Senator COLLINS (Minister for Transport and Communications) (3.44 p.m.) —There is probably more information about ministerial responsibility in terms of material available now than any other subject on earth. A very subjective view is taken. Senator Alston has invited me to give the Senate my view on the subject and I will. I have moved a few censure motions in my time, and I have called for enough resignations during my 10 years in opposition to find this a very familiar debate. The problem is that Senator Alston's speech does not address the political context on which this entire process was based. I have not forgotten it.

Senator Alston —That there was an election on?

Senator COLLINS —No, I am not talking about that. The press was wall to wall when I was in the Federal Court as a result of these matters—I might add, when I did not have to be—addressing these questions of impropriety, helping out mates and intervening to ensure that there would be a predetermined outcome and so on.

Senator Alston —That was after this.

Senator Collins —No, it was not. Senator Alston should have a look at what was said in the press prior to Christmas and in particular the statements made by him and by Hewson. Then he should have a look at the statements made after Christmas by Tim Fischer—

The DEPUTY PRESIDENT —Order!

Senator COLLINS —Mr Fischer talked about mysterious people coming to Canberra and fixing it up. All those statements were totally baseless. Today, in an interesting interview on AM, Senator Alston said that I was negligent. That was the charge laid by him. Why did he say I was negligent? Because I had not intervened to put on five per cent or $5 million as a precondition.

  I have a very great regard for this Parliament, for any Parliament, and for ministerial responsibility. The Senate cannot possibly make a harder judgment on me than I continually make on myself in that regard. In my view it involves three elements: first, a Minister behaving with propriety and, second, a Minister behaving responsibly in every sense of that word. Those two issues cover matters such as deliberately misleading a House. In my view, when a Minister fails in those two elements it is a hanging offence.

  We then come to the third element, that of competence, which also is important. That is where one gets into the highly subjective area of ministerial responsibility.   The charge that has been laid against me today is based on competence. I have been accused by Senator Alston—he has laid it out today by going round and round on the same subject 50 times—that I was not exercising due diligence by sitting down like a corporate lawyer and second-guessing the department. Of course, I could not have done it unless I had had the intention of making some changes. I will put the question of propriety and responsibility on the charge because, while Senator Alston has only accused me of negligence, other people have accused me of plenty more, to the extent of formally doing so in the Federal Court. That charge is still sitting there awaiting a determination.

  There were three avenues to that court case. The first two related to the narrow legal question of whether the determination that I issued in January was lawful. It will be an interesting test. I received advice from the department that it was lawful. Subsequently that advice was confirmed by the Attorney-General's Department, with the concurrence of the Commonwealth Solicitor-General, Mr Rose, that it was lawful. But, as Senator Alston knows better than I do, the Federal Court will finally determine that matter.

  Senator Alston should have a look at the third avenue which is in the applicant's submissions. I might add that the matter was a very public process in that the courtroom was full of press, and the transcripts of proceedings are publicly available. This third avenue went to the most serious charge that can be laid against a Minister in relation to any matter, and that is abuse of public office—misfeasance. All the horrendous allegations—that the Prime Minister did this and he ordered me to do that—were baseless. Senator Alston knows that this was the political context in which this process was going ahead. Those allegations are all garbage.

  Despite making all those allegations in writing to the Federal Court, I was not called to give evidence. I did not have to give evidence. Counsel acting for me said, `Look, if there is no requirement for you to appear in the court, it is a matter for you entirely. We're perfectly happy to go to the court, but on the written evidence there are no grounds for making these charges. It is a matter for your decision as to whether you go'. I have a very simple view of the Australian judicial system, and I still hope that I will die holding the view. My view is that if one knows that the charge is false and one goes to court and tells the truth, one will have nothing to fear from an Australian court.

  Having spent 16 years in public office, I did not relish the prospect of going to court. I have never been to court and been cross-examined under oath. In court criminal sanctions apply to anybody who seeks to mislead. I went to the court and I was cross-examined for three hours on those first two tests of ministerial responsibility; that is, the propriety of how I behaved. It is all there in the transcript.

  The reason I am making this point is that there is hardly anything left that can be turned up. We have been FOI' d to death. All the documents are in the Federal Court and, as a result of court orders, they are also in the hands of the press. I will make sure, and I have asked the secretary of the department to do so, that the two or three bits of paper that have happened since then will also be provided to Senator Alston or the Senate.

  I believe that this is the appropriate debate in which to canvass this matter. As Senator Alston knows, he cannot be cute and just say, `I've only accused you of incompetency'. He knows perfectly well what this debate is about. Just have a look at what has been said in the press in the last 48 hours. I picked up a story the other day that said that we changed the process. The latest one of putting in amendments as a result of industry pressure to fix the figure at five per cent is absolute nonsense.

