Senator BISHOP (4.13 p.m.) —This fiasco is one of such proportions that it truly would be worthy of a script for Yes, Minister. But I am afraid that even Sir Humphrey would be unable to get the Minister out of this plight, even aided and abetted by Bernard. The Minister for Transport and Communications (Senator Collins), in his response to Senator Alston, seemed to have a twofold defence. The first was that he was frightened to death, therefore did not want to know anything about it, and that if he did not think about it he felt it might all go away. Secondly, he had in his head some quaint notion of the ramifications of what is meant by a price-based allocation system.

  We heard a long diatribe from Senator Collins about the merits of a price-based system versus a merit-based system. All of that is entirely irrelevant. Nobody is arguing today that it should have been a merit-based system as opposed to a price-based system, except Senator Bourne, who gave us her personal view on why it is better.

  The motion moved by the Opposition very simply says that the way this whole matter was conducted has brought into question the competency of the Minister and the department. The Minister cannot get off the hook by saying, `I was frightened to death, I didn't touch it and it was all the department's fault'.

  Let us get it right. Section 93(1) of the Broadcasting Services Act required that the Minister `shall' determine in writing a price-based allocation system. In the judgment of the case of Kerry Stokes concerning the MDS licences there is a section dealing with the history of this case which says that a determination was also required to be made by the Minister under section 92A of the Act, which Senator Alston referred to earlier. It also shows that prior to the power being confirmed on 5 October 1992, the Minister had in another document on 1 October 1992 determined that a tender-based allocation system would be applied for the granting of licences. Subsequently that was revoked and the system to be used for allocating those licences was to involve, in the words of the Government Gazette, `tenders for a price-based allocation of MDS system'.

  The point that I am making is very straightforward and simple. The provisions of section 92A and section 93(1) are very similar and differ only in the use of the words `may' and `shall'. For the information of Senator Collins, I inform him that when an Act says `the Minister shall', that is precisely what it means—the Minister has no option. If it says `the Minister may', it means he has a discretion.

  Having chosen to exercise the discretion under section 92A, I then look at the tender document itself and find that under the section that says `Tenders' it says:

A tender must

(a) be in a sealed envelope with the name of the applicant and the words—

then it deals with the description of the tender itself—

. . . state the licence or licences tendered for;

Provision (d) says:

. . . contain

(1) a non-refundable application fee of $500.

This is the determination made under section 93(1). The determination made under section 92A is also contained in the judgment. It says:

It shall contain a deposit of five per cent of the amount bid.

Just so that we get that straight, in exercising the discretion given to him under section 92A, the Minister chose to have a provision that the tender shall be accompanied by a deposit of five per cent of the amount of the bid. In the tender document, which is pursuant to section 93(1)—which is not a discretion, and where it says the Minister `shall' make a determination—the requirement in the document is that there shall be a non-refundable application fee of $500.

  The questions that come readily to mind and which the Minister needs to answer are as follows. On what date did the Minister first discuss the determination that he was to make pursuant to section 93(1) with his department? When did he establish what the precedents for licence tenders were? When did he ascertain what the fundamentals of the invitation to tender were? When did he become aware of the fact that the tender was to differ from precedent? Did he seek advice from his department as to why he was not following precedent—and if not, why not? If he did not acquaint himself with any of those facts, why not?

  I will turn to the determination and read the words which Senator Alston read:

I, Robert Lindsay Collins, Minister of State for Transport and Communications, under section 93(1) of the Broadcasting Services Act determine the following price-based allocation system for allocating subscription television broadcasting licences A and B.

The determination is one that the Minister has to make in an informed way. Therefore, if he made that determination without having ascertained from his department what were the precedents and, when he became aware of the fact that he was departing from precedent, what was the reason for doing so, he cannot run away from that responsibility by saying, `I was frightened to find out any information'.

  In his defence today, the Minister said that one reason he wished to have a hands-off approach to this whole question was very simply that he knew how controversial the matter was—that he was aware of all the material that was being written and he was aware that it was a matter that would attract a lot of comment both in the press and in the chamber. He said that had it been shown by freedom of information action that he had made a telephone call or queries about the manner in which this tender was to be conducted, he would have been castigated in this chamber.

