Thursday, 6 March 2014
Legal and Constitutional Affairs References Committee; Report
I present the report on a claim of public interest immunity raised over documents, together with the Hansard record of proceedings and documents presented to the committee.
Ordered that the report be printed.
That the Senate take note of the report.
I am very happy to table this report. As Chair of the Legal and Constitutional Affairs References Committee, I rise to speak about this inquiry into a claim of public interest immunity raised over documents. This has been an important inquiry as it goes to the heart of the relationship between the parliament and the executive. It goes to the heart of the capacity of the parliament, in this case the Senate, to obtain information and documents about actions being taken by the executive that are of concern to the very public which elected us to represent them.
In order to provide some context to this issue, I will go to the words of the Clerk of the Senate, Dr Laing, in giving evidence before the committee on the background to a resolution of the Senate made on 13 May 2009 about the process that is to be followed when a claim of public interest immunity is contemplated. Dr Laing pointed out that the important issue is the balance of competing public interest claims—on the one hand, by government, that certain information should not be disclosed because disclosure would harm the public interest in some way; and, on the other hand, by parliament, as a representative body in a democratic polity, to know particular things about government administration so that parliament can perform its proper function of scrutinising and ensuring accountability for expenditure and administration of government programs.
The Senate referred this inquiry to the committee on 10 December 2013. It followed the government's noncompliance with multiple orders from the Senate for the production of documents concerning on-water activities under Operation Sovereign Borders. In refusing to provide the information, the government raised a claim of public interest immunity. This is a claim which has been contested by the Australian Greens as well as opposition senators. In this inquiry, the committee has sought to examine the grounds on which the government's claim of public interest immunity was based as well as the Senate's authority to determine such claims. In this case, it is unfortunate that the committee has not been able to examine the merits of this claim of public interest immunity because of the government's unwillingness to provide further information. The government has merely continued to assert the grounds upon which the claim is made but has not identified any specifics about the documents over which the claim is made.
The committee's ability to examine the merits of the claim has been frustrated because the committee was not provided with the relevant documents, nor the information contained therein, nor even a schedule listing the documents covered by the claim, as explicitly requested of the Department of Immigration and Border Protection. In the course of the inquiry, the government was not forthcoming with any information in addition to that which was already tabled in response to the orders for the production of documents—even on an in camera basis or in altered form. Therefore, the committee had no ability to consider the validity of the claims that releasing such information would result in 'possible damage to national security, defence, international relations and possible prejudice to law enforcement or protection of public safety', which are the usual bases for such a public interest immunity claim.
The government's unwillingness to engage in a meaningful way with this inquiry only serves to heighten the committee's suspicions and concerns about the information sought. As a result, the committee has recommended that the Senate consider a range of procedural and political remedies to resolve the current impasse. The committee has recommended that the Senate insist that Senator Cash be required to explain what documents are covered by the claim of public interest immunity and how she reached the decision to make the claim. The committee reminds the executive of the Senate's right to information and that claims of public interest immunity are just that—claims which are for the Senate to accept or reject. Withholding information from the Senate because it is politically embarrassing or of contestable legality does not accord with good governance and prevents the Senate from fulfilling its scrutiny and accountability functions. These are functions which are vitally important for the democratic process. When serious actions are being undertaken in the name of the Australian people, the Australian people have a right to know what they are, why they are being taken and whether they indeed are necessary. This is not a principle which should be abused.
More broadly, the committee found that the Senate's current procedures for obtaining documents subject to a disputed claim of public interest immunity and for resolving these disputed claims are inadequate. By contrast, the committee heard in detail about the procedures of the New South Wales Legislative Council, where an independent arbiter is able to consider and provide advice on disputed claims of public interest immunity. In that case an independent person has the ability to scrutinise the documents and form a view, as opposed to a situation where those who are not willing to have the documents disclosed merely assert that they are subject to public interest immunity.
Therefore the Legal and Constitutional Affairs References Committee has recommended that the Procedure Committee examine this matter in greater detail. Specifically, the Procedure Committee should consider the New South Wales Legislative Council's model of independent arbitration and how such a process might be applied in the Senate so that the Senate does not continue to be frustrated by disputed claims of public interest immunity in the future, thereby frustrating the Senate's ability to carry out one of its most fundamental functions in a democratic society—that is, making sure that there is proper scrutiny and accountability of executive government on behalf of those people who voted us in.
I would like to give my thanks to the committee secretary and the staff of the secretariat for their hard work in conducting the inquiry and providing the reports, and particularly to those witnesses who gave generously of their expertise and time. This was of great assistance to the considerations of the committee. I think particular thanks are due to the Clerk of the Senate, Dr Rosemary Laing, and the Clerk of the New South Wales Legislative Council, Mr David Blunt. I commend the report to the Senate.
