Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I also want to address some remarks to the Royal Commissions Amendment Bill 2006. I note that Senator Ludwig presented the detailed case on behalf of the Labor opposition, but I want to add what I think are some important remarks regarding this matter. The bill is a response to issues of legal professional privilege that have arisen at the Cole royal commission into the AWB wheat for weapons scandal. The bill provides a procedure whereby royal commissions will be able to determine whether or not claims of legal professional privilege over documents sought by an inquiry are valid. It is a straightforward change and one that Labor supports.

However, the context of this bill, the wheat for weapons scandal, is characterised by the Howard government’s incompetence in discharging its responsibilities and its culpability in these matters, and its more recent attempts to avoid scrutiny, both at the inquiry and in the parliament. The need for this bill arises out of a dispute between the Cole commission and AWB over that company’s claims of legal professional privilege over the documents sought by the inquiry. The bill provides clarification of an issue arising out of the Federal Court’s findings in the case between the commission and AWB. The court determined that the commissioner has powers under the Royal Commissions Act to determine whether a document is covered by legal professional privilege, but it did cast doubt over a commission’s power to demand inspection of a document to make such a determination. This bill explicitly provides that power to a royal commission.

The fact that we are debating this bill today reflects adversely on the competence of the Attorney-General. Back in March this year, the shadow minister for foreign affairs and the shadow Attorney-General jointly alerted the government to the need for action to address AWB’s exaggerated claims of legal professional privilege and the hindrance that this was proving to the Cole inquiry. At the time, the Howard government’s Attorney-General dismissed Labor’s call as misconceived. It took the delay of an expensive case in the Federal Court to prompt this legislation—legislation which we have been calling for for months and which was arrogantly and wrongly dismissed by the Howard government’s Attorney-General.

What this bill does not provide is the extended terms of reference that the Cole inquiry needs in order to get to the bottom of the wheat for weapons scandal and to report on the much broader issues of the government’s culpability in this shameful episode. The Howard government has deliberately designed the terms of reference for the inquiry to preclude it from making findings in regard to the government’s behaviour—clearly one of the key areas of interest and clearly one of the areas upon which a royal commission finding would be required. This is a government political strategy to protect itself from any assessment of its incompetence or culpability in these most serious matters.

The wheat for weapons affair is the largest corruption scandal in the Commonwealth’s history. Australia’s monopoly wheat exporter has systematically rorted the oil for food program to provide nearly $300 million of kickbacks to Saddam Hussein. The $300 million that went to the Saddam Hussein government should have gone to buying food, medicine and humanitarian supplies for the Iraqi people. The Howard government was well aware that the Saddam government was rorting the program in cooperation with its suppliers, and it used that fact to support its case for war against Iraq. The fact that an Australian company was the biggest single rorter of the scheme shames this country, immeasurably damages our reputation as a trading nation and undermines our legitimacy in Iraq.

We saw the perverse situation where Australian troops were deployed to fight in Iraq against an enemy funded in part with money rorted by Australia’s monopoly wheat exporter. We had the situation where Australian troops were at risk of death and injury from weapons funded by the rorting of wheat sales to Iraq. That is an incredible position, one that I think shocked the nation and one that deserves the fullest of examinations by the royal commission. While the Australian government has denied all responsibility for ensuring that Australian companies complied with the obligations of the oil for food program, that clearly is not good enough. It flies in the face of the specific regulations stating that Australian companies can export to Iraq only under an export permit issued by the Minister for Foreign Affairs where ‘the minister is satisfied that permitting the exportation will not infringe the international obligations of Australia’.

As we know, the Howard government has had 29 separate warnings over many years in regard to AWB’s engagement with Saddam Hussein’s regime. It beggars belief that none of those warnings set off an alarm bell at senior levels of government. I do not know whether it was the cosy nature of the National Party wheat club, where the pressure to ensure that nothing interfered with wheat sales to Iraq was insurmountable, but clearly the government was engaged at a very senior level with the players in these matters. Clearly it was warned by people of very senior rank about all of these matters.

Of course, we know that, in the lead-up to the Iraq invasion, we spent a great deal of effort monitoring the intelligence issues surrounding Iraq at the time. While we clearly got a lot of the intelligence wrong or misread the intelligence, I do not for one minute believe that our intelligence did not show up the involvement of AWB in the kickback scheme that was funding Saddam Hussein’s regime. Despite all of these warnings, the government says it knew nothing.

