulled up and out hopped the foreign minister.
Senator FAULKNER —And really you expected the President to hop out of the car?
—We did. It was a bit of a shock, I must admit.
Senator FAULKNER —What was the role of the staffer of the Prime Minister that you mentioned a little earlier?
The PRESIDENT —I think it was the PM&C coordinator at the front entrance who was to line us up—the protocol person.
Senator FAULKNER —So it was not the Prime Minister's staff, then. We ought to be clear about this for the record. It was a member of the Department of the Prime Minister and Cabinet staff?
The PRESIDENT —Sorry, yes, I believe that is who it was.
Senator BROWN —You were saying earlier that some people had indicated that their guests were X but they were in fact Y and according to the Chinese—
The PRESIDENT —No, the Speaker indicated to me that he had concerns that there had been some invitation swapping. Whether that had happened I do not know.
Senator BROWN —What was his concern?
The PRESIDENT —Obviously it was raised with him that people who were invited were not the people who were going to turn up.
Senator BROWN —That was raised with him by whom?
The PRESIDENT —I am not sure. He just said that there had been indications of invitation swapping. So obviously it would have been raised with him by concerned officials—whether they were our people or Chinese officials, I do not know. Perhaps you should put that question to the Speaker.
Senator BROWN —I am putting it to you because the Speaker is not here. Do you know? Did you check to see if that had happened?
The PRESIDENT —No, because I do not believe that was my role. The Speaker was responsible for that and security people were acting on his advice.
Senator BROWN —President, what was your role?
The PRESIDENT —I was there as President.
Senator BROWN —Then it was your role to check on what the guests were trying to do.
The PRESIDENT —I do not physically have to go around and check on everybody's invitations. Goodness me! We expected people to behave in an honourable manner and to act like senators and members.
Senator BROWN —And they did at all times.
The PRESIDENT —We do not have to go around asking everyone individually if they were going to flout the laws of the Senate, flout the invitation laws or be rude to people. We should not have to do that.
—We are talking about your taking part in subservience to a foreign power and the impact that had on this parliament. That is what we are talking about and it is a very serious matter, President. You misjudge me if you think it is taken lightly. You have said to the committee that there was concern about guests being swapped. Let me put it to you that on the Sunday before these meetings the Greens had publicly indicated that Mr Chin Jin and two Tibetans would be invited and that they were duly given their accredited invitations.
What I put to you is that the People's Republic of China had seen and been furnished with the original guest list and then they had come to the Speaker and/or you complaining that the original guest list had been changed in the case of Mrs Organ, who was not coming anymore but whose seat was to be taken up by Mr Chin Jin as a representative of the movement for democracy in China. He was specifically under view by the Chinese authorities and they were opposed to the swap being made. Following that, the Speaker, with you doing nothing about it, had these guests, including Mr Chin Jin, removed to the behind-glass gallery in deference to this concern from the People's Republic of China. That is what happened, isn't it?
The PRESIDENT —Thanks for the information.
Senator FAULKNER —Chair, I want to address a few of those issues but I will do so in Joint House because I think that will save some time. There are a number of issues I have flagged, and I am hoping they will not take much time, that we will deal with in relation to matters associated with this line of questioning about the joint meetings for President Bush and President Hu. I will do that, if I can, when Joint House come to the table.
Senator FAULKNER —There are one or two others areas I want to canvass quickly first so we can move along. Mr President, could I ask you very briefly for an update on where the new Secretary of the Department of Parliamentary Services is up to. Could you quickly advise us on that?
The PRESIDENT —I am waiting on advice from Ms Williams and Mr Podger, who I understand will have some recommendations coming to us before the end of this month.
Senator FAULKNER —But where is the actual process up to? Have interviews been conducted?
The PRESIDENT —As I said before, the process will be completed by November. I understand some interviews have been taken.
Senator FAULKNER —There is an interview panel obviously?
The PRESIDENT —The Public Service Commissioner and Ms Helen Williams, who is the only other person that has held the statutory office of Public Service Commissioner, have been invited to assist.
Senator FAULKNER —You mean the only other person who has held the statutory office of Parliamentary Service Commissioner?
The PRESIDENT —Parliamentary Service Commissioner, yes—the Public Service Commissioner.
