Wednesday, 21 March 2018
Australian Building and Construction Commissioner
At the request of Senator Cameron, I move:
That the Senate—
(a) notes the claim of public interest immunity grounded on legal professional privilege made by the Minister for Jobs and Innovation in correspondence of 15 February 2018 to the Chair of the Education and Employment Legislation Committee in relation to questions taken on notice by the Minister, the former Department of Employment and the Australian Building and Construction Commission during the 2017-18 supplementary Budget estimates, in relation to the following matters:
(i) advice received by the Minister pertaining to the character of the conduct of the former Australian Building and Construction Commissioner relating to his contravention of section 503 of the Fair Work Act 2009 (Question No. EMSQ17- 004346),
(ii) documents held by the former Department of Employment in relation to litigation involving the former Australian Building and Construction Commissioner concerning a contravention of section 503 of the Fair Work Act 2009 (Question No. EMSQ17-004483),
(iii) details of telephone conversations between the former Acting Australian Building and Construction Commissioner and the Chief Counsel, Workplace Relations Legal, Department of Employment (Question Nos EMSQ17-004483 and EMSQ17-004485),
(iv) documents and details of communications between the Australian Building and Construction Commission and the Minister and her office relating to a claim for legal indemnity made by the former Australian Building and Construction Commissioner (Question No. EMSQ17-004486),
(v) issues other than legal advice canvassed in telephone conversations between the former Acting Australian Building and Construction Commissioner (Question No. EMSQ17-004494), and
(vi) discussions between the former Acting Australian Building and Construction Commissioner and the former Department of Employment pertaining to potential claims for public interest immunity to be made during the course of 2017-18 supplementary Budget estimates (Question Nos EMSQ17-004484 and EMSQ17-004495);
(b) notes that, on 28 February 2018, the Education and Employment Legislation Committee accepted the Minister's claim of public interest immunity;
(c) notes that it has never been accepted in the Senate, nor in any comparable representative assembly, that legal professional privilege provides grounds for a refusal of information in a parliamentary forum;
(d) notes the resolution of the Senate of 11 October 2016, in which, among other things, the Senate affirmed the following principles:
(i) there is no general public interest immunity that allows ministers or departments to withhold legal advice, but rather that each claim of public interest immunity is assessable by the Senate and that information of the particular potential harm should be provided to the Senate to make this assessment,
(ii) while the Senate may permit claims of public interest immunity to be advanced, it reserves the right to determine whether a particular claim will be accepted, and
(iii) Australian courts have acknowledged that for the Parliament to undertake its duties it must be able to require the Executive to produce documents, and that the justification for legal professional privilege does not apply;
(e) notes that the litigation in Federal Court matter No. NSD 1379 of 2016, involving the former Australian Building and Construction Commissioner has concluded; and
(f) does not accept the public interest immunity claim made by the Minister for Jobs and Innovation in relation to the matters referred to in paragraph (a), and orders that there be laid on the table by the Minister for Jobs and Innovation, by not later than the conclusion of question time on 26 March 2018, the advice, documents and details of discussions, communications and conversations requested in the questions taken on notice at the 2017-18 Supplementary Budget estimates by the Minister, the former Department of Employment and the Australian Building and Construction Commission.
The government does not support this motion, which is nothing but a continuation of the attacks against the former Australian Building and Construction Commissioner. The government made a claim of public interest immunity covering matters related to legal advice concerning the CFMEU's court proceedings against the former commissioner on 15 February which was accepted by the Senate's Education and Employment Legislation Committee. Governments of both persuasions have not made such information publicly available as it is important that governments have access to frank and honest legal advice.
Whilst I'm not indicating anything in relation to the motives of the opposition, I read from a judicial statement:
… in performing its accountability function, the Legislative Council may require access to legal advice on the basis of which the Executive acted, or purported to act, as access to such advice might well be relevant in order to make an informed assessment of the justification for the Executive decision. That access was reasonably necessary for the exercise by the Legislative Council of its functions. What, if any, access should in fact occur was a matter "of the occasion and of the manner" of the exercise of a power, and not of the existence of the power.
Question agreed to.