Monday, 22 November 2010
- That the Senate—
- the response by the Information Commissioner to three orders of the Senate seeking information about the Government’s proposed mining tax, dated 26 October 2010, which was tabled in the Senate on 15 November 2010, and
- that the Information Commissioner is of the view that it is not open to him to provide a report to the Senate as ordered because the statute which established his office does not encompass the function envisaged by the Senate in its orders, or by the Government in the agreements on parliamentary reform;
- advises the Information Commissioner as follows:
- that under section 49 of the Constitution the Senate has the undisputed power to order the production of documents necessary for its information, a power which encompasses documents already in existence and documents required to be created for the purpose of complying with the order,
- this power may be modified only by express statutory declaration, as required by section 49 of the Constitution,
- nothing in the Australian Information Commissioner Act 2010 is expressed as a declaration for the purpose of section 49 that would have the effect of limiting the exercise of the power by the Houses of the Commonwealth Parliament in respect of the Information Commissioner,
- multiple resolutions of the Senate affirm the principle that information may be withheld from it only following consideration by the Senate of a properly founded claim of public interest immunity, and
- the Senate has on numerous occasions exercised its power to require statutory agencies and officers to produce information in response to orders; and
- orders the Information Commissioner to reconsider his position as soon as possible and provide the information required by the Senate.
The government opposes this ill-conceived motion. To be clear, the commissioner has expressed a view, which is in a letter to the Clerk of the Senate dated 11 November 2010, about his inability to exercise a function as Australian Information Commissioner that has not been given to him under legislation. The powers of the Australian Information Commissioner are clearly set out in the Australian Information Commissioner Act 2010, which was passed through parliament on 13 May 2010. Those powers do not include a power to arbitrate in disputes over the production of documents that arise on the floor of parliament. It is the case that agreements reached between the ALP, the Greens and the Independent members for Denison, New England and Lyne propose that the Information Commissioner have a role in this process. The government is committed to implementing these agreements, but the relationship of the commissioner to the parliament and the functions involved do raise some implementation issues.
The Prime Minister has therefore asked the Department of the Prime Minister and Cabinet to examine the issue and advise on possible options for implementing the agreements. Once that advice is received, the government will progress this initiative. If the Australian Information Commissioner is to have this function, it is necessary and appropriate for the functions, powers and protections that would accompany it to be stipulated in legislation.
I might add that the Information Commissioner does not hold the Treasury documents that, I am advised, have led to this motion. For the reasons outlined, the government opposes this motion.
Before we hear Senator Cormann’s comment, just so that the chamber is very much aware of what this motion relates to: the difference of opinion that has arisen between the Clerk and the Information Commissioner as to his powers under the act is not really the question. The fact is that this chamber should be given access to whichever documents it sees fit. There have been a number of orders for production put through this chamber in recent months that the government has defied. The one that is before the chamber at the moment is in relation to the National Broadband Network business plan. Senator Cormann is pursuing others. All of us in this chamber put these sorts of motions through, for different reasons, from time to time.
I would like to point out that the opposition had 12½ or 13 years to move this kind of instrument through, and they did nothing. When the Greens put a draft motion for this proposal through the Senate Finance and Public Administration Legislation Committee earlier this year, we got a resounding, very ill-informed and badly thought-out rejection from both sides of politics. While I respect Senator Cormann’s right to move a motion such as this through the chamber, which the Greens will be supporting, this is utterly dripping with hypocrisy. This proposal was contained in the Australian Greens agreement with the Prime Minister which was a very important part of Ms Gillard’s ability to form government in the first place. We will continue to pursue that with the government. We would like to see this situation resolved so that a minister, for whatever reason, can no longer defy this chamber or the House of Representatives when there is an order for production. It is a very serious matter for a minister to defy such an order. We would like to see an independent umpire set up, and we believe the Information Commissioner is the proper place for that. Whether it is explicitly stated in his or her act or not is entirely beside the point. The chamber should be given access to this material when it is asked for. It should not take the word of the minister that it is commercial–in-confidence or whatever the excuse of the day is.
We want this independent arbitration mechanism put in place, as it has been in New South Wales for years. We look forward to the resolution of these matters as soon as we can.
Just quickly in response to some of the comments by Senator Ludlam: I think he is well aware that I have pursued for some time now, in the interests of greater accountability and a capacity for the Senate to scrutinise the activities of government, the requirement for governments to properly be required to explain any refusal to release information sought by the Senate—in particular a requirement to point to the public interest ground and to explain the harm to the public interest that would follow from the release of the information which the government is refusing to release.
Having said that, I advise the Senate that this motion is exclusively based on advice from the Clerk of the Senate. Very clearly, this government has for some time now refused to provide information that has been sought by the Senate on a range of issues. This time it is in relation to the mining tax, but it has been, as Senator Ludlam has outlined, in relation to a great variety of matters. In fact, this government has been very secretive in its approach to the release of information. There is a proper process to be followed here. If the government wants to refuse to provide information sought by the Senate or by a Senate committee, it has to point to the public interest ground on which that refusal is based and it has to explain the harm to the public interest. The government consistently refuses to do so. I believe this is quite contemptuous of the role of the Senate.
In the agreement between the Greens and the government and between Mr Windsor and Mr Oakeshott and the government it was agreed that any disputes in relation to the release of documents ought to be arbitrated by the Information Commissioner. Clearly the Information Commissioner has the power to do so—as is outlined in this motion which is based on advice from the Clerk—because nothing in the act prohibits him from doing so and under the Constitution he has that capacity. This role does not just encompass documents already in existence; it also encompasses documents required to be created for the purpose. (Time expired)
Question agreed to.