Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Discussion about the power of the Senate to force Ministers to table certain material in light of alleged conversation between Environment Minister, Ros Kelly, and conservation group

PETER THOMPSON: Mrs Kelly is apparently in the bunker, this morning. Numerous attempts by A.M. to contact her have been unsuccessful. Mrs Kelly's refusal to table the tape of her conversation has raised the issue of whether the Senate has the constitutional right to demand it. According to Dr Jenny Hutchison, an expert on the constitutional powers of the Senate and the author of the first doctoral study of those powers, the problem arises with the enforcement of any motion passed by the Senate. This morning, Michael O'Regan asked Dr Hutchison whether she believes the Senate has the power to make Mrs Kelly table the tapes.

JENNY HUTCHISON: Well, I think the quickest answer to that is that the Senate can ask for this to happen but there is no way of enforcing a Minister to produce papers or, in this case, a tape.

MICHAEL O'REGAN: According to Senator Robert Hill who is the Leader of the Opposition in the Senate, he's basically saying that a refusal on the Government's part would amount to a major breach of its constitutional responsibilities. Is that true, as you see it, in terms of the relative powers of the Senate and the House of Reps?

JENNY HUTCHISON: I wouldn't think so. There are several occasions, in the past, where a question like this has come up, and what has happened has varied from case to case. It seems to have been in the power of the Prime Minister, at the time, to decide whether or not tabling would occur. For example, Malcolm Fraser, back in '82, at the time of a whole series of bottom of the harbour cases, refused that certain documents and evidence would be provided. On that occasion, he was talking about the problem of prejudicing prosecutions. Mr Sinclair, when he was a Minister, refused to appear before the Senate when he was asked to appear to answer questions. Gough Whitlam, on the other hand, allowed officials to appear before the Parliament on occasions.

MICHAEL O'REGAN: So is it a question of the Government of the day's willingness being the crucial factor, rather than a specific constitutional power located in the Senate?

JENNY HUTCHISON: I would say so. There are certain grounds that have been established that, for example, I mentioned prejudice in prosecutions. It also has been accepted that certain documents, if they are of a confidential nature, should not have to be tabled, and I would think that, in a sense, that is the argument Mrs Kelly is putting up at the moment.

MICHAEL O'REGAN: That she would be able to argue confidentiality as a block to the tabling of these tapes?

JENNY HUTCHISON: Well, in a sense, what she has been saying in the Lower House is that this is a tape recording of private meetings, in a sense. That's I think related to a potential case of confidentiality.

MICHAEL O'REGAN: If the Opposition in the Senate wanted to push this issue, what powers would they have to do so? Could they keep at Mrs Kelly and demand the tabling of the tapes?

JENNY HUTCHISON: If a matter like this continued to be contentious, of course, there is the possibility of legal action, and there have been cases where the High Court has, in the past, determined whether or not documents should have been tabled, whether they were privileged and so on.

MICHAEL O'REGAN: If we look at the broader issue, it seems that since 1975 and the dismissal of the Whitlam Government, there has been both vitriolic argument and confusion over the relative powers, executive and legislative, in the Parliament. Is this a further indication that Australian politics hasn't resolved those relative powers?

JENNY HUTCHISON: Well, I would say actually, that this dispute, disputation began right in 1901, has continued ever since. It becomes more bitter at some times than at others, and of course, the reason for that is very much based on the question of majorities in the two Houses. Since we haven't had a government controlled Senate for many years, use of the Senate by the Opposition, is a political tactic.

PETER THOMPSON: Constitutional expert, Dr Jenny Hutchison, who is also the producer of the ABC's national parliamentary program, Ring the Bells.