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Thursday, 7 December 2017
Page: 10005

Senator CASH (Western AustraliaMinister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women) (09:31): The Senate has asked me to address the claim of public interest immunity made to and accepted by the Senate Education and Employment Legislation Committee during recent Senate estimates hearings. The principle of public interest immunity is a longstanding principle recognised by the Senate. It recognises that there is information held by government and government agencies, such as law enforcement bodies, that it would not be in the public interest to disclose in particular circumstances. As the Attorney-General stated in his letter of 27 October 2017 to the Senate committee:

… prejudice to law enforcement investigations is a ground of public interest immunity recognised by the Senate.

That position is confirmed by statements in Odgers' 14th edition at page 663, which states:

For this ground to be invoked it should be established that there are investigations in progress by a law enforcement agency, such as the police, and the provision of the information sought could interfere with those investigations.

The Attorney also refers to paragraph 4.6.1 of the Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters, which relevantly provides:

There are several generally accepted grounds on which a minister or, in appropriate circumstances, a statutory office holder, may rely when claiming PII. For example, PII claims may be made in relation to information and documents the disclosure of which would, or might reasonably be expected to:

…         …      …

(d) prejudice the investigation of a possible breach of the law or the enforcement of the law in a particular instance.

The Senate committee has been provided with the advice from the Australian Federal Police, which states:

The AFP has commenced an investigation into the alleged unauthorised disclosure of information concerning recent search warrants executed in support of a Registered Organisations Commission investigation. As this matter is under investigation, it would not be appropriate to discuss the matter further.

The Senate committee has also been provided with further advice from the AFP confirming that the investigation remains ongoing and that the AFP will make no further comment on it.

Contrary to claims by Labor senators, no matter how many times they repeat them, this is not an investigation into either myself or my office. It is an investigation into the matter identified by the AFP in its advice to the Senate committee. The AFP's advice establishes that there is an investigation in progress and further establishes that provision of information in relation to the matters the subject of the investigation would have the potential to affect the conduct of the investigation. The AFP are best placed to determine the likely prejudice to an investigation. The Senate will also be aware that:

… the courts have recognised that disclosure of matters the subject of an ongoing investigation 'might inhibit[ing] the willingness of persons to volunteer information relevant to the investigation', and that investigating authorities should be allowed to obtain 'the fullest possible information without the persons volunteering such information being inhibited by any possible repercussions which might flow from the disclosure of the information'.

The prejudice to any investigation should be readily apparent to the Senate and, indeed, is a principle that has been routinely accepted by the Senate without question on many previous occasions.

In relation to sub judice, as a generally observed principle, matters of contention that are before civil courts should not be discussed or debated until they are determined by the court. The danger of prejudice to legal proceedings arises from a canvassing of the issues before the court or a prejudgement of those issues. It is a matter of public record that on 12 August 2017 The Weekend Australian published a story about AWU donations to the political organisation GetUp! It is also on the public record that on 20 October 2017 the Registered Organisations Commission decided to commence an investigation into this matter. As the basis for the commission's investigation of this matter is currently being contested before the Federal Court by the AWU, the sub judice principle means that the Senate should respect the process of the court by not engaging in debate on matters which are to be determined by the court. This is to avoid the significant risk of prejudicing or prejudging matters that are to be decided by the judiciary. It is clear from Odgers that the sub judice convention is observed by the Senate, except in exceptional circumstances. There is nothing in this case that takes it beyond the ordinary scope of the sub judice principle.

In relation to the specific allegations in the motion, I know that these matters have been extensively canvassed in four recent Senate estimates hearings, and there has been the opportunity to ask questions of me in 11 subsequent Senate question times since the first estimates hearing. I do note that in relation to these allegations, again, simply making them and asserting them on multiple occasions does not make them true.

In relation to the resignation of Mr Hadgkiss, this is another matter that has been extensively canvassed in recent estimate hearings and that I addressed in detail in an opening statement to Senate estimates on 25 October. For the benefit of senators I advise that the court proceeding which led to the resignation was between Mr Hadgkiss and the CFMEU. The legal proceeding commenced in August 2016 and was resolved in September 2017. During this period of time, it was open to any opposition senator to raise concerns about the allegations against Mr Hadgkiss with me if they considered it to be sufficiently important. They chose not to do so. Up until 12 September 2017, Mr Hadgkiss was contesting the claim that was brought by the CFMEU against him. On 12 September 2017, he signed an agreed statement of facts in which he admitted a contravention of the Fair Work Act. Upon becoming aware of this, the government formed the view that the position of Mr Hadgkiss was no longer tenable. Mr Hadgkiss tended his resignation in writing the following day, and it was accepted.

In relation to the granting of the indemnity to Mr Hadgkiss for his legal costs under the Legal Services Directions, this has also been canvassed in detail in Senate estimates and in the statement I provided on this matter on 25 October and during Senate question time. The claim in the motion that there was not a proper assessment of the grounds for his defence is not correct. As previously stated, I approved the request in accordance with the standard process set out in appendix C of the Legal Services Directions based on departmental advice. It is longstanding practice, maintained by successive governments, for Commonwealth employees and officials to be indemnified when proceedings are brought against them in accordance with the requirements of the Legal Services Directions. In relation to the resignation of Mr Southall, this was a matter for him. He made this decision independently of the government, and I as minister had no involvement.

There have been four hearings of the Senate Education and Employment Legislation Committee in relation to these matters in the last six weeks. There have now also been 11 Senate question times during the course of which I have been asked numerous questions. The questions have been repetitive and have raised no new issues that have not already been canvassed repeatedly in the four Senate estimates hearings. The use of the Senate to re-agitate issues which have been extensively and repeatedly canvassed is both a waste of the Senate's time and an abuse of its process.

A government senator: Well done.