Wednesday, 13 May 2009
Order of Continuing Effect
- That the Senate—
- notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate;
- reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate;
- orders that the following operate as an order of continuing effect:
- a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and
- an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee,
- the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document.
- If, after receiving the officer’s statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister.
- If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document.
- A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.
- If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.
- A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.
- A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (1) or (4).
- If a minister concludes that a statement under paragraph (3) should more appropriately be made by the head of an agency, by reason of the independence of that agency from ministerial direction or control, the minister shall inform the committee of that conclusion and the reason for that conclusion, and shall refer the matter to the head of the agency, who shall then be required to provide a statement in accordance with paragraph (3).
- requires the Procedure Committee to review the operation of this order and report to the Senate by 20 August 2009.
I reserve my right to speak after the government minister has spoken.
The government does have concerns about this motion. It is one of those balances that we make when we look at the notice that is being proposed and come to the conclusion that we do not support it. Senator Cormann presents this motion to the Senate as what appears to be, and I think the motion expresses that, a consolidation of what I might call more broadly past Senate practice and procedure. Perhaps I could also include guidelines or other determinations or other rulings of the Senate.
The difficulty with that process is that it may not be the case that it is clearly a consolidation only. Instead, the motion could seek to entrench an interpretation of past Senate practice and procedure, and the interpretation that is now being placed upon it is either Senator Cormann’s or some other interpretation, at least to the extent that it is a singular view, not what may be called a debate about past Senate practice or procedure. It is a limited interpretation and it could limit the operation of the way in which these matters are raised in the present circumstance. In other words, it could create confusion not clarity. That is one of the concerns that the government has with a motion such as this, especially when you seek to provide a consolidation of past guidelines, practices, precedents and rulings of the Senate. At some point you have to determine what that past precedent, ruling, practice or guideline is and then apply that view to the order, turn it into words and produce the order as described.
What that means, effectively, is that you have prescribed a meaning to a ruling, procedure or practice that existed at the time of a particular circumstance. The concern I have with that is that it then becomes your reflection, or others’ reflection, of what that past practice is. It does not allow the opportunity for a debate to occur in a current circumstance, which you can then reason or argue by analogy is similar to a past precedent or practice. In fact it may not be, in which case you have consolidated into a list a process that may not accurately reflect the past precedent. That is not to say that it was not taken in good faith that you were endeavouring to reflect the past precedent, practice or guideline—that is not what I am suggesting. It is a case where you are stopped from arguing by analogy what the previous practice was, how it applied to a particular factual matrix and how it would, by analogy, apply to the current circumstance, because that is now lost. You would then be applying the order written in words that are currently expressed as to what those past practices and precedents mean.
That is, quite frankly, a worrying position. Passage of the motion will mean that the Senate is, I think, denying itself the chance to take a wider view of past precedent and practice, which is what they need in cases where public interest immunity is claimed. In truth, the Senate will have decided to shut the debate on public interest immunity. New cases will be judged not on past practice or precedent but on the words that are currently subscribed within the order itself. That is a concern that should not go without some noting. The other broad frame within which you should examine this motion is: is it a significant improvement on the current practices of the Senate? I do not think so. I think it could be regarded as a diminution of the role of the Senate and the way in which the Senate determines itself, because the Senate usually does not provide itself with fetters or processes of this nature which circumscribe the processes it may take in pursuing public interest immunity.
What we have in Senator Cormann’s motion is an attempt to compensate for, if I can say it politely, a view that Senator Cormann may have arrived at in relation to the behaviour of witnesses—and/or some senators or ministers, for that matter. This is not the appropriate mechanism to use to change people’s behaviours, demeanour or manner in which they approach the Senate. Rather than seeking to ensure that the witness reads Senator Cormann’s mind in relation to the way these things go, the means of pursuing these matters is usually in questioning the way you might go about questioning—and of course if a senator were unhappy with particular questioning then they could always bring it to the chamber.
At least, in this instance, what I think Senator Cormann is trying to do is to improve the compliance and attitude of witnesses. If that is the case, this is not the process, I respectfully submit. The process should be to improve the guidelines, to improve the way the rules operate within the estimates process and the committee process. This ultimately becomes a blunt instrument which is unlikely to achieve the purpose that Senator Cormann hopes it may achieve—changing the attitudes of witnesses, senators or ministers.