Senator FAULKNER —There are plenty of them.
The PRESIDENT —Parliamentary Service Commissioner. She is assisting in the process.
Senator FAULKNER —So it is a panel of two, is it?
—They are going to make recommendations to the Speaker and me.
Senator FAULKNER —Could someone just outline briefly what the detail of this process is? It is still not clear to me where we are up to, what has been put in train and what part of the process we are up to.
The PRESIDENT —The Parliamentary Service Commissioner has been advising us. As you know, he did the original brief. Expressions of interest were called for. That is a common practice. Then he got Ms Williams to help him. Following the relative merits of those people that expressed an interest, I expect that he will report to me and the Speaker on persons he thinks we should interview. We hope to have that matter completed before the end of November.
Senator FAULKNER —I have got an answer to a question on notice from you, but I am just trying to understand where the process is up to. At the moment, it is at the point of interviews with—
The PRESIDENT —We are waiting for the recommended interviewees from him so that we can make a decision before the end of November, which is the time frame we set in place. I understand that Mr Podger has been away for a few weeks and that has delayed the process a little, but we are still hoping that we will be able to make a decision on the position before the end of November so that the Department of Parliamentary Services is established from 1 February 2004.
Senator FAULKNER —You received a report from Mr Podger. That is correct, isn't it?
The PRESIDENT —Yes.
Senator FAULKNER —That report may recommend a person for appointment to the position or might indicate there are two or more people of equal merit for the position—is that correct?
The PRESIDENT —I would expect that, but I have not seen the report yet. It could be one, it could be two or it could be three. I am hoping that we will get a clear report from those people who have been doing the work for us.
Senator FAULKNER —You think this is common practice—this sort of procedure?
The PRESIDENT —I have not had to do it myself but I understand it is common practice.
Senator FAULKNER —I am not aware of it ever having taken place before.
The PRESIDENT —We have not had a joint services department before.
Senator FAULKNER —So it is not a common practice; it is a new practice.
The PRESIDENT —We have tried to keep it as open and as transparent as possible by calling for expressions of interest. We are looking for recommendations from the Parliamentary Service Commissioner. That is why he employed Ms Helen Williams, an arms' length person, to advise him on those matters.
Senator FAULKNER —At this stage you cannot say to me whether there will be interviews or not.
—No I cannot because I have not received his report yet. His report may recommend one outstanding candidate; I do not know.
Senator FAULKNER —Has your advice been sought on this, Mr Evans?
Mr Evans —No, I am not involved in this exercise.
Senator FAULKNER —What guarantees or assurances do we have about the processes being sufficiently independent when it comes to the appointment of the Parliamentary Librarian?
The PRESIDENT —That is another question.
Senator FAULKNER —It is another question, yes.
The PRESIDENT —I understand that the Parliamentary Library Committee will become involved in the appointment.
Senator FAULKNER —Will they?
The PRESIDENT —A member and a senator from the Parliamentary Library Committee will be involved in the process of appointing the Parliamentary Librarian.
Senator FAULKNER —How?
The PRESIDENT —They will be on the panel.
Senator FAULKNER —A panel is going to be established, is it?
The PRESIDENT —There will be the Speaker, me and a senator and a member from the Library Committee, both from different sides of the fence.
Senator FAULKNER —When was that decision made?
The PRESIDENT —About three meetings of the Library Committee ago.
Senator FAULKNER —Where is the process up to, apart from having made that decision about the selection committee?
The PRESIDENT —We are ready to go on that but we want to involve the new Secretary to the Joint Services Department in that process.
Senator FAULKNER —There appears to be more transparency in relation to the appointment of the Parliamentary Librarian than there is in relation to the Secretary to the Department of Parliamentary Services. Do you think that is a fair conclusion to draw?
The PRESIDENT —I think the matter of the librarian was one of those matters where, if you recall, when we were discussing this matter about the proposal to appoint a joint services department, the statutory appointment of the librarian was a very important part. I think there were some assurances given that the Library Committee would be involved in that appointment. That is exactly what we are doing. As far as the appointment of the secretary to the joint services department is concerned, we are being advised by both the Parliamentary Service Commissioner and the former Parliamentary Service Commissioner on recommendations as to who should be appropriate for that position. If you think there should be a panel appointed for that purpose—
—I am comparing what appears to be a more transparent process—this is an assumption on my part—in relation to the Parliamentary Librarian's appointment than the appointment of the secretary to the joint services department. I think that is a reasonable point to make.
