Senate debates

Monday, 22 November 2021

Answers to Questions on Notice

Question No. 3985

3:00 pm

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

Pursuant to standing order 74(5)(a), I am seeking an explanation from the Minister representing the Prime Minister as to why my question No. 3985, relating to the costs of national cabinet, has not been answered within