The motion begins by making the outrageous claim that ministers and officers are refusing to provide information to the Senate, yet at no stage has Senator Cormann demonstrated that the minister or officials have acted in this way. I do take it that there are likely to be circumstances where ministers or witnesses do not provide an answer and may not provide a reason for it. However, in many instances, if questioning were to continue it may reveal a particular reason for the refusal at first instance—but that rests in a committee, not in trying to manufacture an audit to deal with a witness who may, might I say, sometimes be more difficult than others. The motion does not outline a coherent process for witnesses who claim public interest immunity. Instead, what we have is a partial description of a process, with no time frames and no key outline of actions that would follow. It also confuses, in part, the process with the outcome that is being sought. The concern that the government has is that it will only entrench confusion about the definition of public interest immunity and will not bring clarity. The motion brings further confusion with its option for in camera evidence in committee hearings and estimate hearings. Clearly, estimates hearings have no provision for in camera evidence and would be unworkable with in camera evidence provisions. They are estimates hearings, which, by their very nature, are held in public.
Where there is a desire by both parties to have the information provided, the guidelines allow the committee and the minister at the table to arrive at sensible arrangements to deal with questions that may have public interest immunity attached, or be claimed to have public interest immunity and would otherwise be able to have public interest immunity invoked. For example, in estimates hearings I have suggested we might deal with it by way of another hearing, or a hearing outside estimates, or a reference or other process which allows the committee to go in camera or perhaps undertake some more formal examination of a particular point. This motion leaves out that ability and entrenches a very narrow process where you provide only this path, quickly funnelling people to use only this process to achieve these types of claims. In fact, you narrow the case for actually throwing light into dark corners, rather than trying to persuade people’s attitudes or beliefs to provide an answer.
The motion allows for almost unlimited opportunities for individual senators to use public interest immunity as a reason to disrupt the proceedings of a committee. I do not suggest that senators would do that, but they could have a mind to point to a sessional order and say, ‘This is a right. I am going to use this order and I will use it to deal with a particular circumstance that has arisen’—perhaps a nonresponse by a witness. These could be witnesses not only in estimates but also who are not public servants. They could be from a whole range of circumstances. It is not confined only to bureaucrats who may not want to answer your question; it applies to witnesses at large. You are putting a different slant on it, and I do not think it takes into account the different circumstances that may apply in respect of, for instance, a nonresponse from a private witness or from a witness from another association. Unfortunately, you lump them into one basket to the detriment of the process that generally takes place in the Senate and to the detriment of the courtesies that are extended by senators, ministers and committees more broadly. It is a concern that senators might take advantage of that provision to badger a witness who is not a public servant and who is not at estimates but is in a committee process.
I will take the interjection—the argument is, of course, that there is a process for that. You are now seeking to put in place a process which lifts precedence, practice and guidelines from what was considered to be just that—precedence, practice and guidelines—to allow flexibility into an order. So you are turning it into a very different beast and one that not only will be used but could also be abused.
That is what the government is concerned about. You should take the opportunity of listening to the submission I am making, rather than simply holding on to what I consider to be a poorly drafted document that does not take into account all the circumstances that might arise. It circumscribes quite wrongly the way the Senate actually works and I think it can be open to abuse in the process that you have put in place.
The difficulty, in truth, is that it provides more confusion than clarity. Where the motion does get to detail public interest immunity—and this is one matter that the opposition has missed—it could be construed to circumscribe and limit the operation of public interest immunity by the way it is structured. You do not have an embodiment of the test for public interest immunity within the order, but you do have words which describe public interest immunity. I think it could be reasonably construed that you are limiting it only to those instances and not to the broader view of what public interest immunity is. That is, similarly, a concern. Nowhere does the motion establish an operational process for clarifying whether the risk of harm arising from the release of the information outweighs the senator’s need for information. You are simply asserting that the senator’s need is by far greater.
That is the concern that I am putting in relation to the document. If you choose to ignore that, the concerns I have raised are here on the record for all to see when this does not operate in the way that you might otherwise have wanted it to operate, or if it does not provide the outcome that you hope it will.
The motion aims to specify the way that public interest will operate. In doing so, I think it will also curtail how public interest immunity will be interpreted. It will bog us down in the detail of arguments about the order rather than the facts of the particular case. We could end up arguing about a particular order and how it operates rather than public interest immunity and the way public interest immunity should operate. The primary test is whether the risk of harm arising from the release of the information outweighs the senator’s need for information. But that is not even reflected in the document. It is left for the individual senator to surmise that within your order. On the basis of the reasons I have outlined, this is not a document that I recommend to make an order of the Senate. I do understand that I do not have the numbers in this place, but I think it is necessary to outline the concerns that I have with the process that you are seeking to foist on the Senate.
