Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Wednesday, 5 May 1993
Page: 148


Senator ALSTON (Deputy Leader of the Opposition) (3.25 p.m.) —In many ways it is disappointing that we come back to the first formal day of Parliament to find that not only is the Government on the ropes but that all its bad habits have gone from bad to worse. It seems to me that what we have already had in Question Time today from Senator Collins—I will come to some of Senator Evans's legal opinions later—is a redefinition of the principle of ministerial responsibility. Senator Collins would have us believe that there is a presumption of ministerial idiocy. In other words, we ought to treat a Minister as knowing nothing about anything. He ought to be entitled to be informed about any change in policy, administration or anything that might be of interest to him because we can presume that he is a complete idiot.

  We are not dealing with a tyro; we are not dealing with someone who has just come into the job and done quite well in a short period of time. It is quite the opposite. Here is a bloke who has been on board for about three years, with all the perks of office and all the rewards that go with being a Minister, but a man who has an abject unwillingness to accept any of the responsibilities of high office. That is not just a personal tragedy; it is also a very serious matter of concern for the Parliament and the administration of government.

  We need to demolish at the outset the preposterous nonsense that Senator Collins keeps trotting out that if we do not have a merit based system, we must have a price based allocation system in which no Minister can have any part to play. In other words, `Don't dare ask me to intervene in any shape or form, because if I did that I would be accused of favouring my mates, and that is the last thing I want to do'. One does not have to be a complete idiot to understand that the terms and conditions of the administrative arrangements can be defined without in any shape or form favouring any of the participants. If the Jack Waterford principle has any relevance, it is simply that Ministers should not intervene in tenders and do so at their peril if they want to advantage one or more of the parties. That is completely different from the concept of ministerial responsibility for what goes on in Senator Collins's department.

  Let us start where we should start in all these matters, and that is at the beginning. The beginning is section 93 of the Broadcasting Services Act. It says that the Minister is to determine in writing a price based allocation system. It does not say that it is up to the junior bureaucrat to do it.


Senator Collins —That means I do it myself, does it? What nonsense!


Senator ALSTON —That is precisely what it does not mean. Senator Collins wants to see these things in black and white. He used to be a jockey; I suppose there were weighty reasons why he gave that game away. I assure him that he is a real lightweight when it comes to media law. He clearly does not understand the difference between being involved in every little detail and accepting responsibility for what others do in his department.

  What that section states is a very hallowed principle. `The Minister is to determine' means that the Minister is fixed with ultimate responsibility. It does not go on and spell out, chapter and verse, how to do these things; it simply leaves it to the discretion of the Minister, taking advice from the department and any outside experts that he chooses to rely on. But if he adopts the approach of closing his eyes and saying, `Today is the 19th of January and I've got much better things to do in the Northern Territory. I'm the State President of the ALP; I've got a lot of mobile polling booths to run around. All I'll do is sign a document put in front of me. I'll do it on a wing and a prayer, hoping that if there is anything of any significance the department will bring it to my attention'. That is not the basis on which the Minister is paid a very good salary. He is paid to exercise some individual judgment.

  We do not put people into ministerial offices—normally, anyway; and we certainly would not on our side—unless we think they have some degree of competence. It follows from that that we expect them to exercise judgment and discretion. We expect them to read what is put in front of them, not to adopt the Jim Cairns defence and say, `I know it involved $4,000 million, but really I was in a bit of a hurry'.

  What about all the stuff that was given us today? Senator Collins said, `I get 200 ministerial submissions a week. I'm a very busy boy. I should therefore be entitled to be told of anything of any significance so I can just claim all the credit. I'll sign everything in sight. Anything you put on my table, you can get my signature on it, as long as you haven't warned me not to. If it looks good, of course I'll be all over the front page claiming the credit'.

  We have quite the opposite situation here. Not only do we have a bloke who says, `I don't bother reading the documents', but apparently he does not even read the newspapers. I could understand why he is not reading the Financial Review when it has headlines like `Collins' job on line over pay television fiasco', but most people would say that in this job reading the newspapers is not an optional extra. One normally reads them to see what is going on. If the Minister chooses not to want to know what is going on, it is perfectly consistent with the approach he took in signing the determination—and sign it he did because he was required by law to sign it. In signing that document, he was spelling out the parameters of the administrative arrangements to be put in place.

  As Senator Bishop pointed out to me a moment ago, Minister Collins signed under section 93. Section 92 of the Act actually applied to MDS licences and it has no more or less ambit than section 93—it says `may' instead of `must'. Section 92A(1) states, `The Minister may determine . . . a price-based allocation system'. That means that it is up to the Minister to work out how to do it, and that is what he did. He took advice—if one could call it advice—and he asked his department to provide him with a form of determination, to which he put his name. One should not have a glass of beer in one hand and a blindfold in the other and say, `Where do I sign?'. One should actually read the document.


Senator Collins —I don't actually drink, Senator Alston.