The PRESIDENT —We have never had this position before, but we have had positions of clerks. I am not sure how they are selected. I do not know whether they have a panel selection.
Senator FAULKNER —Part of the thrust of the Podger report, surely, was to ensure that there would be independence for the Parliamentary Librarian. That is clear. I would have thought that to have a process independent of the new departmental secretary was required. I would have thought that was a requirement in terms of the demands that arose from the restructuring.
The PRESIDENT —I do not think that it is unusual for a head of department position to be advised on by someone such as the Parliamentary Service Commissioner. In this case, there is one and one former one. That certainly should give some independence to it.
Senator FAULKNER —Who agreed to the processes for the appointment of the parliamentary services department secretary?
The PRESIDENT —You mean the joint services secretary?
Senator FAULKNER —Yes. Isn't it called the Department of Parliamentary Services?
The PRESIDENT —Secretary of Parliamentary Services.
Senator FAULKNER —Joint Department of Parliamentary Services. That is what it is called, isn't it?
The PRESIDENT —Yes.
Senator FAULKNER —Who determined the appointment processes?
The PRESIDENT —The Speaker and I did, on the advice of—
Senator FAULKNER —You did not make it a requirement for Mr Podger to have someone assist him?
The PRESIDENT —Yes, we did. We asked him to get another independent person to advise him on people we could interview. I think he suggested that the former Parliamentary Service Commissioner, who was seen as an independent person, could give us that sort of advice. I am not sure, but I think under normal circumstances appointments such as this are always in consultation with the Parliamentary Service Commissioner.
Senator FAULKNER —One of the reasons I raise this is that I was very concerned to read in the Canberra Times newspaper—a very good newspaper—on Sunday, 12 October this year, the name of an individual who, according to that newspaper, it has been assumed all along would be the person earmarked for the job. Did you see that article?
The PRESIDENT —No, I did not.
—That would concern you, wouldn't it—the name of a person assumed to be earmarked for the job mentioned in a newspaper while this appointment process is under way?
The PRESIDENT —In a position such as this, I guess there is always speculation about who might and might not be appointed. I did not see that article, and I would be very disappointed and very surprised if that name came from either of the people we have asked to advise us.
Senator FAULKNER —I am not suggesting it did.
The PRESIDENT —Then I guess anybody could come out and speculate on who might get the job.
Senator FAULKNER —But we may have an appointment process here which does not even involve an interview.
The PRESIDENT —I do not know who—
Senator FAULKNER —No, but we may have. I am not saying we will have but, on the procedures you yourself have determined are satisfactory, we may have an appointment process that does not even involve an interview.
The PRESIDENT —I do not believe that is the case. The Speaker and I would certainly interview whoever was recommended to us, and we have to make the final decision.
Senator FAULKNER —To read in the newspaper speculation that the person who is earmarked for this job has been the chief of staff of the Speaker—
The PRESIDENT —I do recall that now. I can assure you—
Senator FAULKNER —You told me a moment ago you did not recall it.
The PRESIDENT —I did not know who you were talking about. I heard something and I thought it was only someone having a go at him; I did not realise it was in the paper. He is certainly not an applicant for the position. He just laughed it off.
Senator FAULKNER —So you know who the applicants for the position are?
The PRESIDENT —No, I do not know who the applicants are.
Senator FAULKNER —How do you know he is not an applicant?
The PRESIDENT —Because he told me he was not.
Senator FAULKNER —So you did raise it with him?
The PRESIDENT —No, somebody else raised it with him. I just thought they were having a joke—
Senator FAULKNER —The whole process sounds like a shemozzle to me.
The PRESIDENT —and he said, `You don't think I'd apply for that job, do you?' But when you just mentioned that name—
Senator FAULKNER —I would have thought that for you and the Speaker, when this sort of speculation is made public in the media, there would be some concerns.
—If I had seen that article I would have been concerned.
Senator FAULKNER —It is a pity, isn't it, that there is not an adequate apparatus around you to draw these sorts of things to your attention?
