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Tuesday, 2 February 2010
Page: 85


Senator BERNARDI (4:44 PM) —I present the report of the Finance and Public Administration References Committee, Independent arbitration of public interest immunity claims, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.


Senator BERNARDI —by leave—I move:

That the Senate take note of the report.

I would like to place on record that I found this a very interesting inquiry. It explored some important concepts which, at first blush, have a certain appeal. The idea around this is basically to have an independent arbiter to determine whether public interest immunity claims which government use to prevent tabling of documents or to resist orders of a parliament, usually an upper house, is a valid process for this place to consider. Indeed, some parliaments have this enacted—in Victoria, in New South Wales and, most recently, in the Australian Capital Territory. It does have an instant appeal because you think it is going to provide increased transparency which will mean that governments will not be able to hide behind what may or may not be spurious claims to withhold information from the transparency of the parliament. Having said that, it was the committee’s view—I note there are some other comments—and my view that the process of an opposition seeking to obtain documents from a government and a government claiming public interest immunity grounds for failing to release the documents is part of the combative cut and thrust of the parliamentary process, and indeed to allow an independent party to assess the validity or veracity of the claims of government may indeed ultimately compromise the operation of the executive. That came out through the process.

We discovered that in some jurisdictions where this process is enacted, and indeed under the proposal put before this chamber for the committee to consider, the independent arbiter who was appointed would not be able to look at the documents in question. So he just has to assess whether the government is telling the truth or not. An opposition can do that just as effectively. That was in the proposal for us to consider

Another aspect of it is that there is simply no meaningful penalty which this place, the Senate, could place on a minister in the other house who fail to comply, short of suspending a member of the government or the executive from this place for a period of time, which is what they have done in Victoria. It really makes it, I would guess, a toothless tiger.

I note in the dissenting report of the Greens—I am sure Senator Ludlam will have some comments on this—and Senator Xenophon, who joined the Greens’ dissenting report, they proposed amendments to amend some of the notable flaws in the proposal which was examined. Once again, I feel that the parliamentary process and the role and responsibility of this place, and the combative nature of politics, ensure a workable executive resolution. They ensure that public interest is served and that, where governments have been exposed as being deficient in providing adequate transparency the parliamentary system, they are held to account.

Other concerns raised were whether there was legal authority for the parliament to delegate certain powers. There was certainly some conflicting information given because Sir Laurence Street, who, I understand, acts as the arbiter on many occasions in New South Wales, considers that he has delegated powers from the New South Wales Legislative Council; whereas, we were advised that it is specifically prohibited for the parliament to delegate powers. So there is an opportunity for a legal dispute. Frankly, I am not sure that our courts or our esteemed legal minds should be determining what is appropriate with the Senate dealing with the executive. I think that can be best resolved through the parliamentary process itself.

There is also the potential for misuse. We heard anecdotal evidence. Indeed, there was a reference toThe Hollowmen—it was described as ‘apocryphal evidence’—that cabinet documents are not able to be subject to this procedure and process. There was some suggestion that simply placing a pile of documents in a wheelbarrow and wheeling it through the cabinet room prevented them from being disclosed in this manner. Other suggestions were that, if in the event documents which were key to the function of government and perhaps commercial-in-confidence may be requested under this process but were of such sensitivity, some of the public servants may indeed be encouraged to provide only verbal advice rather than written advice. Once again the committee considered this an inappropriate avenue for this parliament and the independent advice of the Public Service to take.

In short, as I said before, at first blush, at first glance, at first consideration, while there is an appeal attached to having an independent arbiter, I feel that the proposal that was put for the committee to consider is flawed. I acknowledge that there are some steps and recommendations from the Greens and Senator Xenophon about how that can be improved, but I do believe that on balance it offers a number of potential consequences which are not worth this parliament taking. Clearly, others have a different view. But in the balance of considering that a government needs to be allowed to get on and govern, and an executive needs to have the right balance between accountability and transparency but also confidentiality, it is the committee’s recommendation that this proposal not proceed.

In concluding my remarks, this is my final inquiry as chair of the committee. I thank all of those who participated on the committee. I found it a very interesting inquiry and would also like to thank Stephen Palethorpe and the secretariat for their assistance, and all the witnesses who provided their time and their expertise. Many of them are very highly credentialled and whilst many of them were very supportive of the proposal they outlined a number of flaws in it. Indeed, some of those have been identified by the Greens and Senator Xenophon.