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Tuesday, 17 March 1987
Page: 828


Senator MACKLIN(9.55) —Tonight we are debating three propositions with regard to pecuniary interests. The Australian Democrats have always supported the declaration of pecuniary interests, not only within the parliamentary structure but also, where it is pertinent, outside, for example with regard to the electoral Acts and the declaration of the interests that people have in terms of the donation of money to political parties and to election campaigns. However, we do have quite a number of concerns with these amendments. I propose to go through the types of concerns that we have as to the operation of how this declaration of pecuniary interests is to be carried out because I think there are problems with the suggestions that are put here.

The types of problems I wish to raise tonight are not new. They have been raised in the various debates that we have had to date. I acknowledge the difficulty that Senator Button has had, particularly in the way that these various proposals have been referred backwards and forwards through the Standing Orders Committee and the difficulty of actually coming up with a set of proposals. My assumption has been that in the moving of these particular motions Senator Button was seeking to open the debate and was not necessarily averse to changes if in fact the changes could be seen to be beneficial and would make a system of declaration of pecuniary interests workable and effective. I took the comments that he made just now in fact to refer to that.

I will go through some of the problems that we have with this. First, paragraph 1 (1) (b) states:

the registrable interests of which the senator is aware (i) of the Senator's spouse; . . .

That immediately raises the problem here of under what heading should the senator's spouse actually have to declare anything? When one raises the issue of the declaration of pecuniary interests one obviously is talking about the necessity for an elected member of parliament to declare his interests; that is, those interests which an elected member of parliament has that might be seen to raise a conflict of interest. I understood Senator Button to make a distinction between a pecuniary interest and a conflict of interest. He was emphasising the conflict of interest that a person may have in terms of speaking in a debate or, more particularly and more importantly, in terms of voting; that is, a person may be voting in a way that advantages him. It does seem to the Australian Democrats that the electorate is entitled to know, when a person votes or speaks, what that person's interests might be in the affair if they are interests such as could be seen to influence him in some way.

However, the senator's spouse, or the spouse of the member of the House of Representatives, is not in fact elected to parliament and does not stand for election. As an example, my wife said to me: `Look, I have never stood for public office. I have no intention of standing for public office. I do not see why my particular interests ought to be disclosed.' Conflict immediately comes in when that point is raised. I believe it is a very valid point, and we ought to consider it seriously. My wife is not in business-she is at home looking after our children-but there are many senators and members of the House of Representatives whose wives or husbands are in business of their own, in a commercial operation, and they may not wish to have those particular interests disclosed. In fact it may be considerably commercially disadvantageous to have certain of those interests disclosed. Leaving that issue aside, what about the issue of the senator or member who may move his interests in some way into the hands of his spouse for the purpose of avoiding disclosure? There is immediately a problem of getting this operationalised in an effective way.

Another issue that I raise relates to spouses. Senator Harradine is not here at the moment, but we all know that we have had a series of debates in this place about de facto spouses. I imagine that Senator Harradine will be in here shortly with my having raised that issue. It is an important issue. Various legislation recognises de facto arrangements. A de facto relationship is normally defined in legislation as a continuing operation, a continuing relationship, which is of a permanent nature. Under those circumstances, surely if such a person is eligible for various benefits from government or covered under a variety of taxation measures-de factos are recognised in legislation on both of those issues-it would be as possible and as likely, if a de facto relationship is seen as a permanent relationship, for a senator or a member of the House of Representatives to move his pecuniary interests into the hands of his de facto spouse as easily as into the hands of a spouse and thereby avoid this item. But, while a spouse is mentioned, a de facto is not. So again there is a loophole, an inconsistency, that arises with the practical application of this measure.

I am particularly concerned that a spouse may be disadvantaged commercially. This has not been addressed here but I believe that it should be addressed. There are means by which it could be addressed. I believe that the various members' spouses and senators' spouses who have spoken out publicly on this matter have spoken out on a position of principle. They are not accountable to the general electorate and I do not believe that they should be held accountable to the general electorate. Sometimes spouses do not acquiesce with good grace to their spouses going into public life. In many cases they would be quite happy if their spouses were not in public life because of the problems that that gives them and their families. I do not believe that they should be lumbered with an additional burden which is not of their making, which is not of their choosing and which could be a major detriment to them. That has not been addressed here and I believe it should be addressed before we proceed with this item.