Senator ALSTON —Then Senator Collins obviously had the blindfold in both hands. His defence is, `I looked at this, but I did not appreciate the significance of it'. Again, that is an appallingly weak defence because the Minister's obligation is to read the document thoroughly, take advice if he does not understand it, but, most of all, not to do these things in a vacuum.

  Senator Collins is not the new boy; he has been around for a while. He ought to remember the FM radio licence fiasco when Bond Media bid $23 million, fell over, forfeited about $100 and the next in line had to pay only $10 million to get the licence. That was an absolute farce. In the 1980s we were a laughing-stock because of that sort of behaviour. We chose, quite rightly, not to go for beauty contests, for all the reasons Senator Collins mentioned. We went for price-based allocation systems, but we did it on particular terms. As the Minister well knows, and as he should have known because he was the presiding Minister, we did it in relation to the third mobile telephone licence and also we did it in MDS. If there is one thing Senator Collins should have learnt in his term as Minister for Communications, it is that a price-based allocation system on previous occasions has involved the payment of a substantial up-front deposit. So there can be no argument that it is within the power of the Minister, the department, or both, to prescribe just that.

  Do not let us have any nonsense that somehow, because this is a price-based system, the Minister is not entitled to attach any terms and conditions. There are eight pages here, all spelling out the way in which it is to be done. One of the obvious terms and conditions was precisely that it not favour any of the parties. Indeed, why does the Minister at this stage, half way through the game, want to change the rules and to introduce an amendment which would now require the successive bidders, if the first lot fall over, to come up with 5 per cent? He is doing that because he concedes that it is perfectly proper to do it. In other words, it should have been done in the first instance. Why was it not done in the first instance? It was not done because someone else is to blame.

  For the past four or five days Senator Collins has vilified, castigated and kicked to death his own department, and now he says, `I will ask them to conduct an inquiry into themselves'. In other words, he is asking them to sign their own death warrant. That again, I would have thought, is so manifestly unfair that it is unconscionable. Again, the Minister is trying to deflect attention from his statutory obligations. He is the one required to spell out the ambit and the parameters. He is the one who manifestly has failed to do so.

  All I can say is that there could not be a clearer case of failure to exercise ministerial responsibility. It is worth just looking briefly at a couple of examples of how this has been defined.


Senator Walters —He has read the cover, but not the contents.


Senator ALSTON —That is right, but we cannot even say he is just a pretty face.


Senator Collins —Do you want to talk about Tony Staley?


Senator ALSTON —I will come to him in a moment. If Senator Collins had read the Financial Review, he would have seen one of the greatest backhanded compliments one could have in this game. It is the Bill Hayden line. Tom Burton goes through it and explains why poor old Senator Collins has to go. He says:

. . . Collins signed a determination outlining rules for the tender. It may well be his death warrant as a minister.

. . . .

  Cabinet had four chances over a period of two years to reject the new system.

He continues:

  Now wriggling on the hook, he has told Opposition Senators he will have a high-level departmental inquiry into how the omission occurred.

. . . .

  That would be far too easy. It is standard political play for a Minister under siege to blame the bureaucrats but, if the concept of ministerial responsibility is to have any meaning, then the evidence leaves no other conclusion than that Collins has to go.

Then, of course, he makes the point that Senator Collins has prior convictions. He says:

Collins cannot claim he is a first-time offender.

  He clearly never understood the impact of microwave technology.

We know of that absolute fiasco where he got himself in court, having to commit pious perjury and pretend that somehow it was all his decision, when we know who threatened to rip whose arms off and to what extent the Prime Minister (Mr Keating) called the shots on that little issue.

  Senator Hill interjecting


Senator ALSTON —But, as Senator Hill quite rightly says, that is a debate for another day. Going to Senator Collins's second prior conviction—and Tom Burton says in passing, of course, that that was a massive overreaction—he says:

  Collins was also the minister who presided over the debacle surrounding the tender for the Civil Aviation Authority's new air traffic control system. He not only presided over it, but strongly endorsed a process—

which was subsequently described as unsound and unfair.  Tom Burton comes to the Bill Hayden line, which I always remember because I remember this cartoon of Bill Hayden. They are all outside the Caucus and this bloke comes up to Bill and he says, `Bill, you're in big trouble. They all reckon you're a good bloke'. And that is what Tom Burton says. He says:

Collins is the sort of politician everyone likes.

I would not go that far.

An intelligent and genuinely nice bloke—

Again, I suppose he is trying to let down Senator Collins gently. But we can understand the thrust. He is basically saying, `A good bloke out of his depth shouldn't be in the big league and really should get back to running that Opposition in the Northern Territory, where they want him to go quick smart'. He has not taken the offer as yet, as I understand it.