I would like to put a few things on record in relation to this report. That includes the fact that coalition members did not agree with the majority findings of this committee. I wanted to go through some of the issues that were dealt with, some of the reasons we took a very different approach, some of the hypocrisy of the Labor Party in particular on this issue when it comes to the production of documents and also the recklessness of the attitude of the Greens and the Labor Party in relation to such documents and claims of public interest immunity.
We know the recognised grounds for public interest immunity, and the dissenting report goes to this. It includes a range of things: prejudice to legal proceedings and to law enforcement investigations; damage to commercial interests; invasion of privacy; disclosure of executive council or cabinet deliberations; prejudice to national security or defence; and prejudice to Australia's international relations or relations between the Commonwealth and the states.
We heard a lot of evidence in relation to the government's views on this issue, particularly from people like Lieutenant General Angus Campbell. I wanted to go to some of the evidence that he put to the committee as to why public interest immunity was important in this case. I will come later to some of the claims of public interest immunity that were made by the former government which I would submit to the Senate were of a far less serious nature and could only be characterised in those circumstances as being completely political. This goes to the hypocrisy of the Labor Party on this issue. Lieutenant General Campbell outlined the importance of confidentiality in regards to Operation Sovereign Borders when he said:
These documents may reveal the location, capacity, patrol and tactical routines relevant to Navy and Customs vessels and air assets.
He further outlined:
Such information can undermine our tactical advantage over people smugglers who seek to use this information to avoid or trigger detection or to precipitate a search and rescue response. Information of this type can also undermine our ability to protect illegal maritime arrivals from the practices of people smugglers and other serious criminal activities. Finally, it can undermine more generally the effectiveness of Australian assets to maintain maritime security awareness in the broad sense.
Lieutenant General Campbell also said:
Secondly, the kinds of documents that are sought, from my perspective, may enable an exploitation of confidential methodologies and procedures used by Navy and Customs vessels and assets. Information about the arrival of ventures, including the timing of the arrival and the composition of passengers, can be used by people smugglers—and has been used by people smugglers—to provide proof of arrival and the basis of payment, provide a basis for further positive marketing of their business and undermine communication strategies aimed at potential illegal immigrants.
He made a very compelling case, in my view, about the importance of not releasing these documents.
You can understand that the Greens, who have never been and never will be in government, want this. But it is not clear to me why the Labor Party—who were in government recently and apparently aspire to one day be back in government—would want such information in the public realm. Why would a party aspiring to government even consider having documents such as these, which, Lieutenant General Campbell has made crystal clear, undermine our tactical advantage in dealing with people smugglers and put our personnel at risk, put in the public realm? Lieutenant General Campbell goes on:
Finally, these documents may impact upon Australia's relations with foreign states and damage those relationships, undermining the potential for international agreements and cooperative behaviours and also the working relationships necessary between operational agencies in relation to safety of life at sea or generally on-water cooperative operations.
He makes a very compelling case.
When we think about the disgraceful attacks we have seen from the Labor Party on Lieutenant General Campbell, there are a couple of points that need to be made. Lieutenant General Campbell is doing a fine job in the service of the Australian people in the task that he has been asked to do in stopping the boats. I think the attacks are even more disgraceful because Lieutenant General Campbell has made it very clear—publicly on the record and many times in the committee—that it is critically important to the success of Operation Sovereign Borders that the information flow is controlled and that it is not given to the people smugglers. He has made that clear, he said that is his advice to government and the government has followed that advice.
So, when we see these kind of attacks from the Labor Party on Lieutenant General Campbell, we can only assume that they are suggesting that he is not sincere in that belief. I believe he is sincere in that belief, I believe he has given his best professional advice and I believe that best professional advice has been taken by the minister of the day in implementing this important policy. So all of these claims that somehow Lieutenant General Campbell has just been put in a bad position by the government and is somehow being politicised by the government are wrong. It is the Labor Party that has politicised his position. He is doing a fine job. The important point here is that he has given the advice and he has formed the view. This is what he is told the committee—that he has formed the view that this is critical to the success of Operation Sovereign Borders. I, for one, accept his assertions. I, for one, accept his evidence as being truthful and as being completely valid. That is why the minister has taken that advice and that is why we are seeing success. That is one of the reasons we are seeing success.
When Lieutenant General Campbell has appeared before the committee, he has emphasised many times that this is an important aspect. There are a whole range of aspects in relation to Operation Sovereign Borders and why it is working, but the control of information is a critically important point, and the point was made by Lieutenant General Campbell on a number of occasions. I think he has been subjected to some unfair attacks. We have seen some of the ridiculous questioning from the Greens on these issues, including references to fictional, TV programs, which I think is unbecoming for senators.