  On the question of negligence, Senator Alston asks, `Why did I not just shove $5 million onto it; that would not have made any difference?'. That is not how it would have been judged in here or anywhere else. I immediately would have been asked, `Why, of your own volition, did you want to second-guess this department, which during your time as Minister has had an impeccable record'—and it has—`of letting major broadcasting tenders for radio, television and telecommunications?'. We have just banked the $70 million from the third mobile licence. Senator Alston is enough of a politician to know that that is true. I had absolutely no reason to believe in a real sense that the department would not carry out the mechanics of this process in the same competent way that it has carried out the mechanics of major tenders since I have been a Minister.

  Was there any systemic failure? In other words, was there something that a Minister could properly be responsible for? Had a Minister been alerted to a consistent flow of mistakes through the department? No. What is the procedure, Senator Alston? The honourable senator knows that it is not a procedure that operates just in my office; it operates in any Minister's office, and I have checked it. As one Minister said to me, unless it is specifically flagged that the department is going to vary previous procedure in terms of process, of course a Minister does not assume that it is. The procedure is quite simple and I am very familiar with it.

  The department has a responsibility, even with minor variations, to seek approval specifically, not just to provide a piece of paper saying, `Here is an outline of the process'. I might add that there is no reason for me to make any assumption that that was the total process. That is not good enough, and it is not. It has to be specifically flagged that it is going to be changed. Well, it was not. Was there any systemic failure? No, but there was a failure in this case and I have taken the appropriate action. So that is the situation.

  What did I know about the process? The determination arrived in my Darwin office. Although it was two months before the election, I actually was not running around mobile polls, Senator Alston. Almost all of my ministerial staff were on leave because—and I think most other Ministers would probably have this arrangement—January is the only time of the year that they can get a break. I am glad that Senator Alston at least agrees with that. Last year was a pretty hard year—not that that is an element of this at all. I am simply describing exactly what happened. I knew what had previously happened. I knew that the department's communication selection team had been working on this. I knew that internal advice had been flowing backwards and forwards between the Attorney-General's Department, checking out the validity of the process.

  I received the determination. I got a phone call from the department—I actually took the call myself because I had only one secretary in the Darwin office—asking, `Is the determination there?'. I said, `Yes.' I asked, `Has it been cleared by Attorney-General's?'. I was told, `Yes, it has been cleared by Attorney-General's; indeed, there is written advice to that effect'. I signed the determination.

  Senator Alston asserts—and he knows this is unreal—that I should have sat down with that determination, like a corporate lawyer—which, of course, I am not; but I would not have done it anyway—and assumed that the process was flawed and that I should have second-guessed the department and said, `Hang on, is this condition in the industry bit at variance?'. Of course, that is absolute nonsense. I saw the $500, as Senator Alston knows perfectly well, because I briefed him on it. I assumed it was nothing else—and it is—but a lodgment fee. Can I just say this now: there was no deposit. That was the decision that was taken. There was no deposit asked for. And it is breathtaking. It was simply a paper shuffling charge. That is all that I assumed it was, and that is in fact what the secretary of the department has advised me it was.

  Let me just say this—perhaps this is taking ministerial responsibility too far, but I do not think so: not only had I made an absolute decision, and I think in all the political circumstances reasonably, that I was not going to change a comma or a full stop in the process for this particular tender, but I told the senior private secretary in my office last year that I did not want any member of my office to interfere with the process that was going—

Senator Alston —Did you sign it?

Senator COLLINS —That is correct, I did. I will tell the honourable senator why, and the Federal Court demonstrated this. I am perfectly well aware that even a phone call to the department generates a file note, all of which properly is recoverable. I can just imagine what would happen in the real world if there were communications between my officers saying, `Is this high enough, or is that high enough, or should you change this and that?' What would happen if I tried to say in here, `Oh well, they were not doing it on my authority at all'. Of course, I would have been believed by Senator Alston! What nonsense! The fact is that, rightly or wrongly—and I think rightly—I made a decision not to intervene in this process.

Senator Alston —You signed whatever they served up.

Senator COLLINS —Senator Alston should go back and have a look at the press. He should go back and have a look at the context—

Senator Alston —Look at the document.

Senator COLLINS —Not the document, Senator Alston. As I said, I was not going to sit down with that document. I checked the document for completeness. I signed it, but I had no intention of sitting down like a corporate lawyer and second-guessing it with the intention of changing it. Of course, as Senator Alston knows, the department's original position on this would have been a matter of record and my changes would have been a matter of record. I might also add that to the best of my knowledge no other Minister, certainly in my time in the portfolio, has ever done such a thing.

