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Wednesday, 25 September 2002
Page: 4834


Senator FAULKNER (Leader of the Opposition in the Senate) (12:59 PM) —Ask any member of the public what really happened in the so-called children overboard affair and chances are that they will tell you. They will tell you that, although the government claimed that asylum seekers had thrown children overboard when the HMAS Adelaide intercepted an Indonesian vessel on 7 October last year, this did not happen at all. They will tell you that the truth did not come out until well after the election on 10 November last year. Many will tell you that they feel lied to and played for mugs. How do so many people know so much about what was, after all, just one of the scores of interceptions of suspected illegal entry vessels which have taken place in our northern waters?

The answer is simple: Labor have exposed the truth about the `children overboard' incident through many hours of questioning at Senate estimates hearings and through even more hours of questioning at the hearings of the Senate Select Committee on a Certain Maritime Incident. We have used the powers of Senate committees to obtain evidence from those involved in the lead-up to the incident, those involved in the incident itself and those involved in its aftermath. Through the processes of the Senate we have laid bare the truth of this affair in minute—some would say excruciating—detail. To do this we have relied on the cooperation and testimony of over 50 witnesses: secretaries of departments, senior public servants, the Chief of the Defence Force, senior officers of the Navy, experts in public administration, journalists and others. This is the true power of Senate committee inquiries—their ability to probe the actions of the government and expose any wrongdoing or maladministration to the public.

While we have a very detailed knowledge of what happened in the `children overboard' affair, we still do not know how far up the government hierarchy the deception extended. We know Peter Reith and his staff were informed of the truth but did nothing to correct the record. We know Peter Reith's staff were instrumental in releasing doctored photos in an effort to prolong the deception of the public and prevent the truth emerging during the election campaign. We know members of the Prime Minister's staff received briefing material which indicated that children had not been thrown overboard. We know that doubts about the veracity of the photos were conveyed directly to the Prime Minister by Peter Reith. We certainly know the Prime Minister did nothing to have these doubts investigated, but we do not know if the Prime Minister himself, or Mr Ruddock for that matter, was actually complicit in the public being deceived about the true facts of this incident until after the election.

The reason we do not know the answers to those questions is the government's persistent refusal to allow key witnesses to give evidence to the Senate select committee. The committee twice invited Mr Miles Jordana from the Prime Minister's office and former Reith staffers Mr Michael Scrafton, Mr Ross Hampton and Mr Peter Hendy to give evidence to the inquiry. Both invitations were refused: on the first occasion by the Prime Minister's Chief of Staff, Mr Sinodinos— who advised the committee that `in accordance with the decision of cabinet, ministerial staff and public servants who were in that category will not appear'—and on the second occasion by the Minister for Defence, Senator Hill. Mr Reith refused three invitations to cooperate with the committee. Senator Hill also prevented Rear Admiral Gates and Ms Liesa Davies, another former Reith staffer, from appearing. We are left to draw our own conclusions about the government's refusal to allow these key witnesses to give evidence. As Mr Howard said on the ABC's AM program on 9 September in relation to Iraq:

People keep talking about evidence. To me the strongest piece of evidence is Iraq's refusal to comply with the United Nations Security Council Resolutions.

By the same logic, Mr Howard's refusal to comply with the requests of the Senate select committee is the strongest piece of evidence that knowledge of the `children overboard' deception reached the very highest level of his government.

Naturally the opposition have considered carefully how we should respond to the government's intransigence. We acknowledge— and this was confirmed in a resolution of the Senate Select Committee on a Certain Maritime Incident—that a Senate committee has the ability to summon witnesses and that those summoned, other than serving members of the House of Representatives, have no immunity from summons. We also acknowledge that both Labor and coalition governments have followed a general practice of not making ministerial staff available for questioning by Senate committees. This practice has rested in part on the doctrine that staffers act only at the direction of ministers and with their explicit knowledge and consent and that they are therefore accountable through ministers' accountability to parliament. It also rests on the doctrine of executive privilege: that in order for minister-staff relationships to function effectively, they must remain confidential. This is similar to the principle of legal professional privilege.

That said, there have been exceptions to this practice. In October 1975, Prime Minister Whitlam agreed to two staffers appearing before a Senate inquiry into the government's handling of South Vietnamese refugees. The Director of the National Media Liaison Service appeared voluntarily in 1989. The only example of a ministerial staffer being compelled to appear by a resolution of the Senate was the appearance of the then Director of the National Media Liaison Service, David Epstein, before a Senate estimates committee in February 1995. While Mr Epstein was employed under the Members of Parliament (Staff) Act, he also headed an agency with a budget of $1.5 million, and it was in that capacity that he was called.