Likewise, children are not defined. I presume that `children' means the offspring of a senator or member, but that is not defined. What does it mean? I will move a motion at a later stage to see whether we can get some answers. I will seek leave to move that further consideration of these matters be undertaken in Committee so that we can get some toing and froing and more specificity on this. To me, the normal definition of child is an offspring of no relevant age. Quite frankly, I think this is extraordinary. I presume it means a dependant, not a child. A dependant is different from a child. I would like to know what definition is used of children. For example, under a perfectly acceptable Oxford dictionary definition of `child', I am a child of my parents, regardless of my age. Age is not incorporated into the normal definition of `child'. I believe we should be referring to dependants, not children. The problem may not arise with dependants. However, there are some problems. Let us not forget that, if we are talking about children, we must know whether we are necessarily talking about natural children or adopted children, or as some senators and members have, foster children.


Senator Newman —The children of the household.


Senator MACKLIN —Senator Newman refers to them as the children of the household; yes. I imagine all honourable senators know that some senators and members are indeed supporting and looking after people in their families who are not their natural children, foster children or adopted children. We need some clarification of that item. Quite frankly, I do not believe that a child who is an adult ought to be caught up in this operation for the same reasons that I gave relating to spouses. I believe it is an imposition on someone who has never sought public office, is not in public office and who therefore ought not to have to bear those types of impositions of public office. I am quite happy for those in public office to bear them but I do not believe that those who are not in public office should have to bear them.

Paragraph 1 (2) is a matter of some interest in relation to the previous debate that we had on the matter of privilege in that it relates to how we deal with somebody who knowingly makes a false statement. Presumably we will have to work out whether the person knew or did not know about the matters involved. Let us not forget that this relates not only to what members or senators did not know in terms of the statement of registrable interests to the Registrar of Senators' Interests but also to matters included under paragraph 4. I presume that Senator Button is looking at those items that appear under paragraph 4 to be included under paragraph 1 (2) (c), that is, that `knowingly provides false or misleading information to the Registrar of Senators' Interests' would indeed cover those items in terms of a declaration of interest in debate and other proceedings.


Senator Button —Yes.


Senator MACKLIN —Right. If that is the case, we have a very real problem, as I will try to suggest when we get to paragraph 4, with the normal operations of this chamber. Indeed, any senator who fails to comply with those provisions `shall be guilty of a serious contempt of the Senate and shall be dealt with by the Senate accordingly'. Quite frankly, a serious contempt of the Senate is a pretty high misdemeanour. As I have seen in the various operations of the Privileges Committee over the years in terms of the Senate, when the Senate finally winds itself up to state that something is in serious contempt, that presents great difficulties. The Senate does not often get to the point of saying that something is seriously in contempt. Generally it says that there is contempt. But some of the matters are very important. For example, one Privileges Committee report stated that something was in mere contempt in terms of disclosing information prior to a report coming into the Senate. It said that the provision of information that had been heard in camera by a committee of the Senate was mere contempt. But we are not talking about those matters, which to my mind were pretty serious infringements of the privileges of the Senate. Here we are talking about a serious contempt, so it is pretty heavy stuff. I am not at all sure what is intended by that. I believe it is fair to honourable senators that we spell out in more detail what we mean by a serious contempt. Honourable senators ought to know what they are up for in terms of suspension or fines. If the Parliamentary Privileges Bill that we have just debated is accepted by the other place, we will have in legislative form some spelling out of these items, but not in sufficient detail. Considering the debate that we have just had, it would be fair and reasonable to spell out in detail what those items might be.

