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Thursday, 13 May 1993
Page: 521


Senator COLLINS (Minister for Transport and Communications) (11.18 a.m.) —The first point is that I do not want to detain the Senate long on this matter because, as Senator Bourne correctly said, everybody is sick of it. This is an issue of great policy importance to the Government and, as the Minister, I am dealing with it. However, I have to say that I do not disagree with Senate Bourne's assertion that everybody is sick of it. I had this brought to my attention in a very direct way just the other day on an aircraft flying between two of our major cities, which I spend half my life doing. Senator Nick Bolkus was sitting next to me on the aircraft and one of the flight attendants came up just to have a chat. She said to me, `Senator Collins, I saw you on TV the other night in the middle of a brawl about pay television'. I said, `That is right', and she said, `You know, all you politicians are excited about this business. Every time I pick up the newspaper, every time I watch television—pay TV, pay TV, pay TV. You know, nobody I know gives a hoot about it'.

  There is a reason for that, and I found it where I always go for my advice about politics—in Machiavelli. It is a famous quote from The Prince. I have told the Parliament before that I think the two greatest books ever written on politics are The Prince by Machiavelli and Fear and Loathing on the Campaign Trail by Hunter S. Thompson. Machiavelli was not the evil, horrible man that people have made him out to be. He just had the dreadful bad taste to put into one book the greatest collection in the world of truth about politics. I was looking through this book and I found a reference in Machiavelli to pay television. I looked in the index under P, and there it was. I think the reference in Machiavelli to pay TV is simply a reference to the media generally. Perhaps I am being unreasonable, but it might account for a lot of the hysteria whipped up in the media about pay television.

  Senator Kemp interjecting—


Senator COLLINS —It is not a question of self. Honourable senators should have a look at the track record. They should go back to the decisions taken by previous conservative administrations about the media. Senator Chapman should go back and have a look. There is an assertion that this Government has uniquely attracted criticism about this matter and that this Minister has uniquely attracted criticism about it. That is nonsense. If honourable senators go back over the last 20 years they will find that the media has always been a controversial matter and politicians have always attracted criticism for it.

  There is, I think, a fundamental reason for that and it is to be found in Machiavelli, in one of the more famous quotes from The Prince. Some years ago, when I told someone in my office that I regarded this book as being the best political text available, I was presented with a bound copy of it to replace the tatty old paperback that I had. This is what Machiavelli said about the media:

  It should be borne in mind that there is nothing more difficult to arrange, more doubtful of success and more dangerous to carry through than initiating changes in a state's constitution. The innovator makes enemies of all those who prospered under the old order and only lukewarm support is forthcoming from those who would prosper under the new. Their support is lukewarm, partly from fear of their adversaries, who have the existing laws on their side, and partly because men are generally incredulous, never really trusting new things unless they have tested them by experience. In consequence, whenever those who oppose changes can do so, they attack vigorously and the defence made by the others is only lukewarm. So both the innovator and his friends are endangered together.

They are true words. I want to turn to an issue of real substance. It is very important to me because it is currently being tested in the Federal Court. I was prejudged on this issue yesterday by someone here who made an outrageous assertion about evidence that I gave under oath in the Federal Court.

  As I said in the House yesterday, it is not appropriate for His Honour Mr Justice Wee Willie O'Cheescake to come into the Parliament and make outrageous assertions. They were outrageous and totally out of order, but I let him go. Senator Alston alleged this morning, in a much more proper manner but, in effect, as defamatory a manner—not that it is defamatory here because it is privileged—that I actually influenced my legal advisers to give me advice that suited my case to make the decision.

  I might have done things as a Minister that people can now judge as being sensible or silly, but I could not contemplate—and I use that word in its strongest form—as a Minister, taking a direction which, according to specific advice that I had been given, was not lawful. I could not contemplate in any way influencing, or even attempting to influence, the outcome of such advice. To me, as a Minister, that is just unthinkable. Senator Alston said that there was not one skerrick of evidence in the Federal Court transcript. That is not correct. I refer Senator Alston to the evidence I gave. I know it well now; it is on page 65 of the transcript. I said that I had been advised in writing that I had express power to do what I did—in the most important document of all. That was the actual minute I signed, approving this course of action.

  My department, which has its own legal department, would never have given me that advice—ever—if it had not considered that the direction was lawful. I told the Federal Court that I had had subsequent legal advice from the Attorney-General's Department. As it happens, it was advice that had the concurrence of the acting Solicitor-General, Mr Dennis Rose QC, a person who, from barristers I have spoken to, is very highly regarded in the private bar as a constitutional expert. I told the court that. But it would not be proper, and I think Senator Alston would agree with me, to make public the details of this advice, which I have in my hand, seeing that it is still under consideration by the judge. That would not be appropriate, but there is nothing wrong with me reading out the short answers because I told the Federal Court in the witness box that I had had such advice.

