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Wednesday, 19 May 1993
Page: 828

Senator HILL —My question is directed to the Minister for Transport and Communications. I remind the Minister that on two occasions yesterday he declined to say when he first became aware of technical deficiencies in the MDS tender process yet later told the Senate that he had been aware of the truth since February. I therefore ask the Minister: why did he allow the Commonwealth to consent to orders being made by the Federal Court which, in the words of Gyles QC, `assumed the validity and effectiveness' of the tender process when he was by then acutely aware of these technical deficiencies? Is it not a fact that the decision to withhold this information from the court was taken against the advice of counsel for the Commonwealth?

Senator COLLINS —The answer to the last part of the question is no. I reiterate what I said in the Senate yesterday: the closest I came to these technical deficiencies, as I told the Senate yesterday, was when there was a meeting in early February—the Senate will recall that early February was when the Federal election was being announced—at which a communication adviser on my staff was present. At that meeting there was a general understanding that there was some technical deficiency in the documents. That was never advised to me and, I might add—I am happy for the paper to be laid out—neither was there any reason for it to be, because the advice that was being sought, and the Senate will have it, was whether the Commonwealth had a strong case for getting the court to confirm the revocation.

  The department received written advice from the Attorney-General's Department on 22 February which confirmed—and the Senate will have this document—that the Commonwealth's case to get the court to support the revocation was very strong. There was only a general understanding, even then, of my ministerial adviser, who cannot honestly recollect it being specifically mentioned—

Senator Ian Macdonald —It was his fault then.

Senator COLLINS —Not at all, because the defect was assumed to be corrected if the Commonwealth won the court case. I heard a number of comments made by Mr Kerry Stokes this morning on the 6 o'clock edition of AM, and I agree with every word that he said this morning. It was headlined as `More bad news for the Government', but it was nothing but good news for me because his understanding of the situation and his assumptions that were made as a result of the court order were precisely mine.

  That early February meeting was as close as my office even got to it because it was considered, as a result of the advice that was received from the Attorney-General on 22 February—and honourable senators will see that advice—that the Commonwealth had a strong case for getting the revocation to be supported by the court. What was then intended, and that is why this was not seen as a problem at that time, was that all the instruments—the determination, the gazettal notice and the information paper—would then be reissued, thus correcting the problem.

  When the court case was not resolved in the way that our advice suggested it would be, it was then also assumed by the legal advisers that the court taking over the process meant—I quoted from the court order yesterday, the one that Mr Stokes quoted this morning, and I quote it again—that the Commonwealth `should accept and treat as valid any tender or revised tender complying with a ministerial direction under which the tender process was conducted'.

  The first formal advice that I received—which I will also table—was in a minute from the department dated 8 April which said:

The order—

that is, the court order from which I have just quoted—

enables the MDS tender process to be completed under the existing ministerial determination.

I am not sure how much more clear-cut the advice could be. I agreed with every word Kerry Stokes said this morning. He and I both thought—the lay people to whom Mr Gyles referred—we had a reasonable understanding, that we had a consent order, with the court saying that the process was valid and would then continue. If Mr Stokes can succeed in persuading the Federal Court that is the view it should take, I will be perfectly happy. Regrettably, however, I doubt that will be the case.  Mr Stokes referred to semantics being discussed; I think I described it more accurately yesterday as very arcane legal argument.

The PRESIDENT —Order! The Minister's time has expired.

Senator HILL —I ask a supplementary question. I think the Minister's answer is close to what is known as the `Miles Kupa defence', where a Minister distinguishes his knowledge from that of his staff. Next there will be a statutory declaration from the Minister acknowledging liability on the part of his staff. I ask the Minister what legal advice the Commonwealth had prior to the meeting in February that discussed the technical deficiency and whether he will table that legal advice.

Senator COLLINS —I have already given a commitment to table in the Senate all the paper that I am able to. I say again to Senator Hill that the first written advice I saw subsequently, which will be provided to the Senate, was advice from the Attorney-General's to the department dated between 19 and 22 February—I think the correct date is 22 February—which lays out the strong case that the Attorney-General's believed the Commonwealth had for having the revocation supported by the court. It also confirmed the legal advice that the technical deficiencies were therefore not a problem. That is why it was never discussed with me because, on the basis that the court action was successful, it was intended to redraft all the instruments.

  When the court action resulted in a consent order—which is what happened—I instructed my legal representatives. The day before they went to Perth, I said to Mr Heydon, `As we are as anxious as Mr Stokes to have this process go ahead, it should be possible to get an agreement'; and we did.