Senate debates

Monday, 18 October 2021

Answers to Questions on Notice

Question No. 3985

3:20 pm

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | | Hansard source

Under standing order 74(5)(a), I rise to seek an explanation from the Minister representing the Prime Minister as to why question No. 3985 has not been answered.

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Minister for Finance) Share this | | Hansard source

Senator Patrick, through the chair, I don't have specifics in relation to that question. I appreciate that you're asking about one particular question, but I've not been able to get a specific update. I draw your attention to the broader points that I made before, albeit in relation to a much more general question from Senator Ayres. But I respect that you are asking about one particular question, and I will follow that up upon leaving the chamber.

3:21 pm

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | | Hansard source

I move:

That the Senate take note of the minister's failure to provide either an answer or an explanation.

I'm not intending to cluster a whole range of questions. For every question I put on notice, I read the answer when it comes back. They're provided to me by my staff, and I read them and consider them. This is an important question, and I'll run through it. It deals with two matters. Both matters relate to costs in relation to AAT freedom of information matters, where the Commonwealth sought to uphold what were later found to be erroneous and cavalier FOI decisions. One of them relates to the Hawkei audit conducted by the Auditor-General in 2018 and the fact that the Auditor was censored by the Attorney-General, who issued an Auditor-General Act section 37 certificate to censor information provided to the parliament. Of course, Deputy President Britten-Jones found that the Attorney-General was simply wrong in issuing that certificate. I've asked three or four times about the cost to the taxpayer of the government resisting the release of information that should have been made available in public.

The second matter relates to the costs associated with national cabinet. The question was about the Australian Government Solicitor's estimate, when it was engaged, of the costs to the taxpayer and whether or not invoices have been finalised. I actually have had an answer through the estimates process: that the national cabinet matter has cost $107,000 to date. A hundred and seven thousand dollars went to the AGS to try to defend that particular matter—and I'll come to their performance in relation to that. It follows another FOI answer I got the other day relating to a matter on foot where the government has spent $250,000 opposing access to what effectively is one number. I wonder what the Hawkei matter will cost. I've asked on several occasions. On several occasions the answer that has come back is that the invoices haven't been finalised. I will be raising that with the AGS when I see them at estimates. That particular matter is over a year old, so it's hard to believe they haven't properly invoiced that matter. I think the tally in relation to the government opposing my access under FOI must be coming up to $1 million. That's shameful. That's a guess, but we know it's at least $350,000. I haven't added up all the other wins that I've had and the costs associated with them. Maybe I should do that. This is real money being used to oppose transparency.

I will just go to the decision on national cabinet. I know Senator Ayres talked about this. Obviously, the history of that matter is that, in the face of a pandemic, the Prime Minister called together all of the first ministers—the premiers and territory chief ministers—to conduct regular meetings. No-one has any objection to that. It's actually quite a sensible thing to do. The offensive thing that was done was that the Prime Minister, consistent with his secrecy obsession, decided to pull the wool over the Australian public's eyes and suggest that it was a committee of the cabinet.

Of course, Justice White examined this and found that the national cabinet wasn't even established as a committee of the federal cabinet; it was actually established by COAG. Justice White found that there's no cabinet solidarity and no collective responsibility in the national cabinet. Justice White pointed out there is no one single parliament to which the national cabinet is responsible. In fact, it's responsible to a whole range of different parliaments and, therefore, can't be a cabinet. It's interesting. If people read the decision, they will see that, along the way, Justice White was quite frustrated with the approach of the Commonwealth and the way in which it handled the matter, not putting primary evidence on the record. His view on evidence received from Mr Gaetjens and Ms McGregor was that it couldn't be relied upon. In fact, it was found that the Department of the Prime Minister and Cabinet advanced some facts that turned out not to be facts. On affidavit, they swore certain facts that were not true, and counsel for the Secretary of the Department of the Prime Minister and Cabinet had to concede during the proceedings that in fact they were wrong.

That disturbs me not just because someone put on an affidavit something that is not true but because this is the premier department in our government. Everyone's supposed to look at Prime Minister and Cabinet and say, 'They set the example.' I am greatly disappointed by the way in which that matter was conducted. Senator Ayres is right. There's no room to manoeuvre in relation to that very solid judgement by Justice White. There is no appeal. You can't appeal what he put in his judgement, because it is legally correct. Yet one of the astounding things in the affidavit of Mr Gaetjens to the tribunal at some stage was that it said, 'Don't worry about all these judicial precedents on what national cabinet is, because we're the authority on it.' It really bothers me that the Department of the Prime Minister and Cabinet think that words in a statute—such as 'cabinet' or 'committee of the cabinet'—get defined by the Prime Minister and not a judicial officer. That's not how it works. Sure, in this place, we can provide clarity, but, if there's any question as to the meaning of a word in a statute, that is clearly in the purview of the judiciary. That, not a department, is clearly the decision-making place. So it is very surprising that such a statement was advanced in the context of those proceedings.