Three former ministers appeared before the Senate Select Committee on Certain Aspects of Foreign Ownership Decisions in Relation to the Print Media in 1994. One appeared and gave evidence voluntarily. The other two appeared following the issuing of summonses. Senate committees have usually proceeded by way of invitation and where, on rare occasions, the invited witnesses have been staffers or former ministers, they have generally—with the three exceptions I have mentioned—appeared voluntarily. In the event of a refusal to appear, a Senate committee can report this to the Senate. It is then open to the Senate to find that a contempt has been committed and impose a penalty of either a prison term or a fine.

Should Labor have sought to have the Senate exercise these powers in order to force the aforementioned witnesses to appear before the Senate Select Committee on a Certain Maritime Incident? I sought advice on precisely this matter from the Clerk of the Senate, Mr Harry Evans, in May this year. Mr Evans expressed the view that summonses should not be issued unless the committee concerned is willing to take substantive action in the event of a default. Ultimately this would mean—on the assumption that the opposition would be able to gain a supporting majority in the Senate—jailing or fining the persons concerned. Does anybody really think the Senate would or should jail or fine anybody, let alone government employees who are prohibited from testifying by decision of cabinet?

Labor's answer to that question was, and remains, a resounding no. We have never sought to use the Senate in this way. We do not want the Senate to be converted into a star chamber. We do not want Senate committees embarking on McCarthyist witch-hunts. We do not want a repeat of 1975, when an unprincipled opposition was prepared to abuse the powers of the Senate to bring down the Whitlam government.

Let me also say that I have never in my parliamentary career voted in favour of summonsing a witness. I have been completely consistent on this. I am strongly opposed to changing the way Senate committees operate. If we start compulsorily hauling witnesses before Senate committees, those committees will become more partisan, much less effective and the Senate as a whole will suffer. The Senate is properly a chamber of review. As I have said, its true power lies in its ability to probe the actions of government through questioning ministers and the public servants who implement those actions, not in its power to jail or fine witnesses who refuse to appear before Senate committees.

The Senate expressed a similar view in 1994, when it declared in a resolution that it would be unfair to penalise officers for failure to comply with a Senate requirement because of instructions to such officers by a minister. Would it be fair to jail or fine staffers Jordana, Scrafton, Hendy and Hampton and let off scot-free the government ministers who instructed them not to appear? Certainly not, in my view. The Clerk of the Senate has also pointed out that any penalties imposed by the Senate would probably be challenged in the courts. The government would probably indemnify the defaulters, so the cost of the court proceedings would be borne by the taxpayer. The Clerk has made the further point that the law of parliamentary power in practice works very well against the ordinary citizen, where it is not needed, given that ordinary citizens are generally only too willing to put their case to Senate committees, but is less effective against the great and the powerful— governments being the greatest and the most powerful of all. Of course, that is where it is needed.

This is why the opposition decided on an alternative response to the government's intransigence. We proposed the appointment of an appropriately qualified independent assessor to assess all the evidence obtained by the select committee and formulate findings which the committee could make in respect of the roles played by those who declined to respond to the invitation of the committee. The Clerk of the Senate expressed the view that this course of action `is preferable to summonsing the persons concerned and imposing penalties for default'. He considered that `there is no alternative course of action ... which is likely to bring the committee and the Senate closer to discovering the truth about the subject matters of its inquiry'.

It remains a matter of great concern to the opposition that the government, which initially promised full cooperation with the Senate select committee inquiry, refused to allow key witnesses to give testimony. In the course of the inquiry there were numerous editorials and articles criticising the way ministerial advisers had intruded inappropriately into the Department of Defence and the operational chain of command. Ministers neither took responsibility for these actions themselves nor permitted the staffers concerned to be held to account. The doctrine of staff being accountable through their ministers to parliament has clearly outlived its use-by date. It needs to be revisited.

Similarly, the blanket application of the principle of executive privilege to the relationship of ministers with their staff also needs to be re-examined. What has emerged in the `children overboard' inquiry is a very serious failure of public administration, which, in the heightened political atmosphere of an election campaign, has resulted in the public being deceived in relation to the most sensitive political issue in that election campaign. You have to ask: in these circumstances, is it appropriate that the government be permitted to hide behind the principle of executive privilege?

Public administration experts who appeared before the select committee expressed concerns about the lack of accountability of ministerial staff. They called for a substantial revision of the framework under which they are employed. Some have called for advisers to be more directly accountable to parliament in ways similar to public servants. For our part, I can say that Labor share those concerns and that, in the near future, we will be moving to establish such a review.