  The truth of the matter is that being frightened of being asked questions in this chamber is no reason to abrogate his responsibility. If the Minister is required by law to make a determination, he must do it in an informed way. The Minister's further defence that he has so many pieces of paper coming across his desk that he does not know what he is signing does not stand up, even if that is a defence in ordinary practice, because he has already said that he was aware of the fact that this was a highly contentious matter. Therefore, anything to do with this matter must have been something that he would have looked at with care and responsibility. If Senator Collins did not do that, I am afraid that he is culpable, and the penalty for that has to be paid.

  The history of the whole business of pay TV has been the subject of political whim by the Prime Minister (Mr Keating). The Minister made comments—which Senator Bourne put on the record—which indicated that he was quite aware it was subject to the political whim of the Prime Minister; that he was required to act in this area in ways in which he would not otherwise have acted. But when it finally came to this matter of being required by law, by the Act, to make a determination, the only response he has given here is, firstly, that he was frightened of criticism and, secondly, that he either did not properly ask the advice of his department or he sought advice and did not pay regard to it.

  On two occasions the Minister has stated that he has been `FOIed to death'. Presumably, he is saying to us that all the documentation is on the record. When he was busily talking at the back of the chamber, I said that there were fundamental questions for which we require answers in this chamber. They were: when did he first discuss the determination with his department; when did he establish what precedents existed; and when did he find out that there was to be a departure from the precedent that had previously been followed?

Senator Collins —I didn't.

Senator BISHOP —For him to say that he did not ascertain any of those things simply shows that he was not carrying out his ministerial duty properly and diligently.

Senator Collins —Wait until the inquiry is finished, Senator.

Senator BISHOP —The Minister is referring to the fact that he has set up an in-house inquiry as a sort of whitewash. He thinks that will do. Even Senator Bourne has said that that will not do.

Senator Collins —Senator Bourne didn't say that.

Senator BISHOP —She has said that, indeed, at the end of the day he will be required to answer to this chamber. That is what is required here, and that is why we are so concerned to have the facts of the matter on the record—so that judgments can be made.

  I referred earlier today to the remarks of the Minister's predecessor, Senator Richardson, when he said that he had laid down a model which had been quite substantially changed. I have not been able to get a transcript of his answer because Hansard has not been speedy enough in being able to make that available before we got to have this MPI. The relevant point in what Senator Richardson had to say is that he made it quite clear that he would have done things differently. I would have thought that, in his defence, the Minister would have been able to produce some modicum of discussion that he had with his department that showed why he as a Minister had made a determination that departed from the precedent that had been set down.

  Even if we go back as far as 1989 with regard to tenders for the FM licences, we see that there was a requirement for a bank cheque for $10,000 to accompany the tender documents.

Senator Collins —It later increased to $50,000.

Senator BISHOP —That is a little more than $500. The point is that this whole tender process is dependent on the determination that the Minister makes. Whereas for the MDS licences there was a discretion to be exercised whereby he may choose a price-based system, under the legislation governing satellite licences he had no such discretion and was required to so do.

Senator Collins —You know the legal difference between `shall' and `may'.

Senator BISHOP —I know precisely. `Shall' means that the Minister shall do it; `may' means that he has a discretion. That is the very simple difference. But the point is that, once the Minister exercised the discretion under the MDS licence requirements, there was a provision for five per cent of the tendered price to be paid as a deposit with the tender documents. Where Senator Collins had no such discretion, he let through this fiasco, this farcical situation, of requiring a cheque for $500, which could even have been a personal cheque and did not even need to be a bank cheque.

  As I said at the beginning, the bottom line is that this is a fiasco, and it is a fiasco because of the Minister's incompetence. We have yet to see whether the department is complicit in it. I suppose that we will see some of the evidence when the report of the inquiry that the Minister has established comes out. But the bottom line is that the Minister has failed to exercise his responsibility in a responsible way; he has failed the responsibility that was placed on him when he became a Minister.