  Therefore, when we look at what the concept of ministerial responsibility really means, I can do no better than to go back to the dark days of 1982 when Senator Durack was under siege in relation to the activities of a junior clerk. We had the likes of Senator Evans trotting out the doctrine of ministerial responsibility, quoting Malcolm Fraser. He said about Ministers:

They ought to be aware of all the major matters and therefore can be clearly and directly responsible for them. But if a major blunder occurred in a department—

and I would have thought that is precisely what Senator Collins has been saying in recent days—

of real importance to Australia—

and again we are talking, as I recall, in Senator Collins's terms, about 4,000 jobs and hundreds of millions of dollars; so it is of real importance if he wants to try to cure that Budget deficit, hoping to get his $389 million before the Budget—

. . . if the Minister were unaware of it, that minister should accept responsibility for the mistakes of his department and offer to resign.

That principle is not just one that Jack Waterford thinks is a good idea; all the writers on the subject say the same thing. We could not do better than go to a luminary of the stature of a chap called Robert James Lee Hawke. In deploring the reduction of the concept of ministerial accountability, he said that resignation was required of a Minister where a significant act or omission was theirs, or was taken at their personal discretion, or was a matter about which they obviously should have known and done something.

  What lawyers talk about is actual or constructive knowledge. In other words, if Senator Collins did not know, he ought to have known.

  That is precisely what Senator Collins ought to have known. He presided over MDS, he presided over the third mobile licence, he knew that they both attracted a substantial up-front deposit, and yet he signed the very document that did not allow that to happen. He simply required the payment of a mickey mouse $500. Indeed, as someone said to me yesterday, `You wouldn't believe this, but they didn't even want a bank cheque. I asked them if they would take a personal cheque and they said yes, that would be all right.' So one could even bounce one's own cheque. One would not even be up for $500, if one did not want to be.

  What we have is probably the clearest possible case. Again, just looking at what some of the journalists have been writing, the question now gripping Canberra is who should be held responsible for the process. If Senator Collins had his way, it would be everyone but himself. He started off by saying it was the Opposition, then it was the Senate, and now it is the department. He is running out of scapegoats. I would have thought that, apart from being utterly irresponsible, it is a shameless performance.

  If Senator Collins understands the very basic distinction, which he seems to show no interest in understanding today, between a merit-based and price-based system, I hope he will not have the temerity to stand up and say that a price-based allocation system would not have allowed him to attach any preconditions. The obvious precondition was to pay the 5 per cent. He could also have required the companies to be incorporated for at least three months, which would have taken one of these players out of the game immediately. He could have required that people did not have criminal convictions. He could have required that the people involved in those companies had at least filed an annual return.


Senator Collins —I don't know whether you could.


Senator ALSTON —One could, because the ABA has a statutory responsibility to look at the business record of the company.


Senator Collins —Correct. Have a look a the advice. But it was not lawful to pre-empt the role of the ABA.


Senator ALSTON —The great trouble Senator Collins has with that advice is that he was not aware of it at the time.


Senator Collins —I didn't want to be.


Senator ALSTON —You didn't want to be? So Senator Collins said, `For God's sake, don't tell me anything that might be relevant. Don't for a moment tell me anything that might involve any decision making on my part where I might have to exercise discretion. I don't want to know about it. Give me your final draft and tell me where I sign'.

  Senator Hill interjecting


Senator ALSTON —That is right, but if it goes wrong, we know who will be copping it. Senator Collins cannot simply say that there might have been interesting legal questions to be resolved. He had the discretion and was required to exercise judgment but did nothing. All he says is, `I saw this $500 but it didn't ring a bell with me, so I signed'. That is the classic example of an abdication of responsibility. That is what the game is all about.

  If ministerial responsibility means anything, it is being responsible for what one signs. In this context there were a whole range of discretions, far short of beauty contests, that could have attached to a price-based allocation system. It is not defined, as Senator Collins would know. All it really says is that price ought to be the ultimate determinant.


Senator Collins —It doesn't say that.


Senator ALSTON —But it does not say price only, because if it did one could not even specify that one had to put the bid in an envelope. We have eight pages telling us how it ought to be done; one of those points is that one has to put $500 on the table. If one could put $500 on the table then one could put $5 million or even five per cent, as the Government's amendment clearly concedes could have happened.

  The only reason the Minister is acting in this way is that he is now trying to cover his back. What he has done is to make it abundantly clear, in one fell swoop, that he does not think these two applicants will get to the line.


Senator Collins —That is not correct.


Senator ALSTON —It is. The very fact that Senator Collins said in the first paragraph that that was not his intention pretty much shows that he has a guilty conscience on the issue. It can be interpreted in no other way.

  What I said consistently was that there were very great concerns in the industry about whether this bid was a realistic one. As Senator Collins and I well know, it is a common belief that the major players bid only a small fraction of what is here. On the Business Sunday program Senator Collins piously said, `I cannot know and I will not know how many were there and what they bid'. But Beddall said the opposite. He said, `Of course, they were all very substantial bids'.


The DEPUTY PRESIDENT —Order! Mr Beddall.


Senator ALSTON —Sorry, Mr Deputy President. Mr Beddall appears to know. I hope he knows a bit more about ministerial responsibility. I hope Senator Collins will go off and get a lesson on the subject, and in due course accept his responsibility and do the honourable thing.