The Cole commission report will hopefully add to our knowledge of all these matters, as have the hearings. But the key problem for us is that the extent of the government’s involvement and its culpability will not be tested because of the government’s refusal to widen its terms of reference. All of this is on the public record and I do not pretend that I add anything to it—although, as I say, I think it is probably worth repeating in one sense because of the enormity of what has occurred here. I think there should be continuing outrage amongst Australians about what has occurred. But I know that the news cycle moves on and the government is relying on that in terms of its defence in these matters.

What I wanted to comment on today—and I think Senator Allison touched on it—is the government’s unprecedented step of directing officials at Senate estimates hearings not to answer questions on any matter that may be considered before the Cole inquiry. They gave a very broad direction to officers not to answer questions on any matters pertaining to issues that may come before the royal commission. It is completely opposite to the approach they took to the terms of reference of the Cole inquiry. The Cole inquiry’s terms of reference are limited and they prevent the inquiry from going beyond set boundaries. But their interpretation of what officials of departments could answer at estimates was very broad indeed. Anything that mentioned wheat, Iraq, government departments, ministerial roles et cetera was immediately ruled out of order as being potentially a matter that could arise before the Cole royal commission. In other words, the defence against the Senate estimates inquiry into the matters was as broad as it possibly could be.

We know that there is no precedent for this. There is no support by past practice for the government’s position. In fact, the Clerk of the Senate pointed out in his advice that there is no precedent for the position that the government has taken. It has taken its position in relation to preventing Senate inquiry into its behaviour out of pure self-interest. It has taken it to protect itself. Commissioner Cole has indicated that he is more than capable of conducting his inquiry and coming to his findings, despite what goes on outside of his hearing rooms. He is unperturbed by any other inquiry into or investigation of these matters.

We saw last month the government again refusing at the second round of estimates to allow any questioning of officials about their capacity in this regard. What little questioning we did get to do on matters tangentially related to these matters revealed that the government’s responses to the Cole commission’s requests for information were less than comprehensive. Commissioner Cole had to persist in his efforts. A lot of information initially requested was not provided and was only provided after further requests by Commissioner Cole.

My main point is that the Senate has been denied its ability to hold the government to account. The areas that the Cole commission is not covering will remain untouched at this stage. Investigations by the Senate into the actions of the government have been prevented. So you have the Cole commission prevented from looking at the government’s behaviour and you have the key parliamentary accountability mechanism—the Senate inquiry and estimates systems—prevented from looking at these matters.

The government even prevents the Senate from looking at those matters that stand outside Commissioner Cole’s terms of reference. The senators would have been sensitive to the issues before the Cole commission. They would have been sensitive to the issues of the rights of individual witnesses et cetera. But there are a whole range of matters which have not been properly considered or investigated that could have been investigated properly by the questioning of officials in Senate estimates. But, because of the government’s direction, that scrutiny was not able to take place. As a result, a whole lot of issues remain to be investigated. The gaps that existed in the terms of reference of the Cole commission have been left unfilled. The gaps in the areas of investigation have not been able to be pursued by senators because of the government’s blanket ban on questions before Senate estimates. Of course, we all know that any attempt to get a wider inquiry beyond the Senate estimates process will be prevented by the government’s use of its majority in the Senate.

I can only assume that the government think that, by delaying any Senate estimates scrutiny of these matters, they gain time, public interest will wane in the meantime and, in a sense, the trail will go cold. They hope that, by allowing the effluxion of time, our capacity to hold people to account will diminish. I think they are right that the passage of time will make it harder for the Senate estimates committees to do their job, because the fact that information revealed will be revealed so late in the piece will make it less politically potent for the government. So, as I said, I think their political strategy is likely to be successful. Of course, it reflects the arrogance that the government have developed in their use of their Senate majority. It reflects the arrogance that has come about over 10 years of government. I think it is of concern to all Australians that such actions have been perpetrated by the government.

In terms of the debate about whether or not Senate estimates committees should have been allowed to investigate these matters, I will just put on the record that, despite the government spending millions of taxpayers’ dollars on two unsuccessful inquiries into the Centenary House matter—inquiries which came to nothing—it did not prevent them from talking about those matters, making comment on those matters, and raising those issues in estimates hearings and in parliament during the whole period of those inquiries. So it is one rule for them and one rule for the rest, and, when they think they are under any political threat, the rules are different.

