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Thursday, 12 May 1994
Page: 718

Senator KERNOT (Leader of the Australian Democrats) (10.06 a.m.) —I move:


  (1)The Senate notes that:

    (a)on several recent occasions the government has failed to comply with orders and requests of the Senate and its committees for documents and information, in particular:

      (i)the order of the Senate of 16 December 1993 concerning communications between ministers on woodchip export licences,

      (ii)requests by the Select Committee on the Australian Loan Council for evidence, and

      (iii)requests by the Select Committee on Foreign Ownership Decisions in Relation to the Print Media for documents and evidence;

    (b)the government has, explicitly or implicitly, claimed executive privilege or public interest immunity in not providing the information and documents sought by the Senate and its committees;

    (c)the grounds for these claims have not been established, but merely asserted by the government;

    (d)the Senate has no remedy against these refusals to provide information and documents, except its power to impose penalties for contempt;

    (e)the Senate probably cannot impose such penalties on a minister who is a member of another House;

    (f)it would be unjust for the Senate to impose a penalty on a public servant who, in declining to provide information or documents, acts on the directions of a minister;

    (g)there is no mechanism for having claims of executive privilege or public interest immunity adjudicated and determined by an impartial tribunal; and

    (h)the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill 1994, introduced in the Senate by Senator Kernot on 23 March 1994, would provide for:

      (i)the enforcement by the Federal Court of the lawful orders of the Senate and its committees, particularly orders for the production of information and documents,

      (ii)avoidance of any imposition of a penalty on a public servant for acting under the directions of a minister, and

      (iii)the adjudication and determination by the Court of any claim of executive privilege or public interest immunity, through the examination of the disputed evidence or documents by the Court.

  (2)The Senate refers to the Committee of Privileges, for inquiry and report by 23 August 1994, the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill 1994, and requires the committee to give particular attention to the effectiveness of the bill in providing a solution to the problems set out in this resolution.

  (3)For the purposes of the committee's inquiry into the bill, a senator nominated by the Leader of the Australian Democrats be added to the membership of the Committee of Privileges in a non-voting capacity.

  (4)The Select Committee on Foreign Ownership Decisions in Relation to the Print Media present its first report by 9 June 1994, and the committee present a final report by 22 September 1994; and during the period from 9 June to the day on which the committee presents its final report the committee be provided with, and use, the minimum resources required for giving effect to this resolution.

The purpose of this motion is to set in train parliament's formal consideration of the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill. I do not intend to go through in detail the provisions of this bill. The bill has been tabled and I have provided it to members who have indicated to me an interest in the issue. In essence, it provides an avenue for the courts to decide between a parliament's demand for information and a government's refusal to provide that information on public interest grounds. The motion is long and it is self-explanatory. As it says, recent history shows that there is no satisfactory way of having a respected and impartial body—namely, a superior court—rule on a public interest immunity claim.

  In the Australian Democrats' view, this bill fills that vacuum. I do not claim it is perfect, and I am very happy for others to have input to the sorts of improvements that might be made to it. It was in fact the government which suggested that the most appropriate starting point for dealing with the bill was to refer it to the Senate Standing Committee of Privileges. The Democrats believe that is an appropriate procedure and, as I understand it, the opposition has indicated its agreement. Accordingly, the motion establishes an inquiry by the privileges committee and sets a reporting date of 23 August. Although the bill is not long or extremely complicated, I think it raises important questions requiring a reasonable period of deliberation. The terms of reference require the committee to give particular attention to the bill's effectiveness in providing a solution to the fairly frequent impasses reached by the Senate and the government over the supply of information.

  The government has also suggested that the House of Representatives Standing Committee of Privileges should consider holding an inquiry into this bill. That of course is a matter for the House of Representatives, but such a move could assist in the evaluation of the legislation. The motion also proposes that, because the Democrats introduced the bill and need to monitor its evaluation, we should have a place on the privileges committee. But it is a non-voting place and it is simply for the purposes of this inquiry.

  Although I do not know the exact terms of the amendment that I understand is to be moved by Senator Loosley, I expect government members see that the sting of this motion is in its tail. The last part of the motion proposes that the Senate Select Committee into Print Media and Foreign Ownership Decisions make a substantial interim report on the scheduled date of 9 June but that its final report be delayed until 22 September. I can imagine the obvious objections—such as cost, and what will happen to the committee in the meantime. I have made arrangements for that to be taken on board, and the committee would operate with a skeleton staff, if that is an appropriate description of the likes of Richard Gilbert. This skeleton staff arrangement would avoid any suggestion that an entire committee secretariat has been left to twiddle its thumbs between 9 June and 22 September. This arrangement is very inexpensive.

  The point of this extension is to make it absolutely clear that the Senate is determined to test the government's claim that to expose the machinations of the Foreign Investment Review Board is somehow contrary to the public interest. Based on evidence we have heard before the committee, the government is well aware that its public interest immunity claim is built on a shaky legal foundation. Yet we have seen the continual thumbing of nose at accountability by withholding vital FIRB documents, including one which had been leaked and which the Treasurer has since released, with the addition of the one sentence that was missing from the document that members of the committee had.

  More crucial to our deliberations is the consideration that senior public servants have deliberately added an extra layer to this lack of accountability by claiming to have forgotten crucial events in the lead-up to the Fairfax sale. Having watched their body language carefully, having gone back and looked at their language very carefully, having assessed their evidence, I find their amnesia particularly selective. Quite a few prominent figures seem to be suffering from that sort of amnesia under oath these days. I think this chamber should do all within its power to reverse that trend.

  The government amendment is a continuation of an unsuccessful campaign to prevent the inquiry from getting to the truth of this matter. Labor senators who give some thought to this matter—and only Senator Murphy stayed at the committee meeting yesterday to listen to the arguments; some people who are going to speak on this matter were not even there to hear me canvass why I thought this was necessary—will realise why it is absolutely logical to link the bill and the committee's final report, because the catalyst for my introducing this bill was the government's public interest immunity claim over FIRB documents. I was not sitting at home one Sunday afternoon, musing to myself on the deficiencies of a particular clause in the Parliamentary Privileges Act. It was the behaviour of witnesses before our committee and the instructions of the Treasurer to those witnesses that prompted me to take some action.

  What the government's amendment tells me is that the government does not believe its own rhetoric, because if it is really convinced that to release the documents would not be in the public interest, it stands to gain a great deal from this motion and this bill. A Federal Court decision not to disclose the FIRB documents would be a big victory for executive privilege, but it is not willing to test that. This amendment suggests that the government's public interest arguments are just an excuse for a cover-up.

  The value of this motion lies in the fact that it begins formal consideration of one of the most important accountability measures to be put before this chamber. More particularly, I commend the motion to the Senate not just because of its immediate significance but because it is constructive, sensible and even cost effective to sort out for the long term the relative powers of the executive, the Senate and public servants with respect to public interest immunity. Despite the ritualised huffing and puffing of Labor senators on the committee, it is my understanding that the government does wish to pursue a more appropriate resolution of the issue. The objections we are about to hear are for the usual political reasons and they cannot be sustained on the principle of the need to resolve the tension when parliaments demand and have a right to information and a government refuses to provide that information on public interest grounds. I commend the motion to the Senate.