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Monday, 19 September 1994
Page: 899


Senator KERNOT (Leader of the Australian Democrats) —by leave—I give notice that, on the next day of sitting, I shall move for the appointment of a select committee on public interest secrecy. It is, of necessity, a very detailed notice which I understand is being circulated in the chamber. I will not go through the details. In very brief summary, it records the Senate's awareness of its legally acknowledged powers to obtain documents and the government's increasing refusals to produce them, giving rise to the need for a new parliamentary mechanism to solve these disputes.

  That mechanism is designed to offer the government the opportunity, specifically, to disclose to a committee of party leaders in the strictest confidence the print media ownership documents that have been withheld from the select committee, and for that leaders' committee to test and report whether restricted or unrestricted publication of those documents would be so substantially prejudicial to the public interest that such documents should not be disclosed by virtue of the adoption by the Senate of a self-imposed restraint analogous to the sub judice principle.

  The committee would consist of the Leader of the Government in the Senate, the Leader of the Opposition in the Senate, and me as the Leader of the Australian Democrats. I think it is important to note that the motion is consistent with the principle of the strictest confidence disclosure already placed in some legislation—for example, the Inspector-General of Intelligence and Security Act under which the Leader of the Opposition is given secret information. It reinforces a convention which is developing in this place for appointed spokespersons only to be given—

  The ACTING DEPUTY PRESIDENT (Senator Colston)—You are giving notice of a motion.


Senator KERNOT —I know, I am explaining it, sorry. Under the motion, the controversial print media documents would be disclosed to the committee of leaders for it to report if the government can justify its claims that their publication would gravely affect the public interest.

  Strict procedures would be followed to ensure absolute secrecy for any documents received. These would include oaths or affirmations of secrecy by the committee members in the presence of the President of the Senate and by the secretariat and any consultants. Disclosure of documents to others would be by unanimous signed resolutions of the committee.

  Senator O'Chee—Mr Acting Deputy President, on a point of order. I do not want to be difficult. I am glad that we have now received the notice of motion.


Senator KERNOT —You can see why I am not reading it out.

  Senator O'Chee—Yes. I know that we have now received the notice of motion but it might be helpful if Senator Kernot sought leave, if she wants to make comments, to make those comments and indicate how long she wishes to seek leave for because this seems to be taking quite a while.


Senator KERNOT —I have one paragraph to go, Mr Acting Deputy President.


The ACTING DEPUTY PRESIDENT —I will see how we go, Senator Kernot.


Senator KERNOT —I will go quickly. Every document received and every copy of every such document would be returned to the government accompanied by declarations by the members that no documents or copies had been retained.

  According to Senator Gareth Evans, the government recognises the constitutional power of the Senate to order documents. This motion makes it clear that, if the government refuses to trust the most senior parliamentarians subject to the most rigid secrecy in assessing disputed documents, then the integrity and effectiveness of the parliamentary system itself is subject to an unacceptable threat.

  The motion creates a new parliamentary mechanism: a committee of party leaders to give the government an opportunity to justify its claims in a secure environment of the highest public interest responsibility.


The ACTING DEPUTY PRESIDENT —That is a novel way of giving notice of a motion, I suppose, but I presume it will be handed to the Clerk.

  The notice of motion read as follows

  (1)That the Senate:

    (a)aware that no one, including the Leader of the Government in the Senate, Senator Evans, QC, contests that under the Constitution the Senate has power to order production of government documents; and

    (b)aware that the government has nevertheless increasingly refused to table documents, claiming that to do so would be contrary to the public interest; and

    (c)noting that such refusals are a prima facie contempt of the Senate; and

    (d)conscious of the merit of creating an agreed parliamentary mechanism for the production of government documents which:

      (i)respects the constitutional powers of the Senate; and

      (ii)enables a responsible, balanced and confidential assessment to be made of the effects on the public interest of the release of particular documents; and

    (e)recognising that the Parliament has, in legislation such as the Inspector-General of Intelligence and Security Act 1986, acknowledged that government information may safely be supplied in confidence to senior parliamentarians such as the Leader of the Opposition; and

    (f)aware that, when a serious, prolonged and unresolved conflict arises between the government and the Senate over the disclosure of documents, a government which:

      (i)arrogates to itself exclusive and purportedly infallible competence to determine the scope and content of the public interest; and

      (ii)refuses to trust the most senior parliamentarians to assess the strength of the government's claim to maintain the secrecy of certain documents, even when those parliamentarians undertake to observe the most rigid secrecy in assessing those documents; and

      (iii)demonstrates in such actions its lack of faith in the parliamentary system and in the cogency of its own case for secrecy;

represents a threat to the stability, integrity and effectiveness of the parliamentary system;

resolves therefore to create a new parliamentary mechanism for the assessment, in strictest confidence by party leaders, of claims by government that the tabling of particular documents would be contrary to the public interest.

