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Thursday, 13 May 1993
Page: 562

Senator ALSTON (Deputy Leader of the Opposition) —by leave—I move:

  That the Senate take note of the answer given by the Minister for Transport and Communications (Senator Collins) in response to a question without notice asked by Senator Alston on 13 May 1993 relating to the tendering process for subscription television licences.

Apart from Senator Collins having committed what I would have thought was an egregious offence in not only treating this chamber with contempt but also refusing to answer a question which was so simple that it merely asked whether a document exists, I submit that he has been guilty of a much more serious offence. Yesterday, when being asked a question by Senator O'Chee about advice that had been received and on what basis he had given a direction to the Australian Broadcasting Authority, Senator Collins conceded that he had had oral advice from his departmental officers. It was put to him that the only written advice he had had was from John Doherty, a senior legal adviser in the department, and that that was to the contrary. Senator Collins said:

I did receive advice that I had power . . . If I had not been told that that was lawful, I would never have made it.

He declined to elaborate on whether the advice was oral or written on the grounds that the matter was sub judice. We know that the notion of sub judice has absolutely nothing to do with this particular situation because that, of course, is a question that goes to the merits of a case before either a jury or a magistrate. It clearly has no relevance to the situation of a judge sitting alone who has already reserved his decision. In any event, it is beside the point.

  The much more serious proposition is that, following that statement to the Senate that he had received advice, which he declined to identify, Senator Collins has gone on today to identify that advice. He identified it by tabling during an answer a copy of the advice he received from Roger Beale, a senior departmental official, which accompanied the draft notification to the ABA. As I understand it, what Senator Collins relies upon in support of the proposition that he had written advice in favour of his action is this:

Under section 161 of the Broadcasting Services Act, you have express power to notify the ABA of general policies of the Government that are to apply to the ABA.

This is sophistry of the highest order because that is simply a provision in the Act and the whole of the legal advice Senator Collins got in writing from Mr Doherty—

Senator Collins —I haven't got anything in writing.

Senator ALSTON —Senator Collins got advice from Mr Doherty. Does he want to deny that?

Senator Collins —Produce it.

Senator ALSTON —Does he deny this?

Senator Collins —Wait until next week and see.

Senator ALSTON —Once again Senator Collins is treating the Senate with contempt, pretending that somehow some extra-parliamentary committee appointed to suit his own convenience, to sheet home blame to everyone but himself, has standing ahead of this chamber. We all know that it has not. The written advice—Senator Collins conceded this in the Federal Court, as I understand it—says this:

Any policy or direction issued by the Minister must not be inconsistent with the scope and objects of the Broadcasting Services Act. The ABA is at law required to act in accordance with the legislation as it stands. It is questionable whether the ABA could take into account, or be directed to take into account, a proposed change to the legislation. The ABA does not seem to have a legitimate basis to adopt the approach of rejecting all applications put before it for subscription television broadcasting licences via MDS. A direction not to grant MDS licences for subscription television broadcasting services seems to cut across the objectives of the legislation.

I would have thought that was all very clear, especially to someone who fancies himself as having an understanding of the basic principles of administrative law. The proposition is that one reads power provided in an Act within the context of that Act. It does not mean that one is at large. If it says that one has power to give directions, one can give directions only within the objectives of the Act. That is precisely what the written advice was about. The written advice raised very serious doubts about whether Senator Collins had any such legal power, and he well understands this. In his own words, he is not a mug, whatever else he might be, and he ought to understand—

Senator Collins —No, I said that you are not a mug.

Senator ALSTON —So he concedes that he is a mug. I apologise; I had not meant to embarrass Senator Collins in that way. It ought to be abundantly clear that the point at issue is whether that express power was indeed within the terms of the Act. If it is not, of course, it is ultra vires. That was a very important legal question on which Senator Collins had precise legal advice. And all the written advice raised all sorts of doubts about it. Apart from being couched in diplomatic language, I would have thought that any sensible person reading that would have said that it was a no-no. It was clearly telling Senator Collins, in effect, that it was contrary to the Act and that he could not do it.

  Therefore, what Senator Collins had was legal advice saying that he was not able to give the directions he did. Yet he stands up here and tells the Senate that he had advice supporting his actions. If that is the best Senator Collins can do, I invite him to indicate whether there was any express legal advice other than that of Mr Doherty's; whether in fact he kept notes of any discussions he had by telephone with any of his legal advisers; or whether what he really did was ignore written advice that this was ultra vires, simply pretend that he talked a number of advisers into a certain position, and then go ahead and do precisely what he wanted to do in the first place, irrespective of any advice to the contrary.