I now move on to paragraph 2, headed `registrable interests'. I do not wish to deal with this in detail at the moment. Most of the provisions are self-explanatory. However, I find the inclusion of some of them rather questionable. For example sub-paragraph (xii) refers to `any sponsored travel or hospitality received'. I believe that is an extraordinarily wide definition. I suppose sponsored travel could be seen as an air fare for which we would probably have a ticket, or something of that sort. Quite frankly, the next point `any hospitality received' really bowled me over. I really believe that the soup that I once provided to Senator Button ought not to have to be disclosed. The thing is a farce if in fact that is what we--


Senator Button —We used a long spoon, I think.


Senator MACKLIN —Yes, I remember that. I think we really ought to do a little tidying up on the whole notion of hospitality received. Goodness gracious! We may go out to friends. Last Saturday evening my daughter had a birthday party at my parents-in-law. My father-in-law is a pharmacist. In the course of conversation we discussed pharmacy matters. People tend to discuss politics or pharmacy or whatever their professions are. We discussed some matters bearing on some legislative operations that will come up later in the session. Could it be construed that I was being offered hospitality with a view to lobbying me about items that would be raised later in the session? That is a farce but it could be construed in that way. It was hospitality received, but the hospitality I received related to my daughter's birthday. Those other matters were incidental. I do not want something on the books that will be so wide open to possible abuse or so wide open that those people who wish to make a correct declaration will wonder whether any hospitality should be declared or only hospitality worth more than $100, $200 or whatever. I think we can specify such things. It is a simple matter. It should be specified rather than having the very odd requirement concerning `hospitality received'.

In (xiii) is a reference to membership of any organisation. It is not said whether the organisation is incorporated or otherwise. Again I suggest that that is an utter farce. A whole host of organisations incidentally receive funds from government. Again I use a purely personal example, because I think that this is the type of thing that every senator has to look at in his own personal life. I belong to a local scouting group. Scouts actually receive tax deductibility as a charity under the Income Tax Assessment Act. Hence there is a possibility that when we deal with a taxation Act in this chamber it could involve that organisation. We have only a small group. We are still struggling to get along. We have just established a new den. This whole thing is a farce. What type of organisations are we talking about? We should specify those organisations. Having the requirements in relation to `any organisation' will clutter up the Register with a whole host of incidental, non-important matters which could not possibly have a bearing on any legislation. However, the declaration requires that any organisation be stated because there could possibly be the remotest conflict of interest-a conflict of interest that could not possibly have any bearing ultimately on how one would vote, or not vote.

I jump quickly to No. 4. I wish to refer to some matters under No. 3 but I hope I will be able to go back to those at a later stage. No. 4 is headed `Declaration of interest in debate and other proceedings'. This is a matter that I feel will get very difficult for many back bench members of parliament. I do not know whether they have actually looked at this. There are not many in the chamber tonight. I hope those who are not in the chamber will look at the Notice Paper to look at Notice of Motion No. 3 under the name of the Leader of the Government in the Senate (Senator Button). They are about to be hit with a requirement which will be pretty onerous for most back benchers. I single them out and I think people will understand why shortly. The requirement reads:

(i) at the beginning of his or her speech if the Senator should participate in debate in the Senate, Committee of the whole Senate, or a Committee of the Senate. . .

Senators may be dealing with an item in a debate in any of those categories. People may say that that is fair enough and that if someone contributes to a debate he knows what it is about. That is a question mark at the best of times.


Senator Robertson —That is not always the case.


Senator MACKLIN —Yes, I was about to qualify that. I think we could readily agree that they ought to know and if they do not it is their problem. They ought to know what the Bill is about and if they speak in the Committee of the Whole they ought to be conversant with its various clauses. However, the next requirement reads:

(ii) as soon as practicable after a Division is called for in the Senate, Committee of the whole Senate, or a Committee of the Senate . . . if the Senator proposes to vote in that Division-

I ask honourable senators to ponder on that. Let us take the case of a Government member. Being in government, he will have many things on his plate. He may be chairman of a committee. The division bells may ring and as a dutiful Government member he will come into the chamber and vote with the Government. However, we all know that some honourable senators would be hard pressed to know precisely what it is that they are voting about.


Senator Elstob —Oh, come on!


Senator Colston —Come on!