We heard from the Clerk of the Senate, and I also thank the Clerk for her contribution to this inquiry. She said:
There are parliamentary mechanisms, however, such as the receipt of evidence in camera or the provision of confidential briefings, which balance the right of the body of elected representatives to know against the public interest in that particular information remaining confidential.
Mr Morrison has provided regular briefings. He has also offered confidential briefings to the Labor Party and the Greens. As I understand it, no member of the Greens has taken up that offer. The shadow spokesman from the Greens has been offered a confidential briefing. If you are generally interested in getting the information, wouldn't that be at least a first step to acquaint yourself with the facts? But the Greens have not bothered. So I can only suggest that this is merely political. They are not really interested in the information; they are more interested in making a big deal of the fact that they cannot get the information—even though they have been offered confidential briefings in relation to it. Minister Morrison has provided regular briefings on a number of aspects of this.
I want to touch on the hypocrisy of the Labor Party on this issue in relation to their performance in government when it comes to public interest immunity claims and failure to provide documents. I asked a question of the Clerk on the claims in relation to the 42nd and 43rd parliaments. In evidence to the committee, the Clerk of the Senate stated that 'it was not uncommon' for ministers to refuse orders for the production of documents and:
It is certainly a fact that there is a degree of noncompliance with orders for production of documents.
I would suggest that that may be an understatement. I also asked a question about how many times in the 42nd Parliament the Labor Party did not comply with orders for the production of documents. In the 42nd Parliament there were 63 orders for the production of documents, 33 of which were not complied with. The orders not complied with included documents on the Carbon Pollution Reduction Scheme, the NBN, the Oceanic Viking, the Home Insulation Program, the mako shark, the porbeagle shark, grants for sports facilities, chemotherapy treatment and budget cuts. In the 43rd Parliament there were 53 orders for the production of documents, 26 of which were not complied with. There were nine orders relating to the mining tax and three on live cattle exports. There were orders relating to the NBN, the Home Insulation Program—the list goes on and on.
We have a situation where the Greens, who always call for information, have not taken some of the confidential briefings that were offered to them. We have had a compelling case put by the government, and by Lieutenant General Campbell, as to why this would put people at risk and undermine the effectiveness of this policy. I put it again to Labor senators: what do you have to gain by seeing this information in the public realm? Why would you want to arm the people smugglers with this type of information? It is well recognised that this type of information has often had public interest immunity about it. I commend the dissenting report to the Senate. (Time expired)
I rise to take note of the report of the inquiry by the Legal and Constitutional Affairs References Committee into the claims of public interest immunity made by Ministers Morrison and Cash. Not since the Iraq oil-for-food program inquiry have I been involved in such an extraordinary inquiry where there is nothing but pure front from this government. What a pitiful defence has just been offered. It rests on two parts, the first of which is: 'Have a confidential briefing.' Well, it is the Senate that you are in, and we want the information—it can always be provided in camera if you want the Senate to have it in a confidential way. The second defence is even worse: 'They did it too.' Well, push me! Go on, really! Those are your best two limbs of defence? These claims were made in response to the legitimate orders from this place to produce documents relating to Immigration and Border Protection activities—documents that the government has kept secret, documents that the government has refused to provide, even on a confidential basis, as provided for in our rules and procedures. These are documents which, it was revealed in the inquiry, neither minister had actually read prior to making their claims. That is outrageous in the extreme.
This report is an indictment of those ministers and this government. The fact that we even had to have this inquiry in the first place is a measure of the absolute contempt in which they hold this parliament. It is completely unacceptable for the government to behave in this way. This is backed up by the committee's report. The government's claim of public interest immunity has not been substantiated. There is no evidence on the record that the claim of public interest immunity would succeed. In fact, the report is scathing of the behaviour of the government and Ministers Morrison and Cash. Let me quote directly from the report:
The government's unwillingness to engage in a meaningful way with this inquiry only serves to heighten the committee's suspicion and concerns about the information sought.
And what else does this inquiry find? It finds that the government's secrecy, its lack of transparency and accountability, is so extreme as to require a change in the very procedures of the Senate. That is what the committee concluded—that, when you look at the conduct of these two ministers, you are left in no doubt that we require a change in the way we address this circumstance.
The government has openly flouted the Senate rules and the committee's rightful and legitimate request for information. It denied explicit requests for relevant documents—or even a schedule of those documents—which undermines and frustrates the ability of the committee to examine the merits of the government's claim. Even if you did not want to produce the documents themselves, then you should have produced a schedule of the documents so, at least, the committee could have come to the conclusive view that a proper process was entertained. No such schedule was provided. The only conclusion you can come to is that the government did not go through a proper process. It took the extraordinary step of making a blanket claim and then tried to cover up the fact that that is what it did.