  I just make a final point in terms of these really outrageous assertions—and they are serious. They are also before the Federal Court. The Federal Court has three matters before it. The first and second of those three matters are to do with the legal decision of the court in respect of the lawfulness of my direction. The third one is the reason I went to court when I did not have to. I was not called by the applicants. My own barristers told me that whether I went or not was a matter entirely for me. They said that I did not have to and did not need to, but they said that I had to make a decision on the third matter as to whether I voluntarily went to the Federal Court.

  I have to say that when I read the applicant's submission I got very angry indeed. There have been a lot of angry people, and some of them might consider themselves to be rightly aggrieved by what has happened, but I get angry too when I am accused of abusing my office. Making a wrong decision is different. Ministers get accused of that all the time and quite often are guilty of committing it. No doubt I have been and will be. I have been in Parliament 16 years and on both sides of the House, in opposition and government, I have had, despite my rough tongue at times, a very high regard for parliamentary process, a very high regard for the distinction between the Parliament and the courts, and a very high regard for the principles of ministerial responsibility. When I saw in a written submission to the Federal Court an accusation, which has to be tested by the Federal Court, that said that I abused my office, that I issued a direction knowing that it was unlawful, I said to my lawyers, `Try to stop me from going into the Federal Court', and I did.

  I will tell honourable senators how clear the advice was. After consideration of a whole range of policy issues over those 48 hours, my department advised me that I had the power to do what we had been discussing—to take up one of those options.


Senator Alston —In writing?


Senator COLLINS —In writing. There has been gross misrepresentation of the departmental memos produced from meetings the day before. We were discussing a whole range of options then which were not finally adopted. One of those options, and Senator Bourne will recall it, was issuing a direction to proscribe MDS technology to narrowcasting only. That means to prevent it from ever being used—and I see Senator Bourne nodding in agreement—as a broadcast medium for pay television. That gets to the heart of how badly this debate has gone about what my position was. Rightly or wrongly, the Australian Democrats—and I acknowledged this publicly at the time—proposed in the course of the negotiations on this Bill last year that we should legislate to restrict MDS only to narrowcasting.

  I recall that Senator Bourne stood here in this gangway, in this aisle, and I was sitting here. She was in this gangway saying, `Look, you really should consider introducing amendments to the Act so that it is narrowcasting only'. That opportunity was presented to me.


Senator Bourne —You might regret it now!


Senator COLLINS —I know. I might regret it now, but I do not regret it now. It was the right decision to reject that at the time, and with the greatest respect to Senator Bourne, I assert it now. I said to Senator Bourne, `I really do not want to agree to that'. I have not said this publicly before, but this is what happened. I said, `I do not want to agree to that'. Senator Bourne is sitting there so she can get up and call me a liar if I am lying. That is why I am saying it while she is here. I said, `I do not want to agree with that'. Why? Firstly, it is not fair to the holders of the current MDS licences, like Steve Cosser and others. `We cannot do that'. I said they should have their place in the sun, along with the satellite, to compete in a technologically neutral model—Senator Chapman. I will talk about the furphy that has been run because an impression has been created in the public mind that somehow everything I have done has been to knock MDS out as a broadcast medium.

  Senator Bourne knows exactly the reverse is the case. I said it is not fair to Steve Cosser, that it is not fair to anyone holding the MDS licences to knock them out. Further, we should not prevent the establishment of a hybrid system of satellite to MDS as a rebroadcaster. We know there are parts of Australia, such as Darwin, Hobart and various other communities, that will not get a strong enough primary signal to get the small dish reception that 80 per cent of the population will get. So we should preserve the right of MDS to be a broadcaster for pay television.

  So Senator Bourne knows that my central policy decision and principled position on this is exactly the reverse of the assertions that are being made. I had the option to do what I am now being accused of doing, and I rejected it. If I had said yes to Senator Bourne, that is where MDS would be now and would have been since last November—restricted by legislation. It would not have mattered if the Opposition had opposed it; I had the numbers to carry it, if I had agreed with Senator Bourne. I see her nodding in agreement again. I rejected it, and why? Because I did not think it was fair on Steve Cosser. I have not got an axe to grind for or against Mr Cosser. He is a very well-known identity in the community. I like him; he is a nice bloke. I have only met him once, I think, and talked to him on the phone. He is a decent bloke and he has a right to carry on his business—and these amendments will not change that. What they will do is give him the right in the way Parliament originally intended. That is not to give anyone an unintentional head start on another technology, which is what we finally did, inadvertently. But it is to allow him to compete along with everyone else—for the consumers to make a choice. And that is where Senator Chapman missed the point in his contribution.

  I point out the obvious and it is contained in the Hansard and in the legislation. Would it have made sense for this Senate to have agreed to excise the pay TV legislation from the Bill, send it off to a Senate committee for months of deliberations in which I would be involved as Minister, to put the ABC in the satellite, to put all sorts of restrictions on it, industry conditions being the most important? The two most important conditions put on the satellite were, in my view, a role for the ABC and the need to involve Australian industry in the product. None of those conditions were imposed on MDS, none of them.