  I can just imagine the questions. If I had done that, if in Darwin I had said, off the top of my head, $5 million, as Senator Alston is suggesting, and if after I had done that—and let us get down to the bottom line—the Packer-Murdoch consortium had won it and, even worse, the Packer-Murdoch consortium had been one of the few bids even put in, I know what the questions would have been. `Senator Collins, has your department handled tenders in broadcasting worth hundreds of millions of dollars while you have been in the portfolio?'. Answer—`Yes'. `Have they done it competently and efficiently in accordance with good business practice?'. `Yes'. `Have you ever intervened or altered the process of any previous tender?'. `No'. `To your knowledge has any other Minister done so?'. `No'. `Why did you choose this particular tender for pay TV?'. I am being buried with accusations in the press—and do not think that that sort of thing does not get to you after a while; it does—on absolutely baseless grounds that I was setting up the process myself for the benefit of a certain few. Of course, this would have been said, and Senator Alston knows it.

  Was it reasonable of me, under all the circumstances, to have assumed that the department would capably carry out the process of a tender in the way in which it had on every previous occasion that I had been involved with the portfolio. Only a reasonable person—and I am not going to find any across the chamber today—would say `Yes'. Was it reasonable of me, in all of the political circumstances of the time, to treat this tender with particular care and, based on the assumption I have just talked about, take the decision that I was not going to be seen to be interfering in any way?

  It is easy for Senator Alston to say, `You could have put in $5 million; it would not have upset anybody'. Do not tell me it would not have. I would have been in here answering questions such as, `On the basis of what advice did you put $5 million in, Senator Collins, when your department did not want to exclude this company or that company? Why was it not $2 million? Why was it not $1 million?'. Of course that would have happened and Senator Alston knows it.

  So I think it was reasonable of me. As I said earlier today in Question Time, this is not a very pleasant process for anybody, but I would rather be in here copping flack for not intervening in the department's processes—as far as I am concerned, I can do that with conviction—than trying to defend what I would have thought in terms of real ministerial responsibility was indefensible. Had I taken the decision to interfere in the administration, the mechanics, of a tender process, where I had not done so in respect of any other tender lodged in the department, do not tell me what would have been said in the press. I know perfectly well.

  Did I have any reason to believe that they changed the form of process? No. Was the routine that I was used to and to the best of my knowledge had been performed on every other occasion? Where there is substantial change—and how substantial could one get than this—is the department required to specifically seek approval for that variation in process? I have since discovered—and I did not know it until this happened—that there is a requirement in fact to do that within the department and to flag such advice to the secretary. I do not know whether that happened and, of course, the investigation will find that out.

  As I said earlier today, this is, in a real sense, a trumped up charge. One thing about this industry—and have a look at it—is that it is absolutely inundated with criticism, inundated with legal action. I have spent a lot of time looking around the world at the central policy question; I have spent a lot of time investigating price based and merit based systems.

  Senator Alston interjecting—

Senator COLLINS —No, that is process. I have spent a lot of time on that, not just here but also around the world, and it is a very interesting examination. The United States has produced some interesting material in this area, particularly with regard to the FAA and things such as air traffic control contracts. On balance, a price based system produces the best value to the public—

Senator Bishop —Nobody is arguing about that.

Senator COLLINS —Can I finish? Comparing a price based system with a merit based system, the former produces the best value to the public. I make these points because everyone is now saying, `You should have assessed viability, et cetera'.

Senator Alston —Rubbish.

Senator COLLINS —Senator Alston should look at the weekend press, which contains his own statements. How can he sit there with a po-face and deny it? Have a look at the merit based system. At the end of the day, is the merit based system determining viability a better judge of the future financial operation of a company than a price based system? It is not, from what I have seen.

  I am making these points—and I should point this out to Senator Alston—because this is what the Democrats have been saying. They are involved in this debate. It is not just Senator Alston; the world does not revolve around him. I am making these points because I have seen what the Democrats have said. All I am saying to the Democrats—and they have a view—is that the best result as far as I am concerned is, firstly, to get the best market value of the asset for the public and, secondly, to end up with a viable operator. On balance, I still think that the price based system is better.

  The Government adopted the policy decision that the system would be price based and, of course, it was recommendation No. 1 of Senator Alston's report to this Senate on pay TV. I can anticipate what Senator Bourne is going to say but, with the greatest respect, I have a different view to the one she will expound on the merits of the two systems. In all the political circumstances—and that is the real world I live in—there was no way—

  Senator Alston interjecting—

Senator COLLINS —Did honourable senators see what happened to Tony Staley? I actually went back and had a look at what happened to the first Minister who touched pay TV, not knowing what I would find. It was fascinating to look at. Tony Staley referred the question of pay TV to the ABT. Do honourable senators know what happened? It was an absolute debacle. Tony Staley received written advice from the Attorney-General's Department that the ABT was acting unlawfully. He ignored that advice. The matter went all the way to the High Court, which ruled in favour of the applicants, ruling that it was acting illegally. Tony Staley was censured in the Parliament for ignoring specific advice telling him it was wrong and he was called on to resign. Did he resign? No, he did not resign.

  Do not think this matter is unique. In a real sense, I have to say, have I behaved with propriety on this issue? I have. Have I behaved responsibly on this issue? I have. Some might now say I have behaved too responsibly in distancing myself from this process. Have I behaved competently on this issue? I believe I have.