Senate debates

Tuesday, 23 November 2021

Committees

Community Affairs References Committee; Report

6:23 pm

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | Hansard source

I'll just touch on the nature of the motion that's in the report, and that is to get access to legal information, legal advice. Over and over again, the government walks into this chamber and says that it's legally privileged and it would cause harm to the public if the legal advice was released. But the fact of the matter is: the Senate has never accepted legal professional privilege as a public interest immunity. This goes back through history, here in Australia, even to the New South Wales parliament, where Mr Egan, the Treasurer of New South Wales, was actually discharged—taken from the chamber. He was taken from the chamber because he failed to deliver documents under an order for production of documents. The matter then went to the High Court, in a case called Egan v Willis, where the High Court affirmed the power of the Senate to order the production of documents.

There was one matter that was left untouched by the High Court, and that was whether or not that power applied to legal privilege. That was then dealt with in a matter called Egan v Chadwick in the New South Wales Court of Appeal, the highest court in New South Wales. Three justices in that court ruled unanimously that the upper house has the ability to call on legal advice to be tabled and is entitled to do so when conducting a review of the government's processes or, indeed, of the government's actions in respect of either legislation or its executive function. So let's make it really clear that, in actual fact, the claim being advanced by the government in this instance is erroneous. Even if you argued there was harm, that doesn't prevent the information being tabled in camera. There is no legal basis for the government to deny access or to not table this legal advice.

I would encourage further thought in relation to this matter. I will be supporting the motion, and there may be the situation where the minister is called to the chamber. And, if the explanation is unsatisfactory, I suggest that maybe we go down the pathway of the New South Wales parliament and eject the responsible minister from the chamber. That's what we should do, because we've got a problem here. We have a problem here in that people outside of the Senate, and journalists, all think that it's a bit of a joke, the Senate, in terms of its orders for production of documents, in terms of the answering of questions on notice and so forth—that the whole thing is a bit of a joke. And we might think to blame the government for that, or maybe even public officials. But, I'm sorry, it's not their fault. It's the fault of the Senate. That's whose fault it is. It is the fault of the Senate and the senators in it who don't recognise their responsibility to enforce orders of the Senate and to use all necessary means to enforce those orders and allow us to do our job.

I encourage senators to go and have a read of Erskine May. Erskine May is, of course, the United Kingdom's equivalent of Odgers. It's available online, and you can even go back to the version just prior to Federation, which applies to this chamber. You can read through it. It's really interesting. You can see how the House of Commons established its privileges. You can see how the House of Commons set in place all of the things that needed to be done. There are stories in there of the Serjeant-at-Arms of the House of Commons going out to arrest someone, as ordered by the Speaker, and the serjeant-at-arms being called before two judges, and the judges putting the serjeant-at-arms in jail. Do you know what happened, Madam Deputy President? The House of Commons put the judges in jail. That's where we established that parliament was supreme. Of course, there is respect for the boundaries. There's also another case in there where an MP was arrested by some sheriffs. And the serjeant-at-arms, under orders from the Speaker, then arrested the sheriffs so that the member wasn't prevented from discharging their parliamentary functions. Over 1,000 contempt matters have been dealt with over the history of the House of Commons. They went through a whole range of processes—blood, sweat and tears—to establish the powers that are exercised by this Senate. Those are the powers that we inherited through section 49 of our Constitution. And so we are giving great disrespect to those members of the British House of Commons who, over centuries, established these powers. When we look around and we say, 'Gee, we don't like the government not fronting up with the document,' the press gallery is watching us and reporting on the fact that actually the Senate doesn't have the powers or doesn't seem to have the powers. It does have the powers. It's just the fault of senators who don't respect the way in which those powers were given to us.

I accept that you can abuse power and that that's grossly irresponsible. If you use a power in an improper way, that is grossly irresponsible. But it's also irresponsible not to use a power for proper purpose, and we should recognise that. We need to think about this. It's not like we can go to someone who sits above us and say, 'Hey, government's not playing it fair.' It's not like that at all. We have to look at ourselves to enforce the powers that were given to us earned through blood, sweat and tears, through arrests. The privileges in freedom of speech, Article 9 of the Bill of Rights, flow from kings arresting MPs and putting them in the tower and so forth. These are powers that were earned over a long period of time and are there for us to use and to use properly, and it is wrong if we don't use them properly. So I just urge that, if we get to the point where the minister refuses to provide the documents, let's look to the New South Wales parliament, let's look to Erskine May. As senators, it doesn't matter what side you are on, because it's quite important that the powers are properly exercised and not let slip. That's my suggestion. That's my contribution. Let's see what happens in this motion. If it gets up, let's see what the response is. Let's take it to the final place and exercise our powers fully; otherwise, we will just be looked upon as a joke.

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