In response to the trashing—I think that is what Senator Ayres said—of the argument of the Commonwealth, what have they done?

They've introduced a new law, so there is more cost associated with the taxpayer to try to keep matters that are not cabinet matters secret. They've introduced a new law which, as Senator Ayres correctly said, has no friends. I went to the committee hearing and found there were no friends of that bill other than the Department of the Prime Minister and Cabinet. Professor Twomey, Mr Geoffrey Watson SC and whoever appeared before the committee just rejected that piece of proposed legislation. We then got Senator Rennick committing to cross the floor on that one. Good on him for doing that, for standing up for what is right. Hopefully we'll see some other people who have some loyalty to the courts do exactly the same thing if the government dares to even bring it into this place.

On the back of that, interestingly enough, I spoke to Senator Gallagher the other day, in the COVID committee, where Prime Minister and Cabinet had advanced a public interest immunity claim on the basis of national cabinet, about whether or not those documents had been returned to the COVID committee. The answer is, no, they haven't. I know she is looking at that now, but imagine that. We've had a judicial officer rule that the national cabinet is not a cabinet, and yet we still see the government hanging onto that and denying information to Senator Gallagher's committee. That's just extraordinary.

Senator O'Neill, I actually think you're wrong. It's not that they're a rule unto themselves; it's actually an affront to the rule of law. Under the separation of powers in our Constitution, we have a parliament, an executive and a judiciary. We must respect the boundaries. To have a judicial member state that it is not a national cabinet and then to have the department say, 'We're not going to comply with that,' is hugely problematic. I know you're really in support of me, Senator O'Neill, but you haven't properly expressed the gravity of this situation. It's an affront to the way in which our Constitution is set out. That's a problem.

I'm simply asking in my question: What was the cost? What was the estimate when the Commonwealth went into the proceedings? People may not know this but, when you engage a lawyer to conduct proceedings on your behalf, you're entitled to get an estimate of the costs. I asked what that estimate was, I asked what the real cost is, and I asked whether or not the answer I was going to get would be the final answer.

I'll move to the other part of the question, which related to the Hawkei audit. As I said, this is a really strange one. For the first time ever, the Attorney-General censored an Auditor-General's report. The Auditor-General, in every audit he does, considers what he's putting in his reports, to make sure they don't include information that damages national security or international relations or any commercial interests. He does that day in and day out, and yet, three years ago, the Auditor-General tabled a report where he was told to censor some information, because somehow the then Attorney-General, Mr Porter, knew better. The JCPAA did an inquiry into this and had a look at the whole matter. That's what spurred me to seek access to that particular document under FOI. Thankfully it went from the department, who simply did the tick and flick on, 'This is all confidential,' to the Information Commissioner, who flicked it on to the AAT straightaway, because she recognised the complexity of the issue. But the matter then was heard by the AAT, and the AAT found that pretty much all of the redactions that were made by the Attorney-General were in fact wrong. They should never have been redacted. To be accurate, there were a couple of numbers that were redacted that I agreed might have been sensitive from a commercial perspective and I did not contest them in the proceedings.

One wonders how much that cost. That matter concluded in 2020. It concluded a year ago, yet there has been no answer to this parliament. Despite my asking on three occasions what the cost of that was, there has been no answer to this parliament. I think people are entitled to know. How much does the government spend on falsely defending FOI claims? I'm sure I'm not the only one who goes through this. I think the government are entitled to know the cost of the Prime Minister's secrecy obsession. Just as we like to know how much drug addiction or alcohol addiction costs, I want to understand what the secrecy addiction of the Prime Minister costs the Australian taxpayer, and it's troubling that I simply can't get an answer. Whilst this question is more than 30 days old, it's the third time I've asked it. Each time I asked it—perhaps foolishly, I asked for the total cost—a very sneaky answer came back saying, 'Well, we haven't received all the invoices.' So I finally changed the question and asked: 'What's the total of invoices to date then?'

The government are just not answering these questions. They've got to be open and transparent to the Australian taxpayer about the cost of these matters. How much are they costing? I don't know. Maybe this particular matter was a favour for Thales and they've paid him back through some blind trust; I don't know. I take that back; I'm sure Thales didn't do that, but the proposition lies. I just don't understand why people are trying to hide the value of all of this and I think the minister should see why this question hasn't been answered. (Time expired)

Question agreed to.