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Monday, 19 September 1994
Page: 895


Senator KERNOT (Leader of the Australian Democrats) (4.01 p.m.) —Mr Acting Deputy President, the Australian Democrats accept the recommendation of the Committee of Privileges that the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill presented by me be not proceeded with. The Democrats put up this bill as one possible solution to the impasses which seemed to be regularly occurring between the parliament and the executive over the supply of government documents. We did not see it as the last word on the issue and we have been persuaded by weight of argument that these matters should be determined by parliament itself.

  However, I take issue with the second last paragraph of the committee's tabling statement which says that the ultimate power to determine claims of executive privilege or public interest immunity lies with each house of parliament. It might seem that way but the fact is that the power to determine claims of public interest immunity lies exclusively with the executive. Possession is nine-tenths of the law and the government possesses the documents. To my knowledge, no government has ever submitted documents to a house of parliament to allow that house to determine whether or not the document should be made public. To claim that the ultimate power lies with the parliament is at odds with the facts.

  Nevertheless, the Democrats have decided to take government and opposition senators at their word. I will be proposing a procedure for parliament to determine this government's claims of public interest immunity in respect of the Fairfax documents to which the print media committee was denied access. The proposal is for a select committee of parliamentary party leaders—currently Senator Gareth Evans, Senator Hill and myself—to examine the documents in strict confidence and to report to the Senate on whether they should be disclosed. The committee could seek the advice of consultants or witnesses—again, in strict confidence. The Democrats envisage seeking the advice of a respected former judge.

  I anticipate government criticism when I say that this proposal is designed to prevent a hijacking or political witch-hunt by non-government members. Prior to the committee's report being tabled, the documents would be returned to the government and the Senate would have a firm basis on which to decide what further steps to take. In our view, the government would have no justification for refusing to supply documents to a committee of parliamentary leaders. We would regard non-cooperation as a very serious matter.

  I therefore foreshadow that at the conclusion of this debate I will seek leave of the Senate to give two notices of motion: one to discharge my bill from the Notice Paper and the other to establish a committee of party leaders to determine the government's claim of public interest immunity in respect of the Fairfax documents.

  I want to make a few comments on an article by Jodie Brough in the Canberra Times of 18 September. During the committee's hearings we heard a lot about the political options available to people and the way in which those options changed according to whether one was in government or in opposition. Reference was made to Senator Gareth Evans drawing a distinction between what he thought should happen when he was in opposition and what he thought should happen, as he puts it, having matured in government. The article reads:

In a 1982 tract in Parliament and Bureaucracy, he—

Senator Evans—

wrote, "If we are to improve the quality of administration and ministerial responsibility—and both sides of politics should be anxious to do so—

I would add that all sides of politics should be anxious to do so—

it is simply not good enough to take the approach that `we won't look into your can or worms if you don't look in ours'.

  "Just as the introduction of tough freedom-of-information legislation has the potential for embarrassing governments `especially corrupt or weak ones', not to mention heads and former heads of sensitive departments, so too has an effective committee system: occasional political embarrassment may be the price both sides have to pay."

  He listed the tricks recalcitrant governments sometimes engaged in—the "obfuscation" of bureaucrats and claims by House of Representatives ministers that they need not answer to the Senate—which sounded oddly familiar. But he added, "Coercive techniques can readily be devised on paper to ensure that ministers do in fact give evidence to rival-chamber committees on demand or request, but the real question is whether any such system will be workable in political practice. I doubt that it ever can be, but the remedy is evident: write the report anyway on the basis of the material available to the committee, and let the facts speak for themselves."

  While he did not believe that any of these problems were "ever going to be fully solved", a good deal could "be achieved by the committees themselves resolutely determining that they are simply not going to be treated with contempt by ministers or senior officials".

  "If committees are to do any kind of useful job in the future in exposing executive maladministration or misbehaviour, I believe that they simply will have to be prepared to grasp the nettle of occasional political controversy," he wrote.

Mr Acting Deputy President, as a member of what has become known as the Senate Fairfax committee, I want to place on record that this is a situation needing resolution. Although the Privileges Committee report today has dismissed this option for resolution—I have already said I concur with that recommendation—I intend to persevere with other options. As I have said, I foreshadow that at the end of the debate I will seek leave to move two motions.