Wednesday, 13 May 2009
Order of Continuing Effect
The government does have concerns about this motion. It is one of those balances that we make when we look at the notice that is being proposed and come to the conclusion that we do not support it. Senator Cormann presents this motion to the Senate as what appears to be, and I think the motion expresses that, a consolidation of what I might call more broadly past Senate practice and procedure. Perhaps I could also include guidelines or other determinations or other rulings of the Senate.
The difficulty with that process is that it may not be the case that it is clearly a consolidation only. Instead, the motion could seek to entrench an interpretation of past Senate practice and procedure, and the interpretation that is now being placed upon it is either Senator Cormann’s or some other interpretation, at least to the extent that it is a singular view, not what may be called a debate about past Senate practice or procedure. It is a limited interpretation and it could limit the operation of the way in which these matters are raised in the present circumstance. In other words, it could create confusion not clarity. That is one of the concerns that the government has with a motion such as this, especially when you seek to provide a consolidation of past guidelines, practices, precedents and rulings of the Senate. At some point you have to determine what that past precedent, ruling, practice or guideline is and then apply that view to the order, turn it into words and produce the order as described.
What that means, effectively, is that you have prescribed a meaning to a ruling, procedure or practice that existed at the time of a particular circumstance. The concern I have with that is that it then becomes your reflection, or others’ reflection, of what that past practice is. It does not allow the opportunity for a debate to occur in a current circumstance, which you can then reason or argue by analogy is similar to a past precedent or practice. In fact it may not be, in which case you have consolidated into a list a process that may not accurately reflect the past precedent. That is not to say that it was not taken in good faith that you were endeavouring to reflect the past precedent, practice or guideline—that is not what I am suggesting. It is a case where you are stopped from arguing by analogy what the previous practice was, how it applied to a particular factual matrix and how it would, by analogy, apply to the current circumstance, because that is now lost. You would then be applying the order written in words that are currently expressed as to what those past practices and precedents mean.
That is, quite frankly, a worrying position. Passage of the motion will mean that the Senate is, I think, denying itself the chance to take a wider view of past precedent and practice, which is what they need in cases where public interest immunity is claimed. In truth, the Senate will have decided to shut the debate on public interest immunity. New cases will be judged not on past practice or precedent but on the words that are currently subscribed within the order itself. That is a concern that should not go without some noting. The other broad frame within which you should examine this motion is: is it a significant improvement on the current practices of the Senate? I do not think so. I think it could be regarded as a diminution of the role of the Senate and the way in which the Senate determines itself, because the Senate usually does not provide itself with fetters or processes of this nature which circumscribe the processes it may take in pursuing public interest immunity.
What we have in Senator Cormann’s motion is an attempt to compensate for, if I can say it politely, a view that Senator Cormann may have arrived at in relation to the behaviour of witnesses—and/or some senators or ministers, for that matter. This is not the appropriate mechanism to use to change people’s behaviours, demeanour or manner in which they approach the Senate. Rather than seeking to ensure that the witness reads Senator Cormann’s mind in relation to the way these things go, the means of pursuing these matters is usually in questioning the way you might go about questioning—and of course if a senator were unhappy with particular questioning then they could always bring it to the chamber.
At least, in this instance, what I think Senator Cormann is trying to do is to improve the compliance and attitude of witnesses. If that is the case, this is not the process, I respectfully submit. The process should be to improve the guidelines, to improve the way the rules operate within the estimates process and the committee process. This ultimately becomes a blunt instrument which is unlikely to achieve the purpose that Senator Cormann hopes it may achieve—changing the attitudes of witnesses, senators or ministers.
The motion begins by making the outrageous claim that ministers and officers are refusing to provide information to the Senate, yet at no stage has Senator Cormann demonstrated that the minister or officials have acted in this way. I do take it that there are likely to be circumstances where ministers or witnesses do not provide an answer and may not provide a reason for it. However, in many instances, if questioning were to continue it may reveal a particular reason for the refusal at first instance—but that rests in a committee, not in trying to manufacture an audit to deal with a witness who may, might I say, sometimes be more difficult than others. The motion does not outline a coherent process for witnesses who claim public interest immunity. Instead, what we have is a partial description of a process, with no time frames and no key outline of actions that would follow. It also confuses, in part, the process with the outcome that is being sought. The concern that the government has is that it will only entrench confusion about the definition of public interest immunity and will not bring clarity. The motion brings further confusion with its option for in camera evidence in committee hearings and estimate hearings. Clearly, estimates hearings have no provision for in camera evidence and would be unworkable with in camera evidence provisions. They are estimates hearings, which, by their very nature, are held in public.
Where there is a desire by both parties to have the information provided, the guidelines allow the committee and the minister at the table to arrive at sensible arrangements to deal with questions that may have public interest immunity attached, or be claimed to have public interest immunity and would otherwise be able to have public interest immunity invoked. For example, in estimates hearings I have suggested we might deal with it by way of another hearing, or a hearing outside estimates, or a reference or other process which allows the committee to go in camera or perhaps undertake some more formal examination of a particular point. This motion leaves out that ability and entrenches a very narrow process where you provide only this path, quickly funnelling people to use only this process to achieve these types of claims. In fact, you narrow the case for actually throwing light into dark corners, rather than trying to persuade people’s attitudes or beliefs to provide an answer.
The motion allows for almost unlimited opportunities for individual senators to use public interest immunity as a reason to disrupt the proceedings of a committee. I do not suggest that senators would do that, but they could have a mind to point to a sessional order and say, ‘This is a right. I am going to use this order and I will use it to deal with a particular circumstance that has arisen’—perhaps a nonresponse by a witness. These could be witnesses not only in estimates but also who are not public servants. They could be from a whole range of circumstances. It is not confined only to bureaucrats who may not want to answer your question; it applies to witnesses at large. You are putting a different slant on it, and I do not think it takes into account the different circumstances that may apply in respect of, for instance, a nonresponse from a private witness or from a witness from another association. Unfortunately, you lump them into one basket to the detriment of the process that generally takes place in the Senate and to the detriment of the courtesies that are extended by senators, ministers and committees more broadly. It is a concern that senators might take advantage of that provision to badger a witness who is not a public servant and who is not at estimates but is in a committee process.