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Monday, 19 September 1994
Page: 896


Senator ELLISON (4.07 p.m.) —Mr Acting Deputy President, on behalf of the coalition I endorse the report of the Committee of Privileges. This report relates to the reference to the committee by the Senate of the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill 1994. The reference required the committee to particularly look into the problems displayed on recent occasions when the government failed to comply with orders and requests of the Senate and its committees for documents and information.

  By way of example, I refer to the following: the order of the Senate dated 16 December 1993 concerning ministerial communications on woodchip licences; the request for evidence by the Select Committee on the Australian Loan Council; and the request for documents in evidence by the Select Committee on Foreign Ownership Decisions in Relation to the Print Media. It was perhaps that latter committee of inquiry that was the catalyst, as Senator Kernot put it, for this bill to be brought forward.

  Some people have regarded this reference as being purely politically motivated because it wanted to carry forward the terms of reference of the print media inquiry. It was not that at all. That committee highlighted an entirely unsatisfactory situation where the executive arm of government was thumbing its nose at a due process of inquiry by this Senate and its committee. One has to remember that the Senate is an elected house. It represents the states and thereby the citizens of Australia. The committee process of the Senate is a very important one. Anything that would thwart the good operation of that committee process strikes at the fabric of democracy in this country.

  Therefore, it is understandable that Senator Kernot brought forward such a bill as this. The purpose of the bill was to provide for the Federal Court to enforce lawful orders made by parliament and to allow the court to determine claims that disclosure of information to parliament would contravene the public interest. The questions that the bill is designed to resolve are: whether there should be a method of determining a claim for executive privilege against a house of parliament; on what basis the claim should be determined; and whether the determination of the claim should reside within either of the two institutions, that is, the parliament or the executive, or whether recourse should be had to the third arm of government, that is, the judiciary. That was really the nub of the reference—to look at the aspect of the bill which placed the determination of this matter in the hands of the Federal Court.

  Several submissions were received on the detail of the bill. However, the primary focus of the evidence was on the fundamental constitutional framework of our system of government. I recommend to fellow senators that they read the transcript of the hearing which took place. I commend my fellow senators on the committee for the work they did and the questions which they put to the witnesses concerned, because I believe that through that evidence there was an expose of the fundamental problems highlighted by this whole affair.

  Of course, the committee acknowledged, as did all witnesses who appeared before it, I believe, that there is some information held by an executive which should not be disclosed. However, to put it rather bluntly, as Mr Morris QC did, it is all a question of trust. He noted that, in an ideal world, a government could be trusted not to make a claim of public interest immunity inappropriately, while in the event that a claim needed to be considered because of some ambiguity or uncertainty a house or committee of the parliament could be trusted with such information so that a determination could properly and confidentially be made. Of course, in reality, it seems to be somewhat different. I note Senator Kernot's previous remarks regarding her proposal to sort out this question of whether such immunity is validly claimed.

  The tension between a government's decision to withhold information and the Senate's insistence on its production, I believe, has not been satisfactorily resolved. I believe that is echoed in terms of the report by the committee. The question posed by the committee was whether any solution was possible and in what form that solution might be successfully canvassed. According to the report, the former Speaker of the Victorian Legislative Assembly, Dr Coghill, stated:

My concern is that the legislation is ultimately repugnant to the responsibilities of the parliament, and to the Senate in particular, in our system of government. To my mind the referral of such matters to a court would undermine the authority of the parliament and politicise the court's proceedings.

That was really the tenor of the majority of evidence put to the committee, I would suggest. Perhaps the gravity of the situation was best covered by the Clerk of the Senate, Mr Harry Evans, who stated:

  Ultimately, if parliament fails, the whole system is likely to fail. There is simply no substitute for an inquisitive legislature . . . We have had a string of royal commissions telling us that all manner of dreadful things have gone on, that parliaments have been powerless to prevent them and have been negligent in their duties, et cetera, and that we need more safeguards, like independent commissions against corruption and all manner of things like that to prevent these things happening.

