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Thursday, 12 May 1994
Page: 733


Senator MURPHY (11.14 a.m.) —I hope that I can seek to address the actual motion in the sense that I thought this debate was supposed to be conducted. As I understand it, the Democrats have had some discussions with the government in respect of the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill, which Senator Kernot introduced on 23 March 1994, insofar as there was agreement between the government and the Democrats with regard to the processes by which the bill would be dealt with. However, the government is opposed to the linkage to the print media inquiry, for the simple reasons that the terms of reference for this committee were set out and moved by Senator Alston and that this committee has now had an extension of time moved at least three times.

  I want to refer to the committee's terms of reference, particularly point 6 and point 8. Point 8 states:

That, without limiting its power to pass procedural or other resolutions that are not inconsistent with . . . these terms of reference, the Committee observe the following procedures, namely, that:

And it goes on to talk about submissions and the calling of witnesses, et cetera. We have now had three delays in this committee's reporting to the Senate. It is required under the standing orders, as I understand it, to conduct its business and then report to the Senate on its findings. Paragraph (4), which Senator Kernot is proposing as part of her resolution, states:

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.

Essentially, as I understand it, that is aimed at trying to achieve a resolution of this dispute about the government's claim to public interest immunity over certain documents in that there are claims with regard to the government's position and the non-government members of the committee have a view that this committee should have access to certain documents.

  I would like to relate to a letter from the Treasurer (Mr Willis) to the chairman of the committee. The letter shows—and it is certainly our view—that the government has indeed cooperated with this committee in providing information and documents to the extent that it ought, given its responsibility to the public of Australia. That also includes the business community of Australia, which this government often has dealings with. In many of those dealings, I would suggest, the business community would require some of those discussions, documents and information that are exchanged between government and business to remain confidential. I think all members of the committee accept that as a fact. I do not think anyone has disputed that.

  With regard to this public interest immunity claim, it was my understanding, as a member of the committee, that we sought legal advice as to the grounds on which we could require witnesses or the government to provide information. We received advice from Mr Jackson QC. Certainly, in his first set of legal advice, in clause 52, he said that, on the basis of the information provided to him with regard to the government's position, it had classified the documents which the committee sought. He believed, on the basis of other legal proceedings and other cases, that the government's position would be upheld and that those documents classified as category 1 would indeed attract a public interest immunity claim. Certainly, he indicated that the Treasurer and, indeed, the FIRB had provided all the other documents. We do not even know what documents might remain. Certainly, if we take the evidence of people who have appeared before us—in particular, former Treasurers Dawkins and Kerin—there would be no other documents of relevance to this committee's proceedings.

  As I say, we spent nearly $10,000 on getting legal advice to provide us with guides about how we would proceed. My understanding was that if the advice was supportive of, or indicated support for, the government's position in certain matters then that would be the end of that. But that does not seem to be the case. We seem to want to go on and on. One question I want to ask Senator Kernot is: if, at the end of the day, when we get to 27 September when this proposal says we will have a final report—and, of course, the privileges committee will have reported back on Senator Kernot's proposal—that legislation is not enacted, what do the Democrats intend to do with respect to the final reporting of this committee?

  That is something that either Senator Kernot or the Democrats will have to respond to. We have to know, and I think the taxpayers have a right to know, what we intend to do thereafter if there is no legislation in place—as is being sought by this course of action—that will allow this matter to be referred to the courts in an attempt to get some decision at, I think, a substantial cost to the taxpayer. Nevertheless, if that is not the case—if there is no legislation—when is this committee going to finally report?

  I want to pick up one point with regard to Senator Alston's claim about Senator Loosley not attempting to reach consensus. In the very early stages of this committee's life it was suggested by Senator Loosley that its members meet with Treasurer Willis with a view to working out a possible process for looking at the documents in question, and/or, indeed, trying to ascertain whether there were any documents in question. That was ultimately refused by the opposition members of the committee.

  With regard to the role of FIRB in this whole process, I think it is important that people understand that FIRB, in relation to the terms of reference of this inquiry and a lot of the issues that were raised about FIRB's involvement, had no role to play in the sale of Fairfax. There seem to have been a lot of claims about the FIRB minute that supposedly contained inaccurate information about the AIN bid.


Senator Kernot —That is not right. It was an advisory body to the Treasury in that decision.


Senator MURPHY —Senator Kernot knows that neither the government nor FIRB had anything to do with the final decision about who bought Fairfax. That was a decision for the receivers who, ultimately, chose the bidder who would end up owning Fairfax. It was nothing to do with the government and nothing to do with FIRB. FIRB's role in this process was to make a recommendation on the foreign bids that had been placed in an attempt to buy Fairfax. FIRB had nothing to do with the sale other than to make sure that those foreign bidders met the guidelines of the criteria in respect of foreign bids for ownership of print media in this country.

  I find it quite ridiculous when we have had legal advice, and subsequent legal advice which did not really much change from the initial legal advice, except that Mr Jackson referred to the minute of FIRB that had been made public and said that that would no longer attract public interest immunity. That argument ultimately led to Treasurer Willis's letter to acknowledge that yes, indeed, it was a copy of the minute.

  Overall, considering all of those things in looking at what is proposed here, the government, as I understand it, has agreed essentially to the proposal from Senator Kernot to have her bill referred to the privileges committee. But we cannot accept—on the basis that we do not know, we will never know, and this motion certainly does not put in place—a time for this committee to finally report. It is no good saying that it says 22 September, because we have had three other goes at this—5 May, and some other date and yet another date—and we have never got there.

  I ask Senator Kernot this because I want her to clarify what her position will be when we get to 27 September and there is no legislation enacted that allows this matter to be referred to the court. As I understand it, that is the proposition in her legislation. We would like to know because we do not believe that it is correct to continue to waste taxpayers' money for no worthwhile purpose. Senator Kernot says in her proposal:

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

That is true. She also says:

The Senate probably cannot impose such penalties on a minister who is a member of another House;

That is true. She goes on:

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;

I think that is very true, and that is where the dilemma is. The Senate does have, as Senator Kernot has pointed out, the power to get those documents by saying, `Okay, we find public servants'—in this case Messrs Hinton and Pooley—`in contempt of the Senate, and therefore we place one of them in gaol', which then ultimately leads to an appeal in the court to find out whether or not there are documents and whether or not they are relevant.

  Senator Kernot really has an obligation to the Senate, as this committee does, to inform the Senate of when it will report. The whole process of this debate has ebbed and flowed with regard to personal abuse, et cetera. I am not going to go into that, but I would like the Democrats to state their position clearly when we get to 27 September. Is that the end of the game or are we going to see another extension of time sought for some other period of six months, or whatever the case may be? Senator Kernot has a responsibility to the Senate to indicate that.