Senator MACKLIN —I am sorry to offend the sensibility of honourable senators on the Government side. Perhaps I should refer to the Opposition. I seem to be upsetting honourable senators on the Government side. I am putting the position very mildly. Some honourable senators might not be totally up with what is happening at the moment.


Senator Newman —I thought that was a Democrats problem.


Senator MACKLIN —No, I exclude the Democrats because we are the only ones who have to know what we are voting on. The back benchers are not called upon to know what the legislation is. That goes for members on the back benches of all political parties in this place. I believe it would not be a way of getting out of the problem for an honourable senator to say that he did not know what he was voting on when he came into the chamber to vote. To be guilty of a serious contempt, an honourable senator must act knowingly. I do not believe that an honourable senator could argue that he did not know what he was voting about in this place. I do not believe that would be acceptable either politically--


Senator Colston —It would not be acceptable to their constituents.


Senator MACKLIN —That is right; it would not be accepted politically. I do not even think it would be acceptable in a reasonable debate about what a senator's duty is when he is voting and what constitutes a vote in this place. But let us look even further. The requirement also refers to a vote in the Committee of the Whole. I raise the question of a vote on omnibus Bills that we discuss here now and again. Such Bills make changes to many pieces of legislation. Senator Vigor might be able to tell me how many pieces of legislation were changed by the last Bill of miscellaneous amendments. Hundreds of items dealing with hundreds of pieces of legislation are dealt with in an omnibus Bill. They are little bits and pieces, but as I had a chance to say on the last such Bill that came through this place, some of them are not small; some of them are quite important changes of principle that have crept into such Bills. I have stated that the next time such a Bill is introduced we will not accept on face value that it is merely tidying up and we will seek a long, extensive debate in Committee, probably clause by clause, if that occurs again. The convention on such Bills was that they were tidying up Bills. We have fired that shot across the bows and we expect that it will be heeded. Such Bills which have been introduced up to date have dealt with hundreds of items. There is no way in the world when such a Bill is dealt with in the Committee of the Whole and there is a vote at the end that any honourable senator-I am not talking just about back benchers-could know the ramifications of all the changes. I do not know how other parties deal with the matter but the Democrats deal with those Bills by asking the people who have responsibility for various portfolio areas to look at the legislation which is under their charge and to bring to the party room any concerns that they have about those items. It is an awful lot of work both on our part and on the part of our staff to go through the Bills. Quite frankly, we would prefer not to have to do that but at least we do get a general overview of the Bill at our party meeting. I am not sure that that occurs in the other party meetings or Caucus meetings, given the larger numbers of senators who are inveigled in those meetings.

I am not trying to score points off anybody. I am talking about the normal practical operation of this chamber and of the parties that meet in this chamber. That is what I thought we were about in this debate. If people think that I am scoring points, I am not trying to score any. I am just trying to say that that is the way we operate. Let us not put through a motion tonight which will not operate in a way that can be dealt with in a conscientious fashion by every honourable senator. I do not believe that motion No. 4 can be dealt with conscientiously by every honourable senator. Given the enormous amount of legislation with which we have to deal and all the other matters with which members have to deal, whether they are back bench members, shadow Cabinet Ministers or Cabinet Ministers, I do not believe that they can conscientiously support those ways of applying the principle. I again ask that we have some further thoughts on this matter. As I flagged at the beginning of my speech, I now seek leave to move a motion with regard to how we might consider this debate further.

Leave granted.


Senator MACKLIN —I move:

That the Senate resolve itself into Committee of the Whole for the consideration of the motion 3.

I believe that if the motion is carried we will have a better chance of dealing with the various items that are contained in these complex motions and ensuring that as we do so we are not passing any item that would be unable to be carried out by any honourable senator in a conscientious and reasonable manner. I am quite sure that Government and Opposition senators are seeking to ensure that any motion passed on these matters will be such as can be carried out by any honourable senator. If we do not go into the Committee of the Whole, I believe that we will have a great deal of difficulty making sure that each of the items is worked over thoroughly, conscientiously and effectively.