Wednesday, 13 May 2009
Order of Continuing Effect
I am sincerely shocked at how quickly this government have turned into a secretive government. I am shocked at the long and detailed presentation we have just had from the government, which essentially sums up one thing: they are running scared from openness, transparency and public accountability. This runs counter to everything they have said not only before the last election but also since. I will quote to Senator Ludwig a statement made by Senator John Faulkner at a recent conference. The speech, entitled ‘Open and transparent government—the way forward’, was made at Australia’s Right to Know, Freedom of Speech Conference. He said:
… the best safeguard against ill-informed public judgement is not concealment but information. As Abraham Lincoln said: ‘Let the people know the facts, and the country will be safe.’
We happen to be the opposition in this place and we happen to have the job of holding the government to account and scrutinising the activities of government. There is a very important process to help us to do that, which is the Senate committee process, whether it is through Senate estimates or whether it is through specific inquiries. We ask questions because we want information—and, yes, there are going to be circumstances when, quite properly, government can claim recognised grounds as to why it would not be in the public interest to release a particular piece of information or document. Of course we recognise that. But I have become increasingly frustrated, over a series of four Senate estimates periods—and I have consulted with colleagues who have also become increasingly frustrated—because I have faced a barrage of obfuscation, of refusals to answer legitimate questions and of refusals to provide documents that were quite properly requested without ministers and officers of the government complying with what is well-established Senate practice and procedure.
I am a reasonably new senator in this place and I recognise that I am not as experienced as people who have served for longer periods. So, after my first Senate estimates, I went to seek advice from the Clerk. I said, ‘I asked a question and they just said, “This is advice to government, so we are not going to tell you anything else,”’ as if it were a blanket reason to refuse to answer a question.’ On that particular occasion, if my memory serves me correctly, the question was, ‘Have you provided advice to government about changes to the private health insurance rebate, to Lifetime Health Cover and to the Medicare levy surcharge threshold?’ It was in February 2008. The answer was essentially, ‘We can’t tell you that; it’s advice to government.’
When I asked about this, the Clerk of the Senate pointed me to a piece of advice, and I was very appreciative of it. The date of the advice was 19 May 2005. Chances are that this was prepared by the Clerk of the Senate for the benefit of the then opposition. It talks about what are and what are not reasonable grounds for public interest immunity claims. Reasonable grounds—and there are qualifiers to them—can be:
… prejudice to legal proceedings, prejudice to law enforcement investigations, damage to commercial interests, unreasonable invasion of privacy, disclosure of Executive Council or cabinet deliberations—
and that is often abused by government because it refers to deliberations, not just to any document that may come before cabinet—
prejudice to national security or defence, prejudice to Australia’s international relations, prejudice to relations between the Commonwealth and the states
These are recognised public interest grounds as long as they are properly justified either by officials or, as is required, by a responsible minister. I thought, ‘This is pretty good.’
In May 2008 we had the Rudd government’s first budget and, sure enough, it included an increase in the Medicare levy surcharge threshold and a whole series of other nasty things about which we quite legitimately asked a whole series of questions. The department said: ‘No, we can’t answer that; it’s advice to government. We can’t do this, that or whatever.’ I thought: ‘But I have the advice that the Clerk of the Senate provided to the then opposition; surely if it was good for them it must be good for us.’ It lists unacceptable grounds for public interest immunity, one of which is advice to government. I quote:
…the mere fact that information consists of advice to government is not a ground for refusing to disclose it. Again, some harm to the public interest must be established, such as prejudice to legal proceedings, disclosure of cabinet deliberations or prejudice to the Commonwealth's position in negotiations. Any general claim that advice should not be disclosed is defeated by the frequency with which governments disclose advice when they choose to do so.
I thought, ‘I am pretty new but I have something here that I can use to hold the government to account and get information that, as a senator and a committee member, I think the people of Australia are entitled to.’ But, no, the chair refused to assist me in getting the officer to properly respond. The government’s own guidelines, put in place in 1989, require that claims of public interest immunity can only be made by ministers. I raised this. I said, ‘Only a minister can make this claim of public interest, in accordance with the government’s official guidelines for witnesses before parliamentary committees.’ The secretary of the department at the table said, ‘No, this is not a matter for the minister. We are just not going to answer it; it is advice to government.’