The PRESIDENT —As I said, we were waiting on advice—
Senator FAULKNER —At least you knew about the speculation, even though you had not seen the media article. I suppose that says something about the rumour mill here in Canberra.
CHAIR —There is always speculation, Senator Faulkner. It does not worry you often. It does not worry me either.
Senator FAULKNER —I think you would be worried about ensuring that there is a bit of integrity in some of these process in relation to the appointment of a secretary of a parliamentary department.
CHAIR —Sure, but—
Senator FAULKNER —As far as I can see, we could have a person appointed here without even an interview.
CHAIR —Gossip in the Canberra Times does not necessarily amount to much.
Senator FAULKNER —I do not know; it does not necessarily—
CHAIR —Anyway, I am debating; I should not do that.
Senator FAULKNER —We know from the President that the person who was speculated about has not applied for the job. That leaves 20 million others who might have.
The PRESIDENT —Senator, it is the first time a position as head of a department such as this has been advertised, I am advised
Senator FAULKNER —Is that right?
The PRESIDENT —Yes.
Senator FAULKNER —Let us have the detail of that then.
The PRESIDENT —It is the first time a position as the head of a parliamentary department has been advertised.
Senator FAULKNER —So the job of the Secretary to the Joint House Department was not advertised when he was appointed? That is what you are saying.
The PRESIDENT —If my advice is correct, I do not believe so.
Senator FAULKNER —Mr Evans, you obviously got through without any advertisement for your position.
Mr Evans —I do not know whether any positions have been advertised in the past. That is not something I have checked on.
Senator FAULKNER —I accept the evidence that the President has provided to us.
The PRESIDENT —I do not believe that has been the case. The applications go to an independent person for assessing. That is the path we took.
—The key point here is that people need to be assured—and I hope you would accept this—that the process is proper and rigorous. I am sure you agree that it is reasonable for this committee to be assured of that.
The PRESIDENT —Yes. It certainly will be. In retrospect I think I have seen some names. We did get a list of some names of those who had shown some interest, but it was not a final list. That was about two meetings ago.
Senator FAULKNER —Two meetings ago of what?
The PRESIDENT —Our Presiding Officers meetings. We were advised that some names had been put forward but there were others to come.
Senator FAULKNER —So Mr Podger has made a preliminary report to you?
The PRESIDENT —No, I think he just informed the Speaker's senior adviser of two or three names of those who had expressed interest, and there were others—
Senator FAULKNER —That is absolutely outrageous, if it is true.
The PRESIDENT —Sorry—he made a preliminary report with a list of names in it, I am advised.
Senator FAULKNER —He did make a preliminary report?
The PRESIDENT —Yes, but just a list of names. He will go through those names and assess them and give us a final report when he returns from overseas or wherever he has been, and then we will make a decision , given that advice, before the end of November.
Senator FAULKNER —So are we at the point of a shortlist, would you say?
The PRESIDENT —Yes, but there is no recommendation to the Presiding Officers yet.
Senator FAULKNER —Are you aware, Mr Evans, whether positions for secretaries of parliamentary departments are advertised internally—government gazettes, this sort of thing?
Mr Evans —I am not aware of what processes have been followed in past cases. I would need to check that. It is not something on which I have information available to me.
Senator FAULKNER —I would be interested to know about the pattern, but I accept what the President has said.
The PRESIDENT —If there is any more up-to-date information, I will get back to you on that.
Senator FAULKNER —I am sure the committee would be interested if there is any more information.
The PRESIDENT —Certainly.
Senator FAULKNER —The answer to the question on notice that you provided to me, as I recall it, did not involve any preliminary reports to the Presiding Officers.
The PRESIDENT —That may have happened since. I am not sure of the date on which I gave the answer to that question on notice. How long ago was it?
—I think it was received by the committee earlier this month. The secretary could confirm that. Now you are saying that we are likely to have an appointment by the end of November?
The PRESIDENT —Yes.
Senator FAULKNER —As opposed to November, it is now the end of November?
The PRESIDENT —No, I think I said the end of November originally. We want to be in a position to appoint someone before the end of November.
Senator FAULKNER —The end of November?
The PRESIDENT —Yes.
Senator FAULKNER —As I understand it, in the information you have previously provided to the Senate via my question on notice, there was no indication that the Parliamentary Service Commissioner would be providing interim reports to the Presiding Officers on this process.