Of course, that was also true during the inquiry that Commissioner Cole ran into the building industry. There was no shortage of dorothy dixers in the parliament and no shortage of commentary by government ministers and backbenchers as they aired their views on those matters, because they thought the target was trade unions. They thought the target in the Centenary House inquiry was the Labor Party, so a different set of rules applied. There was no attempt to bar questioning, public debate or public inquiry on those occasions. However, when their political life is at risk, when there is a threat to them or their culpability is to be examined, then a whole new set of rules applies because they have to protect their own self-interest. There is nothing about principle or proper process in that; it is all about the protection of base political self-interest. Senate processes have been abused in order to pursue those objectives.

As I know all too well, our capacity to deal with the government’s power in this regard is limited. There is no question that the government’s approach to this is based on the fact that they do because they can. They have the numbers. The change in the balance of power in the Senate has allowed the government to take those actions. No-one should be surprised and no-one should misunderstand the basis of that: it is because the government can. They have the power and they will use it; they have the power and they have used it. What we have seen again in this matter is their capacity to limit the scrutiny of their actions. They did it in two ways on this occasion: one was by limiting the terms of reference. The executive draws up the terms of reference. The government drew up the terms of reference for the Cole commission that prevented any inquiry into their culpability and their actions. They had the power to do that and they exercised it. In having an investigation into AWB’s rorting of the oil for food scandal, their defence was that they had a Cole royal commission, but they ensured that their role in it could not be properly examined.

So what was left for Australians in hoping that proper accountability of government could occur? There was the traditional mechanism of the Senate and its estimates committee process, the Senate and its references committee process—the sort of function that we played in the ‘children overboard’ matter; the function that we have traditionally played in holding governments to account for actions taken, by inquiring into, investigating and ensuring that officials and ministers answered for their actions. As a result of the government’s order to its officials, the Senate was not able to play that role. The reason the government could do that is that they knew they could get away with it, and they got away with it because they knew the Senate had no capacity to overturn that direction. There was no capacity to have an inquiry that the government did not approve of and no capacity to direct officials to answer questions directed at them at estimates hearings. They have the numbers, they have the power and they will abuse it. This is just another example of the government’s capacity and willingness to abuse their Senate majority.

I know this does not interest a lot of people and I know it is a difficult argument, but people do need to understand that the government’s ability to protect themselves from proper investigation of their actions in this matter is a direct result of their Senate majority. They did not need any parliamentary input into the terms of reference for the Cole inquiry, but they did need to have the power in the Senate to prevent proper examination of their behaviour, their actions and their culpability in relation to the oil for food program. The fact that they have been able to abuse their Senate power to prevent Senate estimates committees from getting to the bottom of what really occurred is testament to their ability to exercise that power and prevent the Senate from performing its traditional functions.

A very important secondary point in this debate is that not only are we not able to ensure that there are full terms of reference for any royal commission called by government but also, with the loss of the balance of power in the Senate, with the government majority in the Senate, the main accountability mechanism that the parliament has to hold a government to account—to hold a government’s actions up to the light and to see whether or not they have been proper, moral and in accordance with the law—is denied us. I think that is a very serious state of affairs.

Labor will persist; the story will come out. That is the one thing you know about all of these things: eventually the story will come out. The truth of these matters will out. But the government’s hope is that, by delaying and by trying to allow the trail to go cold, they will defend themselves in the short term. When the truth does out, of course the ministers responsible will have retired and been promoted overseas to ambassadorial posts, and the personal accountability that is called for in these matters will not be there. That is the government’s plan; that is their political tactic—but it is based on pure political self-interest. There is no basis in principle, there is no basis in procedure, there is no basis in precedent.

While we support this bill, I urge senators and others in the Australian community to take very seriously what this government has done in undermining the Senate’s capacity to hold government to account. This is a classic case where the government majority prevents us, the other senators and the Senate from holding the government to account and properly examining its culpability in probably the most amazing Commonwealth scandal that I have ever seen. It is important that the government is held to account. It will not be held to account currently, but Labor will do all in its power to pursue that accountability. As I say, our efforts will be seriously undermined by the government’s use of its majority in this place.