Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Hansard source

As gracious as always, Senator Bernardi.

Leave granted.

The Senate also sought the legal advice from the Department of Foreign Affairs and Trade to the Minister for Foreign Affairs regarding how the Australia Network contract should be awarded.

The government considers that it is not in the public interest to publish these documents. Disclosing the deliberations and recommendations of the assessment panel would disclose a significant amount of commercially sensitive material that was provided in confidence by the tenderers. It is contrary to accepted Commonwealth practice to disclose the information in tenders submitted by unsuccessful tenderers. The publication of the Department of Finance and Deregulation Guidance on Confidentiality in Procurement dated July 2007, available on the department of finance website, states as follows:

For probity, agencies must ensure all submissions are treated as confidential for the duration of the procurement process. Similarly, all unsuccessful submissions should be kept confidential after the award of the contract.

Public disclosure of commercially sensitive information of unsuccessful tenderers would be a major departure from longstanding Commonwealth procurement process. It would undermine the confidence that potential participants in future procurement processes may have in the security of their commercial information. Furthermore, any future tender for services related to the Australia Network would run a very significant risk of being comprised because potential tenderers whose commercially sensitive proposals had been made public would be subject to an unfair advantage.

In taking the decision to terminate the tender process, the government took into account advice provided by the Australian Government Solicitor. I have referred to that advice to confirm that the government took appropriate advice and to assist in explaining the government's reasons for taking this decision. It is the practice both of this government and former governments not to release the Commonwealth's confidential legal advice in response to orders for the production of documents, and it would not be in the public interest to do so here. In relation to the advice provided to the Minister for Foreign Affairs, I am advised that it contains commercially sensitive material and forms the basis for deliberations in cabinet. For these reasons, the government considers it would be contrary to the public interest to release those documents.

I would just add one further piece of information. I have consulted my records and, in relation to a question from Senator Sinodinos, I also consulted the Cabinet Secretary, Mr Dreyfus. As to the timing, I will shortly confirm when the advice was received.