  I still say that all these things will not work in the absence of a properly operating parliament.

I endorse that last sentence especially, because democracy in this country cannot function as it should unless there is a properly functioning parliament and that parliament is one of an inquisitive nature—it inquires on behalf of the people of this country into the operations of government, and it does that largely via its committee system. The Senate committee system has so much going for it because it offers that avenue of inquiry for the people of Australia.

  The problem, of course, is that if the committee is to be met with contentious behaviour, if the committee is to run into a stone wall where public servants, directed by ministers, do not answer questions or do not provide essential documents to that inquiry, what is the worth of that committee system? What is the worth of this chamber being an inquisitive chamber into the workings of government? It reduces that worth to nought, and that is really why this problem is so essential. It is one which is not going to go away. It is one which will remain. People who follow in my shoes and in the shoes of others in this chamber in years to come will still be asking the question.


Senator Kernot —We will solve it.


Senator ELLISON —I hope we do solve it but perhaps Senator Kernot is more optimistic than I because this matter is one that has been a longstanding question and a vexed one. Again, I refer to the Clerk of the Senate, Harry Evans, who said:

The Senate has enormous powers to force a government to disgorge information but there are great political constraints on the use of those powers.

The witnesses concerned indicated that there were great powers placed in the hands of this chamber and the other place and that ultimately it rested with the Senate to deal with how its committees were treated and how it was treated by the government of the day. Of course, the witnesses concerned agreed, I would suggest, that there was a problem to be looked at here but that a referral to the courts was not the answer. That was the aspect of the bill which provided much food for thought and perhaps some dissension from the witnesses concerned. Nonetheless, no-one underrated the problem that we face.

  I suggest to the Senate that the Committee of Privileges has given a report, albeit a somewhat pithy report, which outlines succinctly the problem concerned. In its recommendations, the committee stated that it does not accept the concept that jurisdiction in respect of the determination of claims of executive privilege or public interest immunity against a house of parliament or its committees should be conferred on the courts. I concur with that. It recommended that the bill not be proceeded with. It also considered that if an order of a house or committee is not complied with by a public servant acting on the instructions of a minister, it is for the relevant house to take such action under its contempt powers as it considers appropriate in the circumstances. That last recommendation is really the nub of the whole matter. It is for this chamber to decide what action should be taken. The buck stops here; nowhere else. We are the elected representatives of the people of Australia and we have to take responsibility for dealing with people who treat our committees and this chamber with contempt.

  I place on record my view that we should not shirk from that responsibility, should that arise in the future. It is a question of degree as to the extent of the contempt, the extent of the obstructive behaviour. That is one that will have to be determined on the day. Unfortunately, we are all political animals and we are subject to outside influences—the influences of public opinion. Perhaps that might influence us in how robust we are in handling any contemptuous behaviour or any stonewalling on the part of the executive.

  I note that during the print media inquiry there were sensationalist headlines as to the gaoling of a public servant. It was never contemplated—unless the journalists were at a different committee hearing from me. But I can say to the chamber that that was not the issue. The issue is: what do we do when we need essential documents for a duly constituted Senate committee of inquiry and we are being obstructed; someone is saying in front of us, `No, you can't have those documents'? It was not about gaoling public servants. But the question has to be answered and resolved, not by gaoling public servants but by putting forward a sensible and rational proposal which will address this matter.

  I believe that this chamber and the government, especially the latter, would be remiss in its responsibilities and duties if it did not address this problem; it is fundamental to the system of government in this country. One can talk about all manner of things—republics, monarchs and all the rest—but that is the cosmetic aspect to it all. We are talking about the nitty gritty aspects of government, of a system of government, and when one gets into the detail of a problem, one finds that many people shy away from addressing it. It is easy to address the cosmetics. It is easy to indulge in rhetoric on this but the question still remains. We have to find an answer to this problem so that this Senate and its committees can function properly whereby inquiries that are carried out on behalf of the people of Australia can be carried out in a proper fashion and in an effective manner.

  Question resolved in the affirmative.