Monday, 17 September 2018
Future Submarine Project; Order for the Production of Documents
This matter of this particular OPD is of particular significance. I think that the government's right to claim executive privilege or public interest immunity in respect of parliamentary proceedings has a long history. It has to be acknowledged that, as a former minister, I don't believe I've ever had to claim it. Going from memory, I don't personally recall doing so. But I do want to state that the principle is one that I think we do have to consider very, very carefully. I do acknowledge that there are circumstances where any government will claim executive privilege and will claim the right to withhold documents for very sound reasons. I think it's been demonstrated that no government can operate without a degree of secrecy. There are negotiations and there are matters in which public servants have to provide advice to government, and they have to be confident that the advice will be frank and fearless. There are occasions when there are genuine commercial matters that need to be considered. As a former minister who had a bit of responsibility for commercial secrets, I acknowledge that things do exist in such a form that they are of benefit to competitors and, if released in the wrong way, can be seriously disadvantageous. There are genuine security questions in which the nation's genuine national interest can be affected by the release of information. So the principle of secrecy in government is one that we have to acknowledge is genuine and legitimate when one considers the actual operations of public policy. There are many occasions when I think the national interest can genuinely be adversely affected if matters that ought to remain confidential are in fact released.
Then, of course, there is the question of the proper accountability mechanisms in a parliamentary democracy. There has to be a proper balance in terms of the responsibilities of this parliament to ensure that governments do act in the public interest and that politicians are actually preserving confidentiality in the interests of the public, not in their own interests—for instance, to provide a shield to stop criticisms of their actions.
We have to keep those two propositions firmly in balance when considering our responsibilities, particularly in this chamber. I think the Senate has a particular role in regard to accountability in terms of ensuring that governments meet their obligations for the national interest. On the other hand, I think it has to be also acknowledged that, as politicians, we are more than capable of pursuing our own agendas in such a way as to present criticisms that are in fact unfair and unreasonable, and it may well be that we don't get the balance right. I think we have to acknowledge that as well when we're considering these questions.
These are matters of such importance that I remind senators that we are now in the circumstance where there has been some change in these questions. In my time here, I've noticed a significant change. This principle of providing that balance between the rights of government towards genuine public interest confidentiality, if I might call it that—commercial secrets, for instance—and the right for the public to know and for parliamentary accountability has shifted. Since 2009, all our proceedings in Senate estimates and the like have commenced with a statement. The chairs of the various estimates committees are required to read out a statement to officers so that they understand that the simple fact that they don't like answering a question and they claim that questions are within public interest immunity is not sufficient. The very fact that a government claims it is in itself not sufficient. It's up to this chamber to assess that claim. To make the assertion is not in itself sufficient.
We notice that that too often is the case, even today, despite the change that's occurred. No matter how many times these statements are read at the various parliamentary proceedings, there are still officers and there are still ministers who presume that their assertion is sufficient in itself. I can recall the circumstance within this government where the minister—the current Prime Minister, in fact, as immigration minister—made claims for public interest immunity and asserted that there were matters in regard to immigration questions that should not be made available in public for documents that he himself had not actually read. He simply made the statement to a committee—in that sort of arrogant, bombastic way that he does—that he was familiar with the documents; he didn't have to have actually read them before he made any declarations of public interest immunity.
We know that responsible ministers are more than capable of making quite cavalier statements about these issues. This is particularly significant for House of Representatives ministers. In my experience, it's all too common that representative ministers are obliged to make statements on behalf of House of Representatives ministers who are contemptuous of the Senate, are contemptuous of their parliamentary responsibilities and pay no regard to resolutions of this chamber, because in the House of Representatives they're just not familiar with the simple proposition that they are required to be responsive to the parliamentary procedures in the way in which governments are in the Senate. It's a simple fact of life because no government here is likely to command a majority. In fact, in my time here, it's only happened once, and that turned out to be a complete disaster for the government because it pursued industrial relations matters, when it had its head, which tended to prove to people what its real intentions were and undermined public confidence more quickly than it could possibly have imagined.
We have a situation in this parliament alone where there have been 124 occasions where this government has refused to respond to requests for documents. This has occurred 124 times. I haven't actually looked at the detail, but my guess is that most of those would be House of Representatives ministers. My guess is that's the case. I could suggest that Minister Pyne is a minister who could be categorised as probably the greatest exponent of contemptuous behaviour when it comes to parliamentary procedures, especially on matters that originate in the Senate, so that does put Minister Payne in the somewhat difficult position of representing him here; I acknowledge that. She's required to carry out the advice that he's provided, in the most flimsy of circumstances. We have a situation where there have been four sets of documents requested on the basis of returns to orders that have been rejected. On two of them, to date, the commissioner for freedom of information has overturned the government's assertion that they were matters of state security or commercial in confidence or whatever claims were made as to the proposition that the information should be withheld, and the third matter is still before the commission. So we have to recognise the pretty sorry history, in that regard, when it comes to these particular matters.