  So it was not technologically neutral. It was only technologically neutral if it was based on the assumption, on the advice we got, which now was wrong, that MDS would not be a threat to the viability of the satellite. We were all, collectively, wrong about that, except the Democrats. That is why I am making this point at length, because they were concerned it would be a threat to satellite. They doubted the advice that we got, and they wanted to restrict MDS to narrowcasting only and knock it out of any role in pay at all, and I rejected that. Despite everything that has happened now I want to say this: despite all the criticism, despite the heat that is being put on, I know that was the correct decision to reject that opportunity that was put in front of me, because I can tell you none of this would have happened. All the screaming would have been last November, not now.

  I do not think it is fair, because it would not have been technologically neutral. All that these amendments do, as Senator Alston would know, is to assert firmly, in legislation, the position we all thought we were adopting last year. That is, it will be truly technologically after these amendments are passed, in that pay TV can be delivered by broadcast MDS but only on an equal footing with all other technologies. It will not be given a head start. That is important in terms of the central policy issues of this Government and of this Parliament.

  We get back to a very specious point that Senator Alston raised. He would know that it is specious. His point is that, if we pass these amendments, it is in some way prejudging the court decision.


Senator Alston —Mr Acting Deputy President, I raise a point of order. The Minister is, obviously, free to say as much as he wants to say on a whole range of areas, but he is not entitled to impugn the integrity of other members of this chamber and to assert that they know something to be wrong and that secretly they are in agreement with him. I do not mind his saying anything he likes, but I invite you to say that he should not be able to assert that other members of the Senate know something which is quite contrary to the position they themselves have been putting.

  The ACTING DEPUTY PRESIDENT (Senator Teague)—Strictly on the point of order which Senator Alston has raised: it is not orderly for a senator to impugn the motives or the bona fides of another senator. It is appropriate in debate to say that a proposition is specious, but it is not orderly to say that a senator knowingly is specious. I ask Senator Collins to withdraw that.


Senator COLLINS —Of course I do. What a shame you were not in the House, Mr Acting Deputy President, on the recent day when, as shown in Hansard, Senator Alston accused me of being a pious perjurer. I was not going to dwell on that, although Senator O'Chee did the same thing yesterday. In terms of impugning a person's reputation, how could anyone make much more of an assertion than that I perjured myself?

  The specious position that Senator Alston is taking—which is all I said—is that somehow this is prejudging the court decision. What a load of rubbish. Courts do not set policy, parliaments do. What the Federal Court will do, as it can do, is to enable us, at the appropriate time when the judgment is brought down, to find out whether the legal advice I got, on which I made that direction, was lawful. The honourable senator should not tell me that this is not something that happens all the time.

  I recall a case in which I was personally involved, in a court in the Northern Territory, on the Aboriginal Land Rights (Northern Territory) Act 1976. A faxed message arrived from the then Aboriginal affairs Minister, Mr Viner, on the day when the proceedings were to be tried, advising the litigants that in the next session of parliament he would be amending the Act to defeat the action in court, even if it happened. Senator Alston should not tell me that it is unusual; he would know that it is not.

  The principal point is that we will do it, but to nail down this nonsense about my knowingly giving an unlawful direction—I take great exception to that accusation—I will tell the Senate how `unlawful' it was. I got written advice from the department after discussing a whole range of options. Some options were being discussed the first day and might have been unlawful. This is my advice from the department, which gave rise to the action that followed:

You have express power.

What did the A-G's advice say when we sought it? I will give the short answers, because I can.


Senator Alston —Mr Acting Deputy President, I raise a point of order. Senator Collins has gone to great lengths to say that he does not want to prejudice the outcome of the court proceedings. Therefore, it can be of no relevance at all to know what was—


Senator COLLINS —That is not a point of order.


Senator Alston —Just a moment. It can be of no relevance at all to know what was subsequently said to the Minister by the department or the Attorney-General. That can have no bearing on the basis for the decision he made at the time. It is therefore utterly irrelevant to that matter, but also, I submit, it cannot be helpful in any part of the debate. It can only be used by him, it would seem, in order to try to ensure that the judge is aware of an opinion provided after the event. I do not mind if Senator Collins wants to table the advice which he got prior to making the decision and from which he has just quoted. I am simply saying that—


Senator COLLINS —What is your point of order?


The ACTING DEPUTY PRESIDENT —Senator Alston, I ask you to resume your seat. There is no point of order in what you are saying. It is a debating point that you are making and I ask Senator Collins to continue.


Senator COLLINS —Mr Acting Deputy President, I will finish on this point. That is a nonsense. It is on page 65 of the transcript. The judge was told that I had this advice—my being asked by the applicant's counsel, not mine. These are the short answers from the Attorney-General's Department, with the concurrence of the Acting Solicitor-General:

  Q. Are the Minister's Notification of Policy and Direction of 29 January 1993 effective?

  A. Yes.

  Q. If there is any defect on those instruments, could it be rectified and if so, how?

  A. There is no need to rectify the instruments.

  Q. If there is any defect in the instruments, how should the ABA—

this is important—

treat the instruments in considering any relevant applications for a subscription television broadcasting licence which uses MDS?

  A. As the instruments are not defective, the ABA should act in a manner consistent with them.

I will not table this because the reasons are not relevant, but they are the answers that I told the Federal Court I had.

(Time expired)