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Monday, 14 March 2005
Page: 68


Senator FAULKNER (4:55 PM) —I too wish to speak about the extraordinary and unprecedented situation that was faced in the Senate Foreign Affairs, Defence and Trade Legislation Committee’s estimates hearing just a couple of weeks ago. As Senator Evans has said, what we face here is a very important issue of principle that has been established in this chamber and in Senate committees for a very long period of time—the well-established principle that departmental officers cannot pick and choose which questions they are going to answer and which questions they are not going to answer. That is what is at stake here.

We in the opposition argue, and I think argue very persuasively, that the accountability of the government to the parliament is a crucial part of the checks and balances of our system of democracy. Is there anything more important? Senate estimates committees play a very important role in that accountability. I happen to think that the Senate estimates committee system is the best accountability mechanism that this parliament has. Only the most significant of reasons can justify denying a Senate committee information. The only reason not to answer a question is that it is against the public interest for that information to put into the public domain.

What was the excuse given in this case for a departmental officer to not answer a question asked of him? What was the reason for refusing to answer the question? I will quote directly from the Senate estimates Hansard. Senator Hill said:

The witness feels uncomfortable about communicating the form of advice that he gave.

I asked:

Why would that be?

Senator Hill said:

I am not sure why, but if he feels uncomfortable—

Then Senator Hill went on to say:

If he feels uncomfortable in doing that then I do not think he should at the moment disclose any further.

That is a new reason. It is totally unprecedented in the history of Senate committees for a witness not to come forward and provide a reasonable answer to a reasonable question asked of him. I hold Senator Hill responsible for this; I do not hold the officer responsible.

If Senator Hill thinks it is reasonable for an officer at the table to refuse to answer a question if he or she feels uncomfortable at the time, then the mind reels about what is going to occur in the future. How many questions would not have been answered in the past if an officer felt uncomfortable about answering them? How often would we never have received an answer? It would happen time and time again if that were a legitimate reason to refuse to provide the most basic information to a Senate committee.

Let us look at the particular question that the officer felt uncomfortable about. It was about a method of communication between a department and the minister’s office—not the substance of the advice, but how it was communicated. Was it done by phone, email or fax? I even suggested in the estimates hearing it might have been by carrier pigeon! That was the issue at question that this officer refused to answer because he felt uncomfortable. And of course Senator Hill—the master of the political cover-up, the master of lack of transparency—backed him up, as you would expect. This was not an issue about advice to ministers. It was not an issue about the content of the communication.

On this issue itself, the officer was happy to answer such questions before the lunchbreak in the estimates committee but, for some reason, after the lunchbreak—after Mr Downer had got his arm and twisted it up his back, after Senator Hill had had the heavy roller run backwards and forwards over him by Mr Downer and the Prime Minister, Mr Howard—the officer felt uncomfortable. What a pathetic reason to provide and what a pathetic thing for the Leader of the Government in the Senate, Senator Hill, to back that excuse up. He made no pretence of commercial-in-confidence or cabinet-in-confidence, which poor old Senator Sandy Macdonald tried to run up as an excuse. He did not know what he was talking about, of course. How could it be commercial-in-confidence? How could be cabinet-in-confidence? Then he got so desperate that he just said, ‘Oh, well, it’s in confidence.’ Any port in a storm! The real bottom line is that, uncomfortable or not, an officer is required to answer a reasonable question like this, and if there is any doubt the minister must require him or her to answer the question. That is the key principle. Only public interest can justify refusal to answer, and such public interest arguments must be made to the committee for the committee and then the Senate to determine whether any immunity applies.

I commend to the Senate the three principles that you see outlined at the conclusion of the Labor senators’ reservations, which are appended to this report that has been tabled today. I commend them to the Senate. Listen to them. The first principle is:

(a)   ministers and officers do not have a discretion to decline to answer relevant questions;

That is a longstanding principle in this place—breached, broken and ignored by Senator Hill and the Howard government. The second principle is:

(b)   any refusal to answer a relevant question should be made by a minister on the basis of a properly advanced claim of public interest immunity based on specified grounds;

Again, this was ignored, rejected and treated with contempt by Senator Hill and his cronies. The third principle is:

(c)   it is for the committee in the first instance and the Senate ultimately to consider whether a properly advanced claim of public interest immunity is to be sustained.

Again, this was completely ignored by Senator Hill and completely ignored by the government in this instance.

Senator Evans is probably right when he says, ‘Get used to it.’ This is probably going to become standard operating procedure for this arrogant government, particularly after 1 July. It is arrogance. It is a real ‘up you’ attitude from Senator Hill, throwing out the door principles that have historically applied under governments of both political persuasions in this place—fundamental principles of accountability and fundamental issues of transparency. They are important principles. They are worth defending. So, as Senator Evans has said, when they are breached we will come into this place and we will expose the government and the responsible ministers. In this case, it is Senator Hill in his typical cover-up mode. That is his standard operating procedure, and he stands condemned for it on this occasion.

Question agreed to.