The PRESIDENT —That has happened now, and hopefully we will have a final report in the very near future.
Senator FAULKNER —Was it a written report that Mr Podger provided? I hope there was no gossiping about the names of—
The PRESIDENT —No.
Senator FAULKNER —a shortlist of candidates at the Presiding Officers meeting. Is it a written report?
The PRESIDENT —It was a written report to us both.
Senator FAULKNER —So a formal report to the Presiding Officers?
The PRESIDENT —Yes.
Senator FAULKNER —Effectively, if you like, a status report on where the process was up to?
The PRESIDENT —Exactly.
Senator FAULKNER —Can you say when that was provided to you?
The PRESIDENT —We can provide that to the committee on notice.
Senator FAULKNER —But it was Mr Podger who took the initiative of suggesting that Ms Williams assist him in this process, wasn't it?
The PRESIDENT —I think so, yes.
Senator FAULKNER —It wasn't the Presiding Officers' idea at all; it was Mr Podger's idea?
The PRESIDENT —I think there were certain people suggested and the Presiding Officers suggested, after discussions, Ms Williams as a possibility.
—But that initiative came from the Parliamentary Service Commissioner, didn't it? That is what you told me in answer to a question on notice, so I don't want you to take too much credit for the fine idea here, given that you have previously given me an answer to a question which said it was Mr Podger's idea.
The PRESIDENT —We put Ms Williams's name forward as one of the people.
Senator FAULKNER —Anyway, I would appreciate it if you would keep the committee up to speed on this matter.
Senator BROWN —Has there been any discovery regarding the poisoning of the bogong moths? Has there been any movement on that front?
The PRESIDENT —Joint House have an answer on that. The only thing I am aware of is that the small bird that Senator Bartlett presented me with last week has been identified as having died of a collision with one of the walls. However, I think Joint House can answer better than me.
Senator FAULKNER —It happens a lot in this building, doesn't it—people colliding with walls?
Senator BROWN —Including glass walls.
Senator FAULKNER —But not birds necessarily.
Senator BROWN —Have you any more information on what the cause of the absence of the birds is?
The PRESIDENT —I sent a letter to you this morning regarding the questions you asked about poisons. As far as I am aware, we are still waiting on an analysis of the bogong moths as to what may or may not be contained in them. I am sure Joint House could give a better answer than I could.
Senator FAULKNER —We need to move on quickly. We can come back to that when we have Joint House here. I wanted to ask Mr Evans about the discussion paper on section 57 of the Constitution. Has there been any Senate involvement in the development of that discussion paper at all? I assume not, but I just wanted to check that.
Mr Evans —In the development of the discussion paper? No, I certainly have not been involved and I am sure the Department of the Senate has not been involved.
Senator FAULKNER —Has there been any activity in the Department of the Senate as a result of the preparation or publication of that particular discussion paper?
Mr Evans —I am about to send off to the consultative group who are gathering information about the discussion paper a response to their invitation for comment on it.
Senator FAULKNER —This is the group which includes—
Mr Evans —It is chaired by Mr Neil Brown.
Senator FAULKNER —Mr Brown, Mr Lavarch and so forth?
Mr Evans —Yes.
Senator FAULKNER —Is that an individual submission or on behalf of the Department of the Senate as Clerk of the Senate?
Mr Evans —It would be my individual response to the invitation.
—Did they request a submission from you?
Mr Evans —The chair of the group, Mr Brown, called on me and said that they would be happy to receive one.
Senator FAULKNER —Thank you for that. I have a number of other questions, Mr President. I might place those on notice in the interests of trying to move through the agenda as quickly as I can. These are questions for the Department of the Senate. Obviously there are issues I have flagged for Joint House that we will need to come back to.
Senator BROWN —Going back to a note I had, Ms Griffiths, about your liaison with PM&C about the guest list into the gallery for the joint sittings, when did you first become aware that there was concern about the guests of the Greens for the sitting for President Hu?
Ms Griffiths —On the Friday morning.
Senator BROWN —Did you have liaison with Prime Minister and Cabinet about that matter?
Ms Griffiths —No.
Senator BROWN —Thank you.
CHAIR —There being no further questions for the Department of the Senate, thank you Mr Evans and officers.