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Wednesday, 1 September 1993
Page: 748


Senator SCHACHT (Minister for Science and Small Business and Minister Assisting the Prime Minister for Science) (11.54 a.m.) —I rise to speak briefly to this motion. When we started this debate, there were no amendments circulating. We have now had two amendments circulated and one withdrawn, and we have Senator Spindler's amendment which is to delete paragraph (b) of Senator Hill's motion. The argument put by Senator Spindler and supported by Senator Chamarette—and, now, by the opposition—is that this should remove the government's biggest concern about the confidentiality of drafting, in which area the government has every right to maintain its confidentiality.

  The point I make relates to paragraph (a), which reads:

. . . any opinions provided by the Solicitor-General, the Attorney-General's Department or the Office of Parliamentary Counsel concerning either:

(i) the drafting and validity of the Taxation (Deficit Reduction) Bill 1993; or

  (ii)the question whether the kinds of provisions which are contained in the Taxation (Deficit Reduction) Bill 1993, if enacted, may lawfully be combined in a single bill. . .

My view on that—and I think it is a very reasonable proposition to put—is that if the Solicitor-General, the Attorney-General's Department and the Office of Parliamentary Counsel are doing their job properly, as one would want good public servants to do, one would expect them to provide a range of advice and options. That is what good public policy should be about, what good public servants and a public service is about. If they believe that in future they may have that advice retrospectively tabled in parliament, they will therefore feel constrained about the advice they provide as good officers of the Public Service. One would require them to provide that advice. Ministers will be very cautious about what they ask their public servants to provide to them.


Senator Watson —That has always been a problem with freedom of information anyway.


Senator SCHACHT —It may turn out that information which the public servants thought was confidential could be tabled in parliament. This is germane to the development of public policy. Those opposite are establishing a precedent and issuing a warning to public servants. That warning is, `Be careful what you say to your minister, the advice you give in confidence, because it could be tabled in parliament. If the parliament does not like that advice or queries it, you can be brought before the bar of the Senate and questioned about it'. That is a possibility.

  When we started this debate after the suspension of standing orders, either the motion would have been carried in its entirety or it would have been defeated. I think the Democrats, the Greens and Senator Harradine quickly floated amendments in an attempt to see whether a compromise was possible between the government and the opposition. I suppose if one is the third, fourth and fifth force in the Senate as a minority party, one's role may be to see whether such a compromise or consensus is possible.

  But the fundamental issue is still there before us. The issue is how are we to conduct decent public policy as ministers and as a government when we want communications between ministers and public servants to be ridgy-didge about the range of information available. How can we do that when we know full well there now is a precedent by which public servants can end up before the bar of the Senate or before a committee and be subject to severe penalties?

  I know people believe that the Solicitor-General has a particular role and that that advice should be generally available. But when we refer to the Attorney-General's Department, we are talking about a department which is administered by a minister. That minister takes responsibility for that department and for the good, the bad and the ugly that department puts up. I think that those opposite are putting pressure on public servants about the way in which they carry out their functions and duties as public servants who are responsible to a minister.


Senator Watson —They might not have provided the advice.


Senator SCHACHT —The point is that they may not have done so. But the precedent that is being established by those opposite is a warning to a public servant at any level in the Attorney-General's Department that if one puts a note at the side of a document, it can now be tabled in the parliament as the result of some opinion. A public servant sees as part of his or her public function within the Public Service Act the provision of advice. I think that we as ministers want public servants to provide us with a range of advice and the arguments for and against.

  When talking about parliamentary responsibility, let us remember that, in this chamber and the lower house, the person who has to take the heat is the minister. That is what one gets elected to do, and that is what elections every three years are about. In the end, the minister must stand and be judged according to his or her comments and arguments. In the end, it will be the public who will decide whether they agree with the minister by electing him or not at the next election. That is the fundamental issue of sovereignty of the parliament. Ministers have to take responsibility for what is given to them, how they portray it and how they use it in the public policy debate. I think that has been lost sight of in this motion. I think that is a warning the parliament ought to be aware of.

  I can think of other examples. For example, let us envisage that at some stage in the future the government had an absolute majority in the Senate. Let us assume that an individual senator went and sought advice from the Clerk of the Senate about amendments he or she may choose to move in the chamber itself. What would happen if a government used its numbers, whoever the government may be, to have that confidential information from the clerk to that individual senator tabled for debate in the Senate? I think that would be an outrage. But it is advice that a member of parliament, a member of the Senate, is using in this forum as part of argument. That is the area which those opposite are opening up to precedent.

  That may be an exaggerated example, but I would ask those opposite to be very careful about affecting the confidential relationship between any senator and the advice that they get. I favour the senator, whether they be a minister or a backbencher, standing and arguing his or her case and being judged accordingly in this chamber. The public will make up its mind. I think that if we seek to put pressure on public servants, we will affect the level of advice. I have no doubt that if this becomes a trend in the future, ministers and senior public servants will make sure that they do not have advice in writing but get it verbally. That may well affect good government.

  So although the minor parties here have tried to put an amendment as a compromise, I still think it does not address the fundamental issue about the confidentiality of policy making and the right of public servants to provide open and decent information to their minister, without their fearing that at a later stage it will be tabled in this place.

  Question put:

  That the amendment (Senator Spindler's) be agreed to.