As to that circumstance, we have to say that the government's assertion that it must operate in secrecy has been undermined by the changes to the FOI laws that have occurred in recent times. The FOI requirements and the commissioner's requirements do mean that there will be a different set of criteria by which a minister cannot just automatically assert that he or she does not want to see this information made public. This is despite the fact that this government has cut the funding to the FOI office, has cut the capacity of the FOI commissioner and has reduced the number of commissioners who are available to do the work. Of course, the FOI commissioner—one commissioner now—is finding it particularly difficult to cope with the workload in these circumstances. This is the way in which governments respond to these difficulties. Rather than dealing with the substantive question of whether or not information should be made available, governments seek to retain information for themselves—not for genuine issues of national security or commercial in confidence but because they want to protect themselves from public criticism. That, to me, puts governments in an entirely different category altogether.
Let me deal with this particular matter. I do note that the minister, the Minister for Defence as she was then, representing the Minister for Defence Industry as he was then, did produce a letter to the President of the Senate on 26 June outlining the case as to why the government's position on the statement of public interest immunity should be upheld. Of course, it was nowhere near as substantive a proposition in that letter as the one the minister outlined today. I don't blame her directly for this because it was the sort of letter that I think was probably drafted in Minister Pyne's office. It's the sort of contemptuous proposition that we see time and time again, where the minister representing the minister is obliged to table a letter which doesn't actually argue the position very well at all. One has to look to the newspapers. In this case, if you turn to the Financial Review on 21 August—so, from 26 June, when the minister's statement is tabled, we have to go to 21 August to the Financial Reviewwe see quite a detailed report as to the state of negotiations between the Australian government and the French government and between the Australian defence department and the French authorities in regard to the contract discussions towards the development of what is called the 'strategic partnering agreement'. It's not good enough to provide this Senate or a committee of this Senate with important information about the state of play with regard to the expenditure of $50 billion, but it is good enough to provide it to the Financial Review. So matters of national security can't be provided to the Senate, but they can be provided to the Financial Review.
This article has all the hallmarks of a ministerial briefing, to the point where it's actually said, 'The minister has full confidence in the negotiators.' In particular, it says there are military officers who are conducting the negotiations. And here we have a statement where the minister is saying:
… I throw my complete support behind Rear Admiral Sammut in making sure the government holds firm on getting the right terms and conditions in the Strategic Partnering Agreement.
The article points out that the problems with French officials with regard to the contractual negotiations go to the issue of warranty—that is, warranty in terms of the new submarines that are being built—and go to the issue of the cannibalisation of the existing Collins class submarine workforce.
Then there is the question about the sale or the merger of Naval Group, and in particular the problem that emerges when the government has sought to treat this as a government-to-government negotiation, which is stated here as one of the reasons why the government considers the release of the template 'may adversely affect our international relations'. Of course, what they mean by that is the French naval company may be sold to an Italian company. So instead of dealing with the French government, we may be dealing with a company that's going to be owned by the Italian government.
Now, if this is the critical issue, why can't this Senate be advised? We don't have any intent to break national security; we don't have any intent to bust open the negotiating position of the Australian government. And surely, if this chamber can't be advised, a Senate committee can be advised as to what the details are. A number of Senate committees have looked at this question of this quite important naval contract. Remember, this is the government that couldn't find $200 million to keep the car industry going in South Australia, but can find up to $100 billion to keep the shipbuilding industry going. I don't begrudge the importance of maintaining an Australian capability with regard to naval shipbuilding—in fact, I think that's incredibly important. I just note that this is a minister whose preoccupation is not with a genuinely national naval shipbuilding program; it's with a national marginal seats campaign for the Liberal Party. And you would have thought that if they were genuinely concerned about this national project that will take us through to 2080, engagement with the parliament more broadly would have been a matter of higher priority for this government.
And so it is in this context that I think there is a more fundamental question here about the approach that this government takes to this important—very, very important—naval shipbuilding project. This is a project that will go way beyond the life of this government, no matter how limited this government's life would appear to be. By any imagination, there will be a turn in the political cycle. It is important that there be a proper discussion about these important contractual discussions that are going on at the moment. The opposition is entitled to know what is actually happening. This parliament is entitled to know what the engagements are. We should not have to read about it in the Financial Review. We should be able to have direct access to this information.
We want to know basic things. What will the level of local content be? What will the operations in terms of the Naval Shipbuilding College be? What will the skills acquisition process be? We are entitled to know exactly what's going on when the government once was willing to accept the assessment that there would be 90 per cent local content but now won't tell us what the local content arrangements are going to be. Isn't it ironic when none other than Dr Hewson, former leader of the Liberal Party, says there should be transparency in Defence procurement and says, about the government's claims of commercial-in-confidence, 'Quite frankly, that's nonsense.' We are entitled to have a much higher level of engagement with the parliament. While I accept what the minister is saying with regard to the direct negotiations right now, the way in which this has been handled is nothing short of appalling.