  (2)That, for the purposes of paragraph (1), a select committee, to be known as the Committee of Party Leaders on Public Interest Secrecy (the committee), be appointed to inquire into and report, on or before 7 November 1994, on the following:

    With respect to each document in relation to print media ownership listed at the end of this resolution, whether the publication of that document, or its publication in confidence to a Senate Committee, would be so substantially prejudicial to the public interest that notwithstanding the public interest in the free and effective conduct of any specific inquiry by the Senate or any of its committees, that document should not be so disclosed by virtue of the adoption by the Senate of a self-imposed restraint analogous to the sub judice principle.

  (3)That the Committee consist of three senators, as follows:

      (a)the Leader of the Government in the Senate; and

      (b)the Leader of the Opposition in the Senate; and

      (c)the Leader of the Australian Democrats.

  (4)That:

      (a)the chair of the committee be elected by the members of the committee; and

      (b)in the absence of agreement on the selection of a chair, duly notified to the President, the allocation of the chair be determined by the Senate.

  (5)That the quorum of the committee be three members.

  (6)That the committee have power to send for and examine persons and documents, to move from place to place, and to sit in private only, notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives.

  (7)That documents or evidence provided to the committee may not be disclosed or revealed to any person without a unanimous resolution of the committee to that effect recorded in writing and signed by the members at the time of making the resolution.

  (8)That it is the duty of each member of the committee, its secretariat and any consultant appointed by the committee to treat as secret any document or evidence provided to the committee, unless relieved of this obligation, in whole or part, by a unanimous resolution of the committee to that effect recorded in writing and signed by the members at the time of making the resolution.

  (9)That, at its first meeting, the members of the committee make and sign an oath or affirmation to observe the duty referred to in paragraph (8), in the presence of, and witnessed by, the President of the Senate.

  (10)That it is the duty of any other person to whom documents or evidence are disclosed or revealed to treat as secret any such document or evidence unless relieved of this obligation, in whole or part, by a unanimous resolution of the committee to that effect recorded in writing and signed by the members at the time of making the resolution.

  (11)That before receiving any document or evidence from the committee such a person make and sign an oath or affirmation to observe the duty referred to in paragraph (10), in the presence of, and witnessed by, the committee secretary or, in the presence of, and witnessed by, another person authorised by the committee in writing to perform this function.

  (12)That the documents in relation to print media ownership listed at the end of this resolution be laid before the committee, by the Leader of the Government in the Senate (Senator Gareth Evans) as soon as practicable after, but not later than 48 hours after, the committee's first meeting.

  (13)That, if the documents referred to in paragraph (12) are not laid before the committee as required by the order of the Senate contained in this resolution, the committee is to report that fact to the Senate as soon as practicable.

  (14)That, when the documents referred to in paragraph (12) are laid before the committee as required, the committee is to examine each document and determine its status in accordance with paragraph (2).

  (15)That with respect to each of the documents referred to in paragraph (12), the committee is to report whether its determination was reached by unanimous or majority decision and, where applicable, who comprised the majority.

  (16)That an officer of the Senate, nominated by the President and appointed by the committee, act as secretary to the committee, and the committee be provided with all other necessary staff, facilities and resources and be empowered to appoint persons with specialist knowledge for the purposes of the committee with the approval of the President.

  (17)That, as soon as practicable after appointment of the committee, but in any case before receiving documents or evidence in relation to the committee's work, the committee secretary, each member of the secretariat and any consultant appointed by the committee make and sign an oath or affirmation of the kind referred to in paragraph (9) in the presence of, and witnessed by, the Chair of the committee.

  (18)That, subject to paragraph (19), the committee take all necessary steps to preserve in strictest confidence and safest custody such documents and evidence provided to it.

  (19)That, not later than 24 hours before the committee tables its report, the committee

return to the Leader of the Government in the Senate each document and every copy of each such document referred to in paragraph (12) with a declaration, signed by each member, that, to the best of his or her knowledge, no such document or copy of such a document has been retained by him or her (other than as Leader of the Government), or by any person who received it from the committee or who was known to have had access to it on behalf of the committee (other than with the express permission in writing of the Leader of the Government in the Senate).

