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Tuesday, 23 June 2009
Page: 4056

Senator CORMANN (5:26 PM) —by leave—I move:

That the Senate take note of the reports.

Senator Wong —I was not aware, Senator Cormann, that you were going to seek leave to do this. I seek some indication of the length of time on this issue.

Senator CORMANN —I seek some clarification from the chair. I was led to believe that I would be able to speak to this motion.

The ACTING DEPUTY PRESIDENT (Senator Ryan)—Senator Cormann, you can speak for 10 minutes.

Senator CORMANN —May I also congratulate you on your ascension to your high office, Mr Acting Deputy President Ryan. As we consider the 2009-10 budget estimates reports that have just been approved for printing, I thought I should reflect on the early operation of the Senate order of continuing effect in relation to public interest immunity claims. This order has been in operation for the first time in these Senate estimates hearings.

I remind the Senate that the order that was passed on 13 May 2009 noted that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate. I am sad to advise the Senate that ministers and officers are still continuing to refuse to provide information to Senate committees without properly raising claims of public interest immunity. Indeed, very senior ministers and very senior officers in the government are still refusing to provide information to Senate committees without properly raising claims of public interest immunity.

I thought I would bring to the attention of the Senate a number of particular examples that I was involved in personally and that some of my colleagues were involved in over the budget estimates fortnight. Before doing so, may I remind the Senate that a minister or an officer who does not want to provide an answer to a particular question, who does not want to provide information held by government, has to claim a recognised public interest ground and then, if requested to do so, refer the matter to the responsible minister who has to both confirm the ground that is claimed and make a statement of reasons as to why it is not in the public interest for a particular piece of information to be provided.

The recognised public interest grounds, so far, are prejudice to legal proceedings, prejudice to law enforcement investigations, damage to commercial interests, unreasonable invasion of privacy, disclosure of executive council or cabinet deliberations, prejudice to national security or defence, prejudice to Australia’s international relations and, indeed, prejudice to relations between the Commonwealth and the states. They are the recognised public interest grounds to which an officer or a minister can point when, in the judgment of that officer or that minister, it would not be in the public interest to release a particular piece of information that has been asked for by a senator in a Senate committee hearing.

To refer to the report of the Finance and Public Administration Legislation Committee as an example, it lists the questions asked of the Department of the Prime Minister and Cabinet on a whole series of issues and has a catch-all paragraph listing issues discussed—like changes to the private health insurance rebate, the National Health and Hospitals Reform Commission, community cabinets, Medibank Private and so on and so on. One of the issues not listed in this particular paragraph is the government’s proposal to increase the tax on alcopops. As it so happens, I did actually ask a series of questions on that particular matter. In fact, there was quite a lengthy exchange between Senator Faulkner and me, Senator Faulkner being the minister at the table, in relation to seven pieces of advice that were provided to the government, or that were in fact provided to the Prime Minister, since the February estimates in relation to the proposal for an increase in the tax on alcopops. I asked for a copy of that advice and was quite directly told that it was a matter of advice for government and that they could not provide information on advice to government, or words to that effect. I responded:

Minister, are you claiming public interest immunity?

We went through a very lengthy debate but, to cut a long story short, at the end of it the minister sought to refer to the FOI Act as containing the justification, because there was some provision in the FOI Act around why certain information that forms part of advice to government should not be provided. That was completely irrelevant, because there is a very clear proviso at the end of the relevant government guidelines which says that FOI exemptions are only relevant ‘where disclosure would be contrary to the public interest’.

To reflect on this particular case study for a minute, I asked the official whether the advice that had been provided to the Prime Minister in relation to the increased tax on RTDs was part of the cabinet’s deliberative processes, or whether it was advice to government. Of course, they are two different things. If something goes to cabinet then it is part of the cabinet deliberative process, and that is one of the recognised public interest grounds. However, if something is just part of routine advice to the Prime Minister or to a minister, as is requested from time to time, it does not fall under the cabinet’s deliberative process exemption. There has to be a particular reference to a public interest ground. But, when I asked the question, the minister essentially refused to point to a particular public interest ground. The matter is not resolved yet because I have, since the estimates, written to the minister asking him to reconsider the way he handled this particular issue during Senate estimates.

The question arises here: why would it not be in the public interest for the Senate committee that is investigating and scrutinising these measures to have access to the advice that has been provided to government? Would it prejudice our national security or defence? Would it prejudice legal proceedings? Would it prejudice law enforcement inquiries? Which one is it? This is just one of a number of examples, sadly. Senator Conroy during Senate estimates was a particular culprit when it came to refusing to follow the proper processes established in the Senate order on public interest immunity claims. On one occasion Senator Coonan was asking questions of Senator Conroy in relation to the employee share scheme budget measures. He claimed that it was advice to government and the question had to be rephrased. I asked him:

Are you claiming public interest immunity?

He, dare I say it, sneered at me a bit and responded:

Any time you want to try, go for it. Any time you want to try it on, Senator Cormann, feel free.

I pointed out:

You know what the proper process is.

He said:

Any time you want.

I could not say he had an attitude of wanting to reveal information, but here is the clincher. I sought to ask a question of the senior official at the table, asking whether he was aware of the new order of the Senate and the processes that had to be followed, and here is Senator Conroy’s answer:

It is of no relevance to the official. It is only of relevance to a senator.

Senator Conroy is totally ignorant of the order passed by the Senate and, sadly, he is only one of a number of senior ministers and senior officials who are quite ignorant of the proper processes of the Senate. You might remember that after the coalition budget reply, a few days later, an article appeared in the media revealing Treasury analysis of the coalition’s alternative savings proposals, the alternative to the means testing of the private health insurance rebate, which was to increase the excise on tobacco by 12.5 per cent. Articles in the media talked about ‘Treasury analysis, which was released yesterday, showed that over a 10-year period the Commonwealth would be $3.2 billion short in revenue’. That is a serious allegation and it is something that surely a Senate estimates committee ought to scrutinise. We asked:

Given that this particular advice has been provided to the media, will you provide us, as the Senate committee responsible for scrutinising your budget, a copy of that same advice.

They had to take it on notice. We are now three weeks down the track and we still have not been provided with the information which the media was provided with on 17 May. Can someone explain to me why it is not in the public interest for Senate committees scrutinising the budget to be provided with a copy of Treasury advice to the government on a measure like this, which is highly in the public interest, when the media has been provided with that same information? Can someone explain that to me?

I will soon run out of time, so I want to briefly reflect on the fact that a number of reports have been tabled but answers to questions on notice submitted during the Senate estimates process have not, by and large, been provided yet. There are still outstanding a whole range of answers to serious and significant issues in the budget. The government was very keen for us to push ahead with a whole range of these measures, including having a one-day inquiry two weeks ago into the private health insurance rebate changes. This was even though we still at that time had neither the Hansard transcript nor the answers to questions asked. I seek leave to continue my remarks later.

Leave granted; debate adjourned.