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Thursday, 29 October 2009
Page: 7598


Senator XENOPHON (11:44 AM) —In relation to the motion that is before us, this matter was adjourned last night and that allowed an opportunity to further discuss this matter with the minister. I would like to apologise to Senator Minchin—I have been trying to get on the phone to him this morning but I physically have not been able to, so I have not had an opportunity to speak to him, and that is not through lack of trying but because of other business. But essentially, and I indicated this broadly to Senator Minchin yesterday, I do have some concern about the whole issue of commercial-in-confidence, and I think those are concerns I have expressed to both Senator Conroy and Senator Minchin in terms of how commercial-in-confidence and public immunity claims have been dealt with in the past to prevent the release of information.

We note that the Auditor-General, both for this government and the previous government, was critical of the way commercial-in-confidence was being used. I note Senator Minchin’s arguments in relation to the issue of the relevance of the documents that were referred to—I think 16 pages out of about 884 were released—in relation to that. I believe it has been dealt with in this respect given the statement made yesterday by Senator Conroy about the basis upon which those documents were released, and that is on the record in Hansard. It is fair to say that I do not think it right for the government to say that these documents are completely irrelevant in the context of the structural separation bill, but in the context of the debate they are clearly more relevant in relation to the NBN bill that will be coming up next year.

Following discussions with my colleagues in the Greens, in particular Senators Ludlum and Brown, and Senator Fielding from Family First, I believe the best way forward in seeking to deal with this longstanding problem is to give notice of motion that there ought to be a reference to the Senate Finance and Public Administration References Committee. That committee should report back on the first day of sitting in 2010. It should consider the process of the release of documents to test whether such documents ought to be protected using the public interest immunity claims. It should also look at the approach used by, for instance, the New South Wales upper house in its processes, and look at whether an independent arbitrator, or indeed the Auditor-General, should look at these documents.

I want to make it clear to the government, publicly as well as privately, that I believe there ought to be reform in terms of the whole issue of commercial-in-confidence documents. There will be debate on the NBN in February, and the whole purpose of this process is to ensure there needs to be fundamental reform with respect to this. The committee will report back by the first sitting day in 2010, and my position is very clear: that governments need to do much better than they have in the past in dealing with commercial-in-confidence claims. In terms of this matter proceeding, my position is to support the government’s motion. We will not, in effect, be able to deal with this until the last two sitting weeks of this year. That does not mean that I am signed up, by any means, to the government’s legislation. I have a number of concerns. I have already said publicly that I am generally supportive of the principle of structural separation, but there are a whole range of issues to be dealt with before I get to a point of support for the government’s position. I do, however, think the debate ought to proceed further.

I note Senator Minchin’s general concerns on the whole issue of commercial-in-confidence with respect to this process, and I believe that by the first sitting day next year we will be in a better position to deal with those issues. I note that the minister will be making a statement in relation to the government’s support for this inquiry, as well as the resourcing of that inquiry, and further that the government will fully cooperate with such an inquiry dealing with public interest immunity claims. So that is my position, and I am grateful to the Senate for adjourning this matter last night to allow further discussion.