Wednesday, 12 May 2021
By letter dated 7 May 2021, Senators Gallacher and Patrick have raised a matter of privilege alleging interference with the Economics References Committee inquiry into Australia's sovereign naval shipbuilding capability.
The letter outlines numerous occasions on which the Department of Defence, the secretary of Defence and the former Minister for Defence have declined or refused to provide documents to the committee in response to committee requests and Senate orders. Senators Gallacher and Patrick contend that 'the committee's ability to progress the inquiry has been severely and deliberately impeded by the department'.
The letter raises three grounds on which the conduct complained of may amount to an improper interference with the functions of the Senate and should be investigated as a possible contempt. They are:
Where a matter of privilege is raised, my role is to consider whether a motion to refer the matter to the Privileges Committee should have precedence in debate. In doing so, I am constrained from considering the merits of the matter. Instead, I am bound to have regard only to the two criteria in privilege resolution 4.
The first of these criteria seeks to reserve the Senate's contempt powers for matters involving substantial obstruction to Senate and committee processes, or to the performance of senators' duties as senators. It is clear that conduct of the kind claimed in the letter could substantially obstruct the references committee in its inquiry and frustrate the orders of the Senate requiring the production of the documents to the committee. In that sense, the criterion is met. Whether that conduct as outlined warrants investigation as a possible contempt is not a question for me but for the Senate.
One matter for senators to note in making that assessment is that, in disputes about the production of documents, the Senate has generally preferred 'political' or 'procedural' remedies—such as censure motions or debating explanations for noncompliance—rather than seeking to enforce its orders through its contempt jurisdiction.
Nevertheless, Odgers' Australian Senate Practice makes it clear that:
The principal remedy which the Senate may seek against an executive refusal to provide information or documents in response to a requirement of the Senate or a committee is to use its power to impose a penalty of imprisonment or a fine for contempt, in accordance with the Parliamentary Privileges Act 1987.
The passage goes on to note, however:
… practical difficulties involved in the use of this power—
the contempt power—
particularly the probable inability of the Senate to punish a minister who is a member of the House of Representatives, and the unfairness of imposing a penalty on a public servant who acts on the directions of a minister.
I specifically highlight this latter issue and raise this caution about the treatment of public servants, because Senators Gallacher and Patrick seek to steer any possible contempt investigation to consider the role of the secretary of the department.
The second criterion—regard for the existence of any other remedy—recognises that the Senate is generally reluctant to deal with conduct as a contempt where another, more appropriate, avenue for redress is available. Only the Senate can remedy interference in the proceedings of its committees or conduct frustrating its own orders, so in my view this criterion is also met. Whether that remedy should take the form of a Privileges Committee inquiry, or some other form if any, is a matter for the Senate itself.
I table the correspondence and call Senator Patrick to give a notice of motion in respect of the matter.
I'm going to reserve my right to lodge the motion. I seek leave to make a short statement of no more than three minutes.
I thank the Senate and I thank you, Mr President. I will go very briefly to the circumstances. In September 2019 this Senate referred an inquiry into Australia's sovereign naval shipbuilding capability to the Senate Standing Committees on Economics. In February 2020 the committee requested assistance from Defence, looking for documents describing what Naval Group, BAE, Austal and Luerssen were offering to Australian industry in relation to their bids for work in the naval shipbuilding program. The committee wants to compare what was promised by the various different entities and what was actually contracted by Defence. The committee has agreed to accept those documents in confidence. The Department of Defence refused outright to provide the documents in May last year. The Senate agreed to an order for the production of those documents. The minister sought a PII, a public interest immunity claim, but the Senate refused that claim.
I'll go very quickly to the issue raised by the President in relation to the Secretary of the Department of Defence. An order for the production of documents has the same standing as a subpoena from a court. Maybe the Privileges Committee needs to consider whether or not it would be appropriate for a minister to refuse to allow an official to respond to a subpoena from a court. I refer to the High Court case of Pirrie v McFarlane in 1925, where Chief Justice Knox made it very clear that the law of the Commonwealth requires soldiers—and presumably officials—to obey not any command but any lawful command.
The Senate has the final say on this and, with indulgence, I'll read a short statement from Erskine May:
The Crown of these realms is hereditary, being subject, however, to special limitations by Parliament; and the kings or queens have ever enjoyed various prerogatives, by prescription, custom, and law, which assign to them the chief place in Parliament, and the sole executive power. But as the collective Parliament is the supreme legislature, the right of succession and the prerogatives of the Crown itself are subject to limitations and change by the consent and authority of the King or Queen for the time being, and the three estates of the realm in Parliament assembled. To the changes that have been effected, at different times, in the legal succession to the Crown, it is needless to refer, as the Revolution of 1688 is a sufficient example. The power of Parliament over the Crown is distinctly affirmed by the statute law, and recognized as an important principle of the constitution.
That is given effect through section 49 of our Constitution. The Senate is supreme in this matter. It's an important matter. We need to be able to get on with our work.