Deborah O'Neill (NSW, Australian Labor Party) | Hansard source

I wish to move a motion in relation to the 182nd report of the Committee of Privileges regarding a possible contempt. The report relates to the committee's inquiry into possible obstruction of the naval shipbuilding inquiry of the Economics References Committee. I move:

That the Senate adopt the conclusion at paragraph 1.50 of the 182nd report of the committee that no contempt be found in relation to the matters referred.

Recommendation 1 is that the Senate adopt the committee's conclusion that no contempt be found in relation to this matter.

The inquiry was referred to the committee in June last year. The Senate required the committee to consider whether:

The committee sought and considered submissions and correspondence from the references committee, Senator Patrick, the late Senator Gallacher, Minister Reynolds and Minister Payne (in her capacity as Minister representing the Minister for Defence).

Briefly, this matter relates to the references committee seeking access to Australian Industry Capability plans which were relevant to the naval shipbuilding inquiry. The references committee made initial requests for unredacted versions of documents in February and May 2020 which were declined by the Department of Defence in June 2020.

The chair of the committee lodged a motion to order the secretary of Defence to produce the documents to the references committee. The Senate agreed to that motion on 6 October 2020 but then the Minister for Defence declined to provide the documents. The minister, in fact, made a public interest immunity claim centring on the commercial sensitivity of the documents.

In November 2020, the Senate resolved not to accept the public interest immunity claim and ordered the minister to provide the documents to the committee. In response to this order, heavily redacted versions of the documents were provided to the references committee including one document which was more heavily redacted than a previous version of the document actually released under the Freedom of Information Act. That document had already been published on the committee's website.

Criteria for a finding of contempt

I wish to make some commentary about the criteria for the finding of contempt. The first criterion the committee must consider under privilege resolution 3 is whether the conduct of officials or the ministers in withholding the documents could amount to a substantial obstruction of the references committee performing its functions. The inquiry powers of the houses and their committees are essential to support the houses obtaining the information they require to effectively perform their legislative and accountability functions. It cannot be doubted that a committee being unable to obtain information at the heart of a matter referred to it for inquiry could substantially obstruct the committee in the performance of its duties.

The second criterion the Privileges Committee is required to consider is whether there is another, more appropriate, remedy available (other than the Senate's power to punish contempts). The committee accepted that this power is undoubtedly a remedy available where a committee is obstructed or a Senate order is not complied with. However, as a matter of practice, the Senate has generally pursued political or procedural remedies rather than having recourse to contempt power.

The committee considered the most obvious alternative remedy in this case was the provision of the documents to the references committee on terms that allowed it to proceed with the inquiry. It therefore sought advice from Minister Payne and the chair of the references committee as to whether arrangements had been agreed to provide access to the documents on such terms. Negotiations for provision of the documents required by the references committee were, to say the least, protracted. However, the references committee ultimately reached agreement with the department on appropriate arrangements for access to the documents.

The final criterion the committee was required to consider relates to culpability and, in particular, whether any person alleged to have engaged in conduct which could constitute a contempt had a reasonable excuse for that conduct. However, the committee did not consider it necessary to evaluate the issue of culpability because of the conclusions it had reached in relation to the other criteria.

Findings

With regard to the findings of the Privileges Committee, the committee noted that ministers and public servants have a direct accountability obligation to the parliament. The government's own guidelines for official witnesses appearing before parliamentary committees state that they—and I quote—'are intended to assist in the freest possible flow of information to the parliament'.

The intention of the government guidelines was not fulsomely adhered to in the initial responses by the officials to requests for information from the references committee.

While the committee acknowledged the public interest grounds raised by the former minister and maintained by Minister Payne, the harm to the public interest would only have arisen from disclosure of the documents beyond members of the references committee. Senate committees routinely handle sensitive information without unauthorised disclosure and, where there are particular sensitivities, committees often—often—accommodate arrangements which provide added assurance that the confidentiality of information will be maintained.

The committee noted its concern that officials were unable to expeditiously reach agreement with the references committee to provide the information in a manner which allowed that committee to perform the inquiry delegated to it by the Senate.

Let me be very clear. It should not require a reference of a matter as a potential contempt before officials reach a satisfactory arrangement to provide information relevant to a Senate inquiry on terms that protect any genuinely sensitive information. The behaviour revealed in this saga cannot continue.

As the information has now been provided, albeit reluctantly and belatedly, the committee concluded that no minister or official should be found to have committed a contempt in this matter. In doing so, the committee recognised that the contempt jurisdiction is primarily a remedial jurisdiction which exists to prevent obstruction of the Senate, its committees or senators performing their functions.

Accordingly, the committee has recommended that no contempt be found in relation to the matters referred.

However, the committee cautioned that it cannot allow a creeping understanding that orders of the Senate or its committees may be ignored with impunity. The Privileges Committee has rightly been sparing in its recommendations that a finding of contempt should be made and reticent to recommend further penalties where contempt has been found. There should be no doubt that it will do so if it is necessary to resolve such matters without implicitly conceding an unfounded constraint on the powers of the Senate.

In short, the committee considered these were matters which ought to have been promptly resolved through negotiation between committees and officials applying the direction in the government guidelines for officials to assist in 'the freest possible flow of information to the parliament'.

Recommendation for audit

Finally, the committee is concerned by the protracted delay in relevant information being provided to a committee inquiry by the Department of Defence. The committee therefore endorsed a recommendation of the late Senator Alex Gallacher that: the Auditor-General be asked to conduct an audit of compliance with obligations to respond to the Senate and its committees in a timely and accurate manner. Specifically, the committee recommended that ANAO conduct an audit of the Department of Defence and consider auditing compliance by other large departments. Such an audit would help to ensure that departments and agencies have a clear understanding of their responsibilities to parliament and processes which support them effectively fulfilling those responsibilities.

I commend the report to the Senate.

Question agreed to.