Senate debates

Thursday, 6 March 2014


Legal and Constitutional Affairs References Committee; Report

4:02 pm

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party) Share this | Hansard source

I rise to take note of the report of the inquiry by the Legal and Constitutional Affairs References Committee into the claims of public interest immunity made by Ministers Morrison and Cash. Not since the Iraq oil-for-food program inquiry have I been involved in such an extraordinary inquiry where there is nothing but pure front from this government. What a pitiful defence has just been offered. It rests on two parts, the first of which is: 'Have a confidential briefing.' Well, it is the Senate that you are in, and we want the information—it can always be provided in camera if you want the Senate to have it in a confidential way. The second defence is even worse: 'They did it too.' Well, push me! Go on, really! Those are your best two limbs of defence? These claims were made in response to the legitimate orders from this place to produce documents relating to Immigration and Border Protection activities—documents that the government has kept secret, documents that the government has refused to provide, even on a confidential basis, as provided for in our rules and procedures. These are documents which, it was revealed in the inquiry, neither minister had actually read prior to making their claims. That is outrageous in the extreme.

This report is an indictment of those ministers and this government. The fact that we even had to have this inquiry in the first place is a measure of the absolute contempt in which they hold this parliament. It is completely unacceptable for the government to behave in this way. This is backed up by the committee's report. The government's claim of public interest immunity has not been substantiated. There is no evidence on the record that the claim of public interest immunity would succeed. In fact, the report is scathing of the behaviour of the government and Ministers Morrison and Cash. Let me quote directly from the report:

The government's unwillingness to engage in a meaningful way with this inquiry only serves to heighten the committee's suspicion and concerns about the information sought.

And what else does this inquiry find? It finds that the government's secrecy, its lack of transparency and accountability, is so extreme as to require a change in the very procedures of the Senate. That is what the committee concluded—that, when you look at the conduct of these two ministers, you are left in no doubt that we require a change in the way we address this circumstance.

The government has openly flouted the Senate rules and the committee's rightful and legitimate request for information. It denied explicit requests for relevant documents—or even a schedule of those documents—which undermines and frustrates the ability of the committee to examine the merits of the government's claim. Even if you did not want to produce the documents themselves, then you should have produced a schedule of the documents so, at least, the committee could have come to the conclusive view that a proper process was entertained. No such schedule was provided. The only conclusion you can come to is that the government did not go through a proper process. It took the extraordinary step of making a blanket claim and then tried to cover up the fact that that is what it did.

It treated the powers of the Senate, powers bestowed by the Constitution, with shocking disregard. The Minister for Immigration and Border Protection had the gall to tell the committee that he would decide the questions that they considered relevant. The minister deciding relevance, instead of the committee—that is completely absurd. You could only describe it as either ignorance or arrogance. I will leave it for those who read the report to come to the conclusion as to whether it is sheer arrogance or ignorance, the assertion was so stunning.

The advice from the Clerk on this matter could not be clearer, saying it was a notion which they should be disabused of as soon as possible. Stonewalling, misleading, evading, obstructing: that is the only behaviour this government has shown itself capable of and, quite frankly, it is not good enough. The Senate should respond to this circumstance.

The report makes a number of key recommendations that Labor supports. It recommends that the Senate:

… insist that the Minister representing the Minister for Immigration and Border Protection (Senator Cash) be required to explain the process by which—


… considered the documents and reached a decision to claim public interest immunity over them.

Let me dwell on that point, because those opposite should not miss the import of it. The sheer absurdity of this situation for them seems incapable of being grasped. How a minister can claim public interest immunity over a document that they have not actually read is mind-boggling. This is a serious matter, beyond just the matter of the documents in this particular case. At its very heart, at its very core, is this government's culture of secrecy, its lack of accountability, its contempt for this parliament and all that it represents. That is why this committee report also recommends a reform option for the Senate. We asked the Procedure Committee to look at this report and its contents very carefully. And I have full confidence in that committee coming to the same conclusive view that the committee came to, that a change is required here. The blatant attempt not to produce documents needs to be addressed. The sheer hypocrisy of this government in hiding and continuing to display secrecy is shocking. The status quo will not do, not when it comes to this government, which has adopted dissembling as the default policy position.

The report should remain and continue to be a stark reminder to this government that it is not above what the Senate can ask it to do. It is not above the ability of parliamentarians in this place to require the production of documents. But, more than that, if you want to claim public interest immunity on those documents, then demonstrate that you have undertaken a proper process in coming to that conclusive view. Public interest immunity can be claimed, but what this inquiry shows is that this government ignored all the rules. It was flagrant in its breach of them.

As the committee has noted, it is not the place of ministers to determine matters of public interest immunity; it is a matter for the parliament. I quote:

… the committee reiterates in the strongest terms the Senate's right to information and emphasises that a claim of public interest immunity made by a minister remains just that: merely a claim. It is for the Senate to consider and accept or reject each claim having regard to the basis upon which it is made.

It is time that the ministers in this government undertook proper processes. If they are going to claim public interest immunity, then they should do it according to the rules and demonstrate how they are going to undertake that process, not simply make a blanket claim for public interest immunity.

Senator Seselja interjecting—

Those opposite continue to interject. I listened to you in silence.


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