I am sincerely shocked at how quickly this government have turned into a secretive government. I am shocked at the long and detailed presentation we have just had from the government, which essentially sums up one thing: they are running scared from openness, transparency and public accountability. This runs counter to everything they have said not only before the last election but also since. I will quote to Senator Ludwig a statement made by Senator John Faulkner at a recent conference. The speech, entitled ‘Open and transparent government—the way forward’, was made at Australia’s Right to Know, Freedom of Speech Conference. He said:
… the best safeguard against ill-informed public judgement is not concealment but information. As Abraham Lincoln said: ‘Let the people know the facts, and the country will be safe.’
We happen to be the opposition in this place and we happen to have the job of holding the government to account and scrutinising the activities of government. There is a very important process to help us to do that, which is the Senate committee process, whether it is through Senate estimates or whether it is through specific inquiries. We ask questions because we want information—and, yes, there are going to be circumstances when, quite properly, government can claim recognised grounds as to why it would not be in the public interest to release a particular piece of information or document. Of course we recognise that. But I have become increasingly frustrated, over a series of four Senate estimates periods—and I have consulted with colleagues who have also become increasingly frustrated—because I have faced a barrage of obfuscation, of refusals to answer legitimate questions and of refusals to provide documents that were quite properly requested without ministers and officers of the government complying with what is well-established Senate practice and procedure.
I am a reasonably new senator in this place and I recognise that I am not as experienced as people who have served for longer periods. So, after my first Senate estimates, I went to seek advice from the Clerk. I said, ‘I asked a question and they just said, “This is advice to government, so we are not going to tell you anything else,”’ as if it were a blanket reason to refuse to answer a question.’ On that particular occasion, if my memory serves me correctly, the question was, ‘Have you provided advice to government about changes to the private health insurance rebate, to Lifetime Health Cover and to the Medicare levy surcharge threshold?’ It was in February 2008. The answer was essentially, ‘We can’t tell you that; it’s advice to government.’
When I asked about this, the Clerk of the Senate pointed me to a piece of advice, and I was very appreciative of it. The date of the advice was 19 May 2005. Chances are that this was prepared by the Clerk of the Senate for the benefit of the then opposition. It talks about what are and what are not reasonable grounds for public interest immunity claims. Reasonable grounds—and there are qualifiers to them—can be:
… prejudice to legal proceedings, prejudice to law enforcement investigations, damage to commercial interests, unreasonable invasion of privacy, disclosure of Executive Council or cabinet deliberations—
and that is often abused by government because it refers to deliberations, not just to any document that may come before cabinet—
prejudice to national security or defence, prejudice to Australia’s international relations, prejudice to relations between the Commonwealth and the states
These are recognised public interest grounds as long as they are properly justified either by officials or, as is required, by a responsible minister. I thought, ‘This is pretty good.’
In May 2008 we had the Rudd government’s first budget and, sure enough, it included an increase in the Medicare levy surcharge threshold and a whole series of other nasty things about which we quite legitimately asked a whole series of questions. The department said: ‘No, we can’t answer that; it’s advice to government. We can’t do this, that or whatever.’ I thought: ‘But I have the advice that the Clerk of the Senate provided to the then opposition; surely if it was good for them it must be good for us.’ It lists unacceptable grounds for public interest immunity, one of which is advice to government. I quote:
…the mere fact that information consists of advice to government is not a ground for refusing to disclose it. Again, some harm to the public interest must be established, such as prejudice to legal proceedings, disclosure of cabinet deliberations or prejudice to the Commonwealth's position in negotiations. Any general claim that advice should not be disclosed is defeated by the frequency with which governments disclose advice when they choose to do so.
I thought, ‘I am pretty new but I have something here that I can use to hold the government to account and get information that, as a senator and a committee member, I think the people of Australia are entitled to.’ But, no, the chair refused to assist me in getting the officer to properly respond. The government’s own guidelines, put in place in 1989, require that claims of public interest immunity can only be made by ministers. I raised this. I said, ‘Only a minister can make this claim of public interest, in accordance with the government’s official guidelines for witnesses before parliamentary committees.’ The secretary of the department at the table said, ‘No, this is not a matter for the minister. We are just not going to answer it; it is advice to government.’