I have example after example. I could tell you about the experience I have had with the Senate Select Committee on Fuel and Energy. We requested information from the Treasurer about the modelling for the Carbon Pollution Reduction Scheme. The request has been going backwards and forwards since December 2008 and there have been two orders of the Senate, but the government, to this day, have not provided a proper explanation as to why it is not in the public interest for a whole range of information to be provided. They claimed commercial interest in relation to a very small proportion of the information requested and then made the blanket statement: ‘Sorry; we can’t provide you any of it because of commercial interests’—without actually justifying where the commercial harm would be. We on this side of the chamber do not think it is in the public interest for the Senate to allow that secretive trend in this government to continue. We think that this government should embrace the openness, transparency and public accountability that they profess in their public statements, and this motion provides the process to do so.
After three or four further Senate estimates and some further inquiries—and a lot of the players in those inquiries are actually in this chamber right now—a chair of a committee actually made a ruling on me to say that I was not allowed to ask for a particular issue to be referred to a minister and that I was not allowed to insist on a statement as to why it was not in the public interest for a particular piece of information to be provided to the committee. I am actually not being critical of the chair, because it is currently the situation that we have pieces of advice and past resolutions everywhere. We have a very disparate range of piecemeal documents and I suspect that people are getting a little confused as to what the proper process and procedures are. What is the established Senate practice and procedure? There will always be times when new people come in to the Senate. They are going to face all these problems of trying to find out how to get the information and documentation out of the government that they need in order to properly scrutinise its activities. And rather than have this piecemeal series of resolutions all over the place, Senator Ludwig is quite right: this particular resolution seeks to both reaffirm and consolidate those past resolutions into one easy location so that there is a very easy reference available. When we are next at a Senate estimates committee and an officer of a department or a minister inappropriately refuses to explain why we are not entitled to a particular piece of information or why it is not in the public interest to provide a particular piece of information, then we can point to a continuing order of the Senate and it will be there—there will be a process which will very clearly outline how the officer or the minister has to deal with it.
We are not prejudging the merits of a particular claim. We recognise that there will be occasions when we might want access to more information than would be appropriate, and all the government has to do is to explain why, in the government’s judgment, it is not in the public interest to provide that particular piece of information. When I say ‘public interest’ I am not talking about the political interests of the government. If I can go back to my example earlier, why was it not in the public interest for the government to reveal information about discussions they had in government about changes to the private health insurance rebate? Clearly it was not in the political interests of the government but I think there is a serious question mark as to whether there was a proper and legitimate public interest ground. In any event, after we were continuing to bang our heads against the wall and many of my colleagues were facing similar problems, we decided there was a very clear case to consolidate and reaffirm all of these past Senate procedures and practices into one single resolution. For the benefit of all senators, I sought advice from the Clerk on essentially summarising the effect of my motion, because I think that the minister’s statements in relation to my motion are somewhat misleading and I do not think they should stand as a record in their own right. So I seek leave to table the advice that was provided to me by the Clerk of the Senate which very clearly, in four or five pages, articulates the effect of my motion.
To summarise the principles of this motion, if officers consider that there are public interest grounds for not providing information, they should state those grounds. It is very simple: they should state those grounds. If they cannot do so or if they feel uncomfortable in doing so, they should refer the matter to a responsible minister if they are requested to do so. At the end of the day, the final decision on whether to claim a public interest ground for not disclosing information should be made by a minister, with a statement of the ground, and ultimately only the Senate itself can determine whether the claim is accepted. As I have said before, these principles are actually also contained in the government’s own guidelines for Public Service witnesses before parliamentary committees, which have been in force since 1989. But secretaries of departments—Commonwealth officials—conveniently forget. Government senators chairing estimates committees are not all that enthusiastic about enforcing the rights of individual senators in those committees. They are always on the lookout for how they can protect the best interests of their government. So having this in one single motion as a continuing order of the Senate will provide some clear guidance to all people involved in the various aspects of the Senate committee process as to how any claim that public interest would prevent the release of a particular piece of information should be dealt with.
Importantly, the proposed order would not affect the existing rights of Public Service witnesses to take questions on notice and to refer questions to senior officers or ministers. Essentially, the purpose of this motion is to provide everyone with a clear process for raising and dealing with public interest immunity claims and to avoid the sometimes confused discussion that diverts committee hearings when officers and committees are not sure what to do about an apparent refusal to answer a question. At the most recent Senate estimates committee inquiry, I asked a particular question and the Commonwealth officer said, ‘Well, it is advice to government. I am not going to answer it.’ I said, ‘If you’re not going to answer it, you have to give me a proper explanation.’ The officer said, ‘My answer is that I am not going to answer it.’ So you end up in this circular argument. The bottom line is this: this government have an opportunity to actually demonstrate that it is not just rhetoric when they talk about open, accountable and transparent government. They have an opportunity to embrace this motion and if they do so, then, with our support, they will be a better government for it.
Question agreed to.