Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Hansard source

The provision that both Senator Abetz and I have described as the catch-all can only catch all matters relating to, in the case of the bill, the previous two provisions and, in the case of my amendment, the previous four provisions. The real test of how broadly the inquiry can range is how broad those first governing provisions, if I can put it that way, which establish parameters for the inquiry are. Matters which arise out of or are incidental to those matters are then available, one might say, through the catch-all provision. If we are debating this as a piece of legislation, the matters that are incidental and which can be referred to arise from those specifics contained in the terms of reference. That is the nature of the debate we are having. I have not heard the minister say that all of the matters contained in the four provisions in the amendment are specifically covered in the terms of reference. What I have heard the minister say is that if Mr Callinan thinks he needs broader terms of reference he will ask the minister for them. To that proposition, I say: if the parliament cannot be sure that all of these matters are currently covered in the provisions in the bill, then it would be good public policy for the parliament to require that these matters be inquired into without having regard to whether it would necessarily extend the term of the inquiry, increase the cost to the public or increase the process of the parliament to deal with it.

The other aspect which the minister has not responded to is the question of whether the terms in the bill as they stand guarantee that the inquiry, as determined by the commission signed off by the minister, will even be as broad as the government’s bill, let alone the amendment as contained in sheet 5388. That is within the discretion of the minister. It may be that there are some arcane reasons why these things are normally couched in this way. I suppose it is not surprising that the minister is trying to ignore the fact that the Cole inquiry into the ‘wheat for weapons’ scandal was couched in such a way. The public commentary makes it absolutely and abundantly clear in the public’s mind that the role of the government in the scandal was not able to be properly investigated. The range of questions which could be asked of government witnesses was constrained by the commissioner by reference to the terms of reference. In other words, those intervening parties who sought to question ministers were told that the questions they were seeking to raise did not arise from the terms of reference and so their questioning was constrained. That is something we do not want to see with this. We know that there was an exchange of correspondence between the Australian Racing Board and the then relevant minister, Mr Truss, in 2004 and 2005, which I have referred to earlier, about specific protocols and with specific reference to the potential for the introduction of equine influenza. We know that there were circumstances where the effectiveness of protocols was questioned by industry in relation to the potential for the introduction of the disease, which is now having a very significant effect on horse industries in Australia.

If we are to leave this in the hands of the minister, especially in relation to the discretions that might arise if there is a deficiency, it will be inefficient and inadequate and will necessitate delay. If there is a deficiency in the words the government proposes, for example, the matter will need to come back to the parliament. We seek to make that unnecessary. To suggest that, somehow, we could talk about every possibility and put them in a terms of reference—of course, one can make that claim about any form of drafting that you attempt to draft exhaustively, but, on the other hand, you can attempt to draft away perceived issues so that they are not issues in the sense that the terms of reference will clearly allow those issues to be canvassed in the inquiry. The opposition have sought to introduce specific provisions with specific reasons behind them, which I have outlined, and to make sure that those matters are canvassed. We have not been given the absolute unquestionable assurance that these matters will be pursued, and that is why we are pursuing them with this amendment.

Question put:

That the amendment (Senator O’Brien’s) be agreed to.

I move opposition amendment (2) on sheet 5388:

(2)    Schedule 1, item 5, page 4 (line 16), at the end of section 66AY, add:

        (5)    The Commissioner’s report must be laid before each House of the Parliament within 5 sitting days of that House after the report is received by the Minister.

        (6)    If a House does not meet within 5 days after the report is received by the Minister, the report must be made available to the Presiding Officer of that House for distribution to the members of that House within 5 days after the report is received by the Minister.

I note that our amendment is similar but not identical to Australian Greens amendment (1) on sheet 5392. I think that we are both on the same page in terms of intent but that we have perhaps slightly different drafting instructions or drafting sources—I am not sure which. I think it is fair to say that what we are about is ensuring that the commissioner’s report is made public. The concern which exists is that there ought be a complete public understanding of the causes or cause of the outbreak and spread of the equine influenza disease in the horse population and that if there are public moneys to be spent on that then the parliament ought to be fully advised as to the findings. The way that the commissioner would write any such report would be, I think, with regard to the terms of reference. I am not certain one can feel that somehow the commissioner would be constrained in responding to the terms of reference because of fears of publication.

This is an examination of, essentially, the implementation of public policy and the adequacy of public policy in the form of our quarantine policies as they relate to the importation of horses. This is not akin to the inquiry that the government has referred to—the inquiry into human practices in the building industry. That, I suggest, was to do with the lawful or unlawful behaviour of individuals in relation to an industry and the practices that existed within it. This is an inquiry into the matters of public policy that determined the protocols that apply to the importation of horses, the practices and procedures that were put in place, the observance or nonobservance of those practices and the performance of ministers, departmental officers, managers and contractors in relation to their obligations to ensure that we did all that we could to keep disease from the Australian horse population—quite a different circumstance.

We were told that the evidence taken in these inquiries could not be used against an individual in relation to any prosecution or civil case. I think the provision referred to for that protection was section 6DD of the Royal Commissions Act. So I am struggling to understand the caveat that the government seeks to place upon the issue of the publication of these reports. If the report is tabled in the parliament but the evidence cannot be used, I struggle to see how the findings of the commissioner based on that evidence could be intruded into any such proceedings.

One would have thought that if these are prosecutions under the Quarantine Act then they are not matters which will go to a jury. So I really do not understand the caveat that is sought to be placed on the publication of the findings. Were there to be a finding that individual A or B completely ignored their responsibilities in relation to a provision of the legislation, one would expect that those proceedings being subsequently considered would be considered on evidence other than evidence before the commission and certainly not on the findings of the commission. Without the presence of a jury trial, a trial in the public arena would, I suggest, perhaps not be the issue that the government has suggested it would be. So we cannot see the problem with publication. We think it is desirable that the information be available to the public. We are certain that the industry would desire the information to be published. We are certain that the public would like to see the result of this inquiry—after all, they are going to pay for it—and we cannot understand why the government would not agree to provisions which would require the reports to be laid on the table in parliament and the outcome of this inquiry to be made public. The minister has said that it is his wish that this matter be made public but that he would leave that in the hands of the commissioner. We think it would be more appropriate for the parliament to determine the outcome at this stage and for the inquiry to commence on the understanding that, at the end of the day, in the mind of the commissioner, the parliament and the public, the report would be made public.