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Thursday, 12 May 1994
Page: 741

Senator COONEY (12.01 p.m.) —The aim of the motion is commendable. I have listened with interest to what has been said by various speakers; but it seems to me that what is proposed will not solve the problem that is faced—because the problem is political. It concerns the ability of the executive to frustrate the legislature versus the ability of the legislature to get from the executive what it considers it needs. So there is a political clash, not a legal one.

  I am interested to know what relevance Mr Jackson's opinion has as legal counsel. I would have thought the sort of opinion we need in this issue is not that from legal counsel but from someone like our clerk, if I might say so with respect, who would have a much greater idea of what is involved than would legal counsel.

Senator Kernot —Your members would not accept that that was enough.

Senator COONEY —In the end, what the clerk or lawyer gives is advice. That advice is not definitive; it is either effective or not effective depending on what the senators decide. The senators are the ones who make the decision. It is wrong in my view for senators simply to adopt the opinion given by legal counsel, or the clerk for that matter, simply because it is given. Senators must come to some conclusion about the issue they face. Then they must use their political powers to enforce it.

  If people do not have the political will, drive or power to get what they want, they will not get it and will have to wait for the next occasion, when their chances may be greater and what they do may be better answered. Subparagraph (1)(h)(i) of the motion on the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill 1994, introduced in the Senate by Senator Kernot on 23 March 1994, provides:

the enforcement by the Federal Court of the lawful orders of the Senate and its committees, particularly orders for the production of information and documents.

I cannot imagine a Federal Court being happy about entering into the political give and take of this place to enforce its orders above and beyond what parliament does. I would have thought that, if that were carried, it could be successfully challenged on the basis that that subclause tries to raise a Federal Court above the parliament. The Federal Court is a creature of this parliament, and it seems to me to be a most absurd proposition that a creature of this parliament should be placed in a position to enforce the orders of the body that created it. I do not see how it can get any greater power than this parliament has. I would have thought there was some real concern about that. Subparagraph (h)(ii) of the motion states:

avoidance of any imposition of a penalty on a public servant for acting under the directions of a minister . . .

There may be some occasions where we would want to impose a penalty on a public servant, even though he or she is acting under the direction of a minister. It might not be a severe penalty, but there are certainly occasions when we might want to do that. Subparagraph (h)(iii) states:

the adjudication and determination by the Court of any claim of executive privilege or public interest immunity, through the examination of the disputed evidence or documents by the Court.

Again, it seems to me to be creating a most absurd situation where a court—the creature of this parliament—determines the processes by which this parliament will operate. The way out of this, if we want something done and the courts to do it, is to refer that issue to a royal commission or a judicial committee, or some sort of body like that, to inquire into and decide on the proposition that is put. But I do not think that, once the Senate undertakes a task, we can have the courts coming in and, as it were, exerting more power than the Senate can. Paragraph (2) of the motion states:

The Senate refers to the Committee of Privileges, for inquiry and report by 23 August 1994, the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill 1994, and requires the committee to give particular attention to the effectiveness of the bill in providing a solution to the problems set out in this resolution.

Again, I have great admiration for the Committee of Privileges, but it cannot raise itself above the Senate either. It is a creature of the Senate. No matter what is decided by the privileges committee, we are going to get argument back and forth in this chamber. It seems to me that the proposition set out in paragraph (2) does not necessarily—and I think in reality would not—advance the settlement of this problem. Paragraph (3) states:

For the purposes of the committee's inquiry into the bill, a senator nominated by the Leader of the Australian Democrats be added to the membership of the Committee of Privileges . . .

That seems to me to be eminently sensible and eminently fair. Senator Kernot is suggesting a series of propositions. In spite of the good intent and the, on the face of it, sensible attempt to get around the problems, we are faced with the difficulty that, in the end, it comes back to the political give and take between the parties in this chamber. Even though we go through this exercise, unless the talking convinces people of the political reasonableness of Senator Kernot's propositions, in the end she is not going to get terribly far with this motion. Paragraph (4) states:

The Select Committee on Foreign Ownership Decisions in Relation to the Print Media present its first report by 9 June 1994, and the committee present a final report by 22 September 1994; and during the period from 9 June to the day on which the committee presents its final report the committee be provided with, and use, the minimum resources required for giving effect to this resolution.

From what I have heard in the debate so far, I take it that Senator Kernot hopes that the propositions that arise out of the inquiry and the reference to the Standing Committee of Privileges will enable us to use the proposals in the fourth proposition. The difficulty with that in my view is that we will not get agreement in the light of the political problems that surround the print media inquiry. I am not sure how Senator Kernot sees that propositions 1, 2 and 3 help her deal with proposition 4.

  The exercise we go through will be a useful exercise, no doubt, in clarifying issues, but in the end it will not come to any binding decision on the political parties in this chamber. Clearly, it cannot; clearly, the court cannot rise above the parliament; clearly, the committee of privileges cannot do that. I would be interested to know just how the propositions put forward in Nos 1, 2 and 3 will help, given the fact that these issues have already been debated without any success.