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Monday, 14 March 2005
Page: 65

Senator CHRIS EVANS (Leader of the Opposition in the Senate) (4:46 PM) —by leave—I move:

That the Senate take note of the report.

I want to refer today to the matters outlined in the reservation moved by the opposition to items 4 and 5 of the Senate Foreign Affairs, Defence and Trade Legislation Committee’s estimates report. I do so because I think it is a very important matter. The opposition wants to register in the strongest possible terms its concern about the arrogant disregard for the procedures and standing orders of this chamber displayed by the Leader of the Government in the Senate, Senator Hill, when, in his capacity as the Minister representing the Minister for Foreign Affairs, he was before the committee on 17 February.

Senator Hill’s response to committee requests for routine information is a worrying sign of the arrogant disregard for the role and traditions of this chamber that will occur when the government gains a Senate majority in July this year. For the past 35 years or so, the Australian people have come to expect the Senate, through its committees and estimates processes, to scrutinise the actions of the executive government and Commonwealth departments and agencies. The Senate has developed standing orders and procedures to allow it to meet that public expectation of providing openness and accountability. However, on 17 February I think Senator Hill showed a high-handed disdain for those orders and procedures and for the Australian people’s expectation of openness and accountability in government.

On that day, opposition senators were questioning officers of the Department of Foreign Affairs and Trade regarding the department’s knowledge of certain matters relating to the claims made by one of the members of the Iraq Survey Group, Mr Rod Barton, on the ABC’s Four Corners program. These claims and related issues go to whether or not Australians were present at the interrogation of witnesses and whether or not there was political interference in the reporting of the Iraq Survey Group. Earlier it had been revealed that there had been communication between the Department of Defence and the embassy of the United States but that that communication had not been revealed to the Department of Foreign Affairs and Trade. The failure to communicate that information was of concern, given the fact that managing the bilateral relationship with the United States is part of DFAT’s core business. DFAT’s deputy secretary, Mr Doug Chester, that morning acknowledged that such an omission was highly unusual. He said:

With correspondence like that, we would expect to be notified. The fact is that it appears that we were not.

To recap, the committee was questioning officials on issues regarding the government’s handling of Australia’s affairs in Iraq and the administrative relationship between two of our most important departments—the Department of Defence and the department of foreign affairs. During the course of this examination, a DFAT official pointed out that in the previous week he had spoken to someone in the foreign minister’s office about the Barton allegations and Defence’s response to them. Senator Hill was unhappy with this line of questioning and attempted to have the chair put an end to it. At this point, the proceedings of the committee descended into high farce, with the chair first claiming that the matter was commercial-in-confidence, then correcting himself and claiming it was ‘just confidential’. The next pronouncement from the chair was equally unexplainable. He said:

Well, it is cabinet in confidence—I do not know.

After lunch we had another go and revisited the matter. By this stage the official, looking a little nervous, was unwilling to confirm what form that communication with the minister’s office had taken. The witness would only confirm that advice was provided to the minister’s office. He would not say what form the advice took. Let me make it clear. Committee members were not asking the official to reveal the content of the advice to the minister or his office. We made that clear at the time. We were simply seeking the form the advice took. Had he made a telephone call or sent an email? What form of communication had been used? At this stage, Senator Hill weighed into the debate and insisted that the official did not have to further answer questions on the matter. Senator Hill said to the committee:

The witness feels uncomfortable about communicating the form of advice that he gave.

The minister asserted that the official should not have to answer the committee’s questions as he did not feel comfortable with the questions. Clearly, the minister was now arguing it was a question of the witness’s comfort levels. As the minister well knows, the comfort level of a witness is not a matter dealt with under the orders which govern the business of the Senate. To begin with, the matters the committee was dealing with were within its remit of investigation. According to procedural order 42:

The Senate reaffirms the principle, stated previously in resolutions of 9 December 1971, 23 October 1974, 18 September 1980, 4 June 1984 and 29 May 1997, that there are no areas in connection with the expenditure of public funds where any person has a discretion to withhold details or explanations from the Parliament or its committees unless the Parliament has expressly provided otherwise ...

Secondly, the questions put to the witness were allowable. Odgers’ 11th edition states:

The Senate endorsed on 22 November 1999 the views of the Procedure Committee on the relevance of questions at estimates hearings.

                  …         …         …

As the estimates represent departments’ and agencies’ claims on the Commonwealth for funds, any questions going to the operations or financial positions of the departments and agencies which shape those claims are relevant.

Thirdly, it is not for the minister to determine any matter of privilege before a committee of the Senate, and I quote procedural order 25(4):

Upon a claim of privilege based on an established ground being made to any question or to the production of any documents, the Senate shall consider and determine each such claim.

Finally, there were no grounds for a claim of commercial confidence and the correct process for that exercise of privilege had not been followed, and I quote from procedural order 7:

The Senate and Senate committees shall not entertain any claim to withhold information from the Senate or a committee on the grounds that it is commercial-in-confidence, unless the claim is made by a minister and is accompanied by a statement setting out the basis for the claim, including a statement of any commercial harm that may result from the disclosure of the information.

So there were clearly no grounds under the Senate’s orders for the minister to keep information from a committee in this way.

It is a very serious concern. We still do not know what the minister was trying to hide. Clearly, he was embarrassed by the failure to inform the Department of Foreign Affairs and Trade and the Minister for Foreign Affairs about this most important issue. But that is not my point today. What is of major concern to me is the minister’s clear disregard for the conventions of the Senate. The minister, Senator Hill, is the Leader of the Government in the Senate, and he showed an arrogant contempt for the processes that this chamber has developed for ensuring accountability in government. He provides the leadership for the government in this chamber, and it is a very concerning development that he should take this arrogant approach and show disregard for the established processes of the Senate.

We do not even have the situation yet where the government has a majority in the Senate but already we are seeing signs of arrogance and disregard for established processes that will be of concern to many Australians. Senator Hill has shown us that the government intends not to answer to the Senate in terms of its role as a house of review through the accountability processes of the committee system. He has shown us that he will not entertain questions he finds uncomfortable or that he thinks a witness finds uncomfortable—whatever that means. He has shown a disregard for the rules of the chamber and its role in providing accountability to the Australian people.

Labor will not tolerate that attack on our role or on the institution of the Senate. We will take every opportunity to protect the conventions and functions of the Senate as the house that provides accountability in government. We will speak out at every attack on those procedures and powers that senators of good faith have built up in this chamber.

I urge Liberal senators, and coalition senators generally, to think carefully about whether going down this path is a good idea in the long term. One of the disciplines Labor always try to apply in opposition is the discipline of being the alternative government. We think about how would we view this if we were on the other side of the chamber. I urge the government and some of its senators to think carefully about whether arrogant disregard for Senate practice and collusion in preventing Senate committees from getting information to which they are entitled are in the long-term interests of this Senate and democracy in Australia more generally. We on this side will continue to call to account a government which is increasingly showing signs of contempt for the trust placed in it by the Australian people. We will not see the power of the Senate to hold the government accountable undermined.