It treated the powers of the Senate, powers bestowed by the Constitution, with shocking disregard. The Minister for Immigration and Border Protection had the gall to tell the committee that he would decide the questions that they considered relevant. The minister deciding relevance, instead of the committee—that is completely absurd. You could only describe it as either ignorance or arrogance. I will leave it for those who read the report to come to the conclusion as to whether it is sheer arrogance or ignorance, the assertion was so stunning.
The advice from the Clerk on this matter could not be clearer, saying it was a notion which they should be disabused of as soon as possible. Stonewalling, misleading, evading, obstructing: that is the only behaviour this government has shown itself capable of and, quite frankly, it is not good enough. The Senate should respond to this circumstance.
The report makes a number of key recommendations that Labor supports. It recommends that the Senate:
… insist that the Minister representing the Minister for Immigration and Border Protection (Senator Cash) be required to explain the process by which—
… considered the documents and reached a decision to claim public interest immunity over them.
Let me dwell on that point, because those opposite should not miss the import of it. The sheer absurdity of this situation for them seems incapable of being grasped. How a minister can claim public interest immunity over a document that they have not actually read is mind-boggling. This is a serious matter, beyond just the matter of the documents in this particular case. At its very heart, at its very core, is this government's culture of secrecy, its lack of accountability, its contempt for this parliament and all that it represents. That is why this committee report also recommends a reform option for the Senate. We asked the Procedure Committee to look at this report and its contents very carefully. And I have full confidence in that committee coming to the same conclusive view that the committee came to, that a change is required here. The blatant attempt not to produce documents needs to be addressed. The sheer hypocrisy of this government in hiding and continuing to display secrecy is shocking. The status quo will not do, not when it comes to this government, which has adopted dissembling as the default policy position.
The report should remain and continue to be a stark reminder to this government that it is not above what the Senate can ask it to do. It is not above the ability of parliamentarians in this place to require the production of documents. But, more than that, if you want to claim public interest immunity on those documents, then demonstrate that you have undertaken a proper process in coming to that conclusive view. Public interest immunity can be claimed, but what this inquiry shows is that this government ignored all the rules. It was flagrant in its breach of them.
As the committee has noted, it is not the place of ministers to determine matters of public interest immunity; it is a matter for the parliament. I quote:
… the committee reiterates in the strongest terms the Senate's right to information and emphasises that a claim of public interest immunity made by a minister remains just that: merely a claim. It is for the Senate to consider and accept or reject each claim having regard to the basis upon which it is made.
It is time that the ministers in this government undertook proper processes. If they are going to claim public interest immunity, then they should do it according to the rules and demonstrate how they are going to undertake that process, not simply make a blanket claim for public interest immunity.
Senator Seselja interjecting—
Those opposite continue to interject. I listened to you in silence.
This inquiry and all the other myriad inquiries into the border protection issue is a sad reflection on both the Labor Party and the Greens. We expect it from the Greens; we do not expect it from the Labor Party, which had six years to address these issues but failed completely. I regret to have to say this, but it is clear that the Labor Party and the Greens will take every action to destroy the efforts of this government in protecting our borders. The Labor Party showed themselves to be completely incapable of protecting the borders. There is now a government that can do it. The Labor Party do not like being shown up for the inefficient incompetents they were in government and so they will do everything to make sure this real, positive policy for Australia fails. They are on the side of the criminals who run the people-smuggling trade.
Look at all the inquiries and you will see it is the same. Labor cannot get over the fact that we are addressing the problem they created and could not deal with. Regrettably, the time for me to speak is short. I cannot believe the absolute hypocrisy of the Labor Party in talking about orders that were complied with. I am sure my colleague Senator Seselja, in his speech, pointed out that, in the 43rd Parliament, 53 orders of production were made against the Labor government, 26 were not complied with and seven were only partially complied with. In the 42nd parliament, similarly, 63 orders were made and 33 not complied with. And they have the hide to come in here and carry on as Senator Ludwig has just done. It really demonstrates the hypocrisy of the Australian Labor Party currently.
Senator Seselja also went through the more substantive reasons that it is the dissenting report which should be adopted by the Senate. The majority report is just another one of these political farces. The Labor Party and the Greens have the numbers. They could have written their majority report before the inquiry even started, because it was all predetermined and it is just a game—part of a Labor-Greens alliance that will do anything to destroy a policy that is actually working and correcting the mess the Labor Party made of our borders. I seek leave to continue my remarks later.
Leave granted; debate adjourned.