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Wednesday, 25 September 2002
Page: 4845


Senator ROBERT RAY (1:39 PM) —Some journalists allege that, in failing to support demands that former ministers and ministerial staff be compelled to attend Senate select committees, the Labor Party were protecting themselves into the future. Nothing could be further from the truth. We are honouring the position that we have taken in the past. On this issue, the Labor Party have been consistent. On this issue, the Liberal Party have evinced their usual double standards. In opposition, they demanded the attendance of former ministers and ministerial staff. In government, they take a diametrically opposite view. What quintessential hypocrites they are!

Both the Clerk of the Senate and the Clerk of the House of Representatives agree that current members of either house are immune from summons to appear before the other or its committees, although they disagree on the basis of that immunity. The Clerk of the Senate, Mr Evans, has argued that the immunity is based on the requirement that there be comity between the two houses of parliament. If the power were to exist for either house to summon members of the other, the practice could destroy the parliament's ability to function. As Mr Evans points out, the immunity is recognised in the Senate, where the rules require that a message be sent to the House of Representatives if the Senate or its committees require evidence of a member.

The Clerk of the House of Representatives, Mr Harris, has argued that the basis of the immunity rests not on established conventions or the need for comity between the houses but on constitutional grounds establishing the complete independence of the houses from each other. Specifically, Mr Harris points to sections 49 and 50 of the Constitution, which allow each house to determine its own rules and orders. The Clerk of the House may well be correct in asserting that the immunity is a legal one based on the Constitution. The fact remains, however—as Mr Evans rightly points out—that there are no legal precedents establishing that the bicameral nature of the legislature confers a legal immunity on members of parliament allowing them to avoid a summons to appear before the other house.

There is a very clear political imperative to ensure that the parliament does not descend into chaos through the summonsing of members of one house to appear before the other house or its committees of inquiry. This type of immunity also extends to members of state parliaments, because of the obvious need for comity between Commonwealth and state governments. The High Court has held that the Commonwealth may not interfere in the vital functions of the states, so there is probably a legal immunity as well.

The `children overboard' affair raised the question of whether former ministers who had been members of the House of Representatives could be called before a Senate committee—namely, the Senate Select Committee on a Certain Maritime Incident. In that case, former defence minister Peter Reith sought advice from the Clerk of the House of Representatives as to whether he should appear before the committee. The Clerk's view was that the immunity enjoyed by members of one house being summonsed by the other continued even though the member had left the parliament.

Mr Harris's view is not supported by either historical or legal precedents; in fact, the historical precedents directly contradict his view. In 1994 the Senate Select Committee on the Print Media called two former treasurers, Mr Dawkins and Mr Kerin, and a former Prime Minister, Mr Hawke, to give evidence at its hearings. Mr Dawkins attended voluntarily, but Mr Hawke and Mr Kerin attended only after a summons had been issued. Just a few years later, the Liberal Party has done a backflip on the calling of former ministers and, even worse, has directed departments not to make submissions to a select committee. This is sleazy opportunism at its worst.

The Senate inquiry into the `children overboard' affair and the Victorian Legislative Council inquiry into the appointment of the managing director of the Urban and Regional Land Corporation serve to highlight the point that the executive arm of government is generally inclined to withhold information from the legislature. Both Labor and coalition governments have stood by the argument that ministerial advisers should not be required to give evidence to parliamentary committees because their ministers are accountable to parliament. However, the `children overboard' affair highlights the fact that the duties of ministerial advisers are no longer confined to advice and personal assistance and that advisers have increasingly exercised delegated executive authority. In the `children overboard' affair, as my colleague Senator Faulkner has written:

... we have even seen staff inserting themselves in the Defence chain of command and, according to witnesses, abusing defence personnel, making direct demands of public servants and generally exercising power in the name of, but not necessarily with the authority of, the minister.

This point is backed up more generally by the Clerk of the Senate, Mr Evans, in his advice on the question of calling ministerial advisers to the Select Committee on a Certain Maritime Incident. According to Mr Evans:

Ministerial staff are said to and seen to:

Control access to ministers, and determine who has that access

Determine the flow of information which reaches ministers, particularly information flow from departments and agencies

Control and regulate contact between ministers and other ministers, other members of the Parliament and departments and agencies

Make decisions on behalf of ministers

Give directions about government activities and actions, including directions to departments and agencies

Manage media perceptions and reporting.

The fact of the matter is that no immunity exists to prevent advisers from appearing before parliamentary committees other than a tradition reinforced by Senate experience. In the `children overboard' affair, both the Prime Minister and his former Minister for Defence blamed ministerial staff for not passing on information at critical times. The Westminster conventions of responsible government would have required that they take full responsibility for the incompetence of their staff, possibly followed by resignation. That they chose not to do so indicates that the buck no longer stops with ministers and that staff should be open to questioning by appropriate committees of parliament.