I have example after example. I could tell you about the experience I have had with the Senate Select Committee on Fuel and Energy. We requested information from the Treasurer about the modelling for the Carbon Pollution Reduction Scheme. The request has been going backwards and forwards since December 2008 and there have been two orders of the Senate, but the government, to this day, have not provided a proper explanation as to why it is not in the public interest for a whole range of information to be provided. They claimed commercial interest in relation to a very small proportion of the information requested and then made the blanket statement: ‘Sorry; we can’t provide you any of it because of commercial interests’—without actually justifying where the commercial harm would be. We on this side of the chamber do not think it is in the public interest for the Senate to allow that secretive trend in this government to continue. We think that this government should embrace the openness, transparency and public accountability that they profess in their public statements, and this motion provides the process to do so.
After three or four further Senate estimates and some further inquiries—and a lot of the players in those inquiries are actually in this chamber right now—a chair of a committee actually made a ruling on me to say that I was not allowed to ask for a particular issue to be referred to a minister and that I was not allowed to insist on a statement as to why it was not in the public interest for a particular piece of information to be provided to the committee. I am actually not being critical of the chair, because it is currently the situation that we have pieces of advice and past resolutions everywhere. We have a very disparate range of piecemeal documents and I suspect that people are getting a little confused as to what the proper process and procedures are. What is the established Senate practice and procedure? There will always be times when new people come in to the Senate. They are going to face all these problems of trying to find out how to get the information and documentation out of the government that they need in order to properly scrutinise its activities. And rather than have this piecemeal series of resolutions all over the place, Senator Ludwig is quite right: this particular resolution seeks to both reaffirm and consolidate those past resolutions into one easy location so that there is a very easy reference available. When we are next at a Senate estimates committee and an officer of a department or a minister inappropriately refuses to explain why we are not entitled to a particular piece of information or why it is not in the public interest to provide a particular piece of information, then we can point to a continuing order of the Senate and it will be there—there will be a process which will very clearly outline how the officer or the minister has to deal with it.
We are not prejudging the merits of a particular claim. We recognise that there will be occasions when we might want access to more information than would be appropriate, and all the government has to do is to explain why, in the government’s judgment, it is not in the public interest to provide that particular piece of information. When I say ‘public interest’ I am not talking about the political interests of the government. If I can go back to my example earlier, why was it not in the public interest for the government to reveal information about discussions they had in government about changes to the private health insurance rebate? Clearly it was not in the political interests of the government but I think there is a serious question mark as to whether there was a proper and legitimate public interest ground. In any event, after we were continuing to bang our heads against the wall and many of my colleagues were facing similar problems, we decided there was a very clear case to consolidate and reaffirm all of these past Senate procedures and practices into one single resolution. For the benefit of all senators, I sought advice from the Clerk on essentially summarising the effect of my motion, because I think that the minister’s statements in relation to my motion are somewhat misleading and I do not think they should stand as a record in their own right. So I seek leave to table the advice that was provided to me by the Clerk of the Senate which very clearly, in four or five pages, articulates the effect of my motion.
To summarise the principles of this motion, if officers consider that there are public interest grounds for not providing information, they should state those grounds. It is very simple: they should state those grounds. If they cannot do so or if they feel uncomfortable in doing so, they should refer the matter to a responsible minister if they are requested to do so. At the end of the day, the final decision on whether to claim a public interest ground for not disclosing information should be made by a minister, with a statement of the ground, and ultimately only the Senate itself can determine whether the claim is accepted. As I have said before, these principles are actually also contained in the government’s own guidelines for Public Service witnesses before parliamentary committees, which have been in force since 1989. But secretaries of departments—Commonwealth officials—conveniently forget. Government senators chairing estimates committees are not all that enthusiastic about enforcing the rights of individual senators in those committees. They are always on the lookout for how they can protect the best interests of their government. So having this in one single motion as a continuing order of the Senate will provide some clear guidance to all people involved in the various aspects of the Senate committee process as to how any claim that public interest would prevent the release of a particular piece of information should be dealt with.
Importantly, the proposed order would not affect the existing rights of Public Service witnesses to take questions on notice and to refer questions to senior officers or ministers. Essentially, the purpose of this motion is to provide everyone with a clear process for raising and dealing with public interest immunity claims and to avoid the sometimes confused discussion that diverts committee hearings when officers and committees are not sure what to do about an apparent refusal to answer a question. At the most recent Senate estimates committee inquiry, I asked a particular question and the Commonwealth officer said, ‘Well, it is advice to government. I am not going to answer it.’ I said, ‘If you’re not going to answer it, you have to give me a proper explanation.’ The officer said, ‘My answer is that I am not going to answer it.’ So you end up in this circular argument. The bottom line is this: this government have an opportunity to actually demonstrate that it is not just rhetoric when they talk about open, accountable and transparent government. They have an opportunity to embrace this motion and if they do so, then, with our support, they will be a better government for it.
Question agreed to.