  (20)That the documents referred to in paragraph (12), being the documents listed in the schedule attached to the letter of 9 March 1994 from the Treasurer (Mr Ralph Willis), to Senator Alston, are as follows:

DOCUMENTS NOT LISTED EITHER IN ATTACHMENT A TO TREASURY SUBMISSION OR SCHEDULE TO TREASURER'S LETTER OF 10 FEBRUARY 1994

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Doc No. of

No Author Addressee Date Description pages

—————————————————————————————————————-

File A

1 Finance and Treasurer's 9 Dec 1991 Suggested answers to 3

Investment Office questions regarding the

Division, Fairfax Group

Treasury

File B

1 Executive Treasurer 21 Jan 1992 Minute concerning 23

Member applications by Hellman

& Friedman and the Telegraph

to increase their economic

interest in Fairfax

2 Executive FIRB 23 Jan 1992 Correspondence and minutes 22

Member concerning Hellman and

Friedman and Daily Telegraph

proposals to lift their stakes

in Fairfax

3 Executive Treasurer 29 April 1992 Minute on the Government's 4

Member foreign investment decisions

in respect to Fairfax decision

4 Executive Treasurer 29 April 1992 Minute on membership of the 1

Member Fairfax Board

File C

1 Director Attorney 16 Dec 1992 Request for Interim and Final 2

Foreign General's Order

Investment Department

Branch

2 Officer Director 26 Nov 1992 Question Time Brief 1

Foreign Foreign

Investment Investment

Branch Branch

3 Attorney FIRB 7 Jan 1993 Response to request for legal

General's opinion on final order

Department

4 Mr J.B. Chairman FIRB 20 Jan 1993 Letter concerning content of 9

Leslie alleged FIRB minute of 5 Dec 1991

Chairman

AIN

5 A/g Division Head 28 Jan 1993 Suggested response to

Assistant correspondence from AIN Chairman 1

Secretary

Foreign

Investment

Branch

6 Executive FIRB 1 Feb 1993 Response to AIN 2

Member

7 Executive FIRB 11 Feb 1993 Copy of letter sent to 2

Member Mr J Leslie

8 Executive Note for File 12 Feb 1993 Record of discussion 1

Member

9 Executive FIRB 4 Mar 1993 Copy of letter from Mr Leslie of 3

Member AIN to the Treasurer concerning

the Board's response to AIN's

letter of 20 January 1993

10 Executive Note for File 8 April 1993 Foreign Investment Policy—Mass 1

Member Circulation of Newspapers—

Processing of cases—Telegraph

and O'Reilly

File D

1 Executive FIRB 27 Nov 1991 Information note on Tourang 1

Member

2 Executive Attorney 25 Nov 1991 Memorandum and attachments

Member General's concerning the Tourang proposal

Department

3 Executive Treasurer 5 Nov 1991 Reply to Tourang 3

Member

4 Executive FIRB 6 Nov 1991 Representations concerning 2

Member foreign ownership of the

Fairfax Group

5 Executive FIRB 6 Nov 1991 Reply to Tourang's solicitor 6

Member

6 Executive Treasurer 5 Nov 1991 Reply to Tourang's solicitors. 8

Member Copy of Freehill's letter is

also attached

7 Executive Treasurer's 26 Nov 1992 Question time brief on Fairfax 2

Member Office

8 Treasurer's Executive 26 Nov 1991 Fax on Question time brief 5

Office Member

9 Executive FIRB 30 April 1992 Minute to Treasurer on Fairfax 6

Member float

10 Executive Treasurer 29 April 1992 Minute on control of Fairfax 1

Member

11 Executive Treasurer 29 April 1992 Minute concerning policy in 4

Member relation to Fairfax

12 Executive 28 April 1992 Question time brief on Fairfax 2

Member (copy)

13 FIRB File Note 23 April 1992 Fairfax Float—Prudential-Bache 1

Inquiry

14 Executive FIRB 7 April 1992 Draft minute on Fairfax float 10

Member

15 Executive FIRB 23 Jan 1992 Minute to Treasurer on Hellman 23

Member & Friedman and Daily Telegraph

proposals to lift stakes in

Fairfax

16 Executive Internal Dec 1991 Tourang/Fairfax talking points 2

Member Notes

17 Treasurer's Executive 1 April 1993 Note attaching minute of 1

Office Member 5 Dec 1991

18 Executive Treasurer's Dec 1991 Fax on possible questions on the 3

Member Office Fairfax group

19 Executive Treasurer's 9 Dec 1991 Fax on possible questions on 2

Member Office Fairfax

20 Executive FIRB 3 Dec 1991 Copy of draft minute to 14

Member Treasurer on Tourang and

O'Reilly's bids for Fairfax

21 Executive Treasurer's 3 Dec 1991 Draft of minute on O'Reilly 11

Member Office & Tourang's proposals to buy

Fairfax

22 Executive Treasurer's 28 Nov 1991 Draft of minute on O'Reilly 9

Member Office & Tourang's proposals to buy

Fairfax

23 Executive Treasurer's Dec 1991 Draft of minute on O'Reilly 10

Member Office & Tourang's proposals to buy

Fairfax

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