In Britain, the Transport, Local Government and the Regions Committee recently asserted the right of the House of Commons to compel ministerial advisers to come before its committees. Lord Birt was personally appointed by Prime Minister Blair as an unpaid adviser, to provide long-term strategic analysis on transport issues. Lord Birt's work was conducted out of the Prime Minister's Forward Strategy Unit, which sits at 10 Downing Street. The number of staff employed by the unit is said to have grown considerably during the current PM's tenure, and it consists of three main sections: communications and strategy, government and political relations, and policy and government. Effectively a Prime Minister's department, the unit has significant contact with the civil service with respect to policy formulation.

In December 2001, the Transport, Local Government and the Regions Committee announced its inquiry into the review of the government's 10-year plan for transport. The committee called Lord Birt to give evidence on the government's transport policy, particularly its objectives and the analysis underpinning it. Civil servants had given evidence that Lord Birt's work was taking up a considerable amount of departmental time, and the committee believed that his evidence would be relevant to the review. The Prime Minister's office barred Lord Birt from giving evidence by saying that advisers should not appear before select committees because, amongst other things, their appearance would undermine the system of cabinet government, the advice given by advisers to ministers should be confidential, and a requirement to appear would discourage individuals from taking up adviser positions— very familiar arguments. Ultimately, the committee asserted its right to call advisers and its power to summon recalcitrant witnesses but in this instance chose not to exercise that power, because Lord Birt was a member of the House of Lords.

Interestingly, the committee had something to say about the convention that members of one house cannot be summonsed to appear before the other. It appears that the Prime Minister's Forward Strategy Unit employs—at no pay, I stress—a number of members of the House of Lords. The committee stated that it was inappropriate for advisers to take advantage of a convention that was established for different circumstances in order to avoid giving evidence at committees. The committee recommended that the Procedure Committee consider whether the convention should be modified to prevent members of the House of Lords who are government advisers from refusing to appear before select committees. Although this situation would be constitutionally impossible in Australia, it is worth reflecting that even the House of Commons, the birthplace of our parliamentary conventions, is willing to reconsider those conventions to suit modern circumstances.

As a product of a parliamentary system, I cannot leave this discussion without making at least one salient partisan observation. As I said earlier, both federal Labor and coalition governments have sought to claim immunity for ministerial advisers. The difference between them, however, is that Labor has held a consistent view on this issue both in government and in opposition. In 1995, for example, Mr David Epstein, the head of the government's National Media Liaison Service, appeared before the Senate Finance and Public Administration Legislation Committee. The Minister for Finance had initially refused to allow him to appear but relented following a Senate resolution directing Mr Epstein to do so. The Senate resolution at that time was carried by coalition members now in government, in combination with the Australian Democrats.

During the `children overboard' hearings, the Prime Minister categorically banned three advisers involved in the affair from giving evidence to the Senate committee and would have continued the ban, Senate resolutions notwithstanding. The Labor Party did not seek to pass resolutions, as the Liberals did in 1995, or issue subpoenas compelling the advisers to appear before the Senate committee. Issuing subpoenas and possibly fining or jailing recalcitrant witnesses would result in prolonged and expensive legal battles. Instead, we have opted for a more innovative approach that will see an independent assessor compile a list of questions for the advisers to answer on the basis of available evidence.

The Government Members Secretariat is an interesting case study. Initially there was ministerial responsibility for it at, let us say, estimates committees. When scrutiny became too difficult for this government, it was moved to the Chief Whip's office. No minister will now answer for its behaviour. The only questions to be answered are those of the resourcing of the secretariat, and no questions can be asked as to its role, behaviour and activity. The point being that, according to this government, staffers do not appear before Senate committees because there is ministerial responsibility. This government has stripped these 10 employees of ministerial responsibility. They no longer have the slightest protection from being called to Senate committees, and we intend to call them in the immediate future or have a minister be responsible for them. That is the government's choice. As I said, they cannot hide behind the device that the Chief Whip's office is in the House of Representatives and we do not look at House of Representatives business. They were deliberately moved there to hide them from scrutiny, so the past conventions do not apply in those cases where they are maliciously and malignantly applied in the way they have been.

A recent study by Maria Maley of the ANU's Research School of Social Sciences has shown that resources to ministers have grown significantly over the last 30 years, as has the number of ministerial advisers. In 1983, for example, the Hawke government's 27 ministers had 95 advisers, as against 152 advisers for the Howard government's 30 ministers. In 1983, The Hawke government had 165 ministerial staff members; currently this government has 374. With this growth of staff and with the changing roles of staff, you cannot say that they cannot appear before parliamentary committees, unless ministers take total responsibility. This issue has to be looked at into the future. You cannot have people exercising executive powers, delegated by inference or directly by a minister, and not have them accountable to the parliament. That is just not possible. But at least we will be consistent on it. You can always rely on the Liberal Party to act one way in opposition and then, the moment they get into government, reverse 180 degrees—because they believe they were born to rule.

Sitting suspended from 1.54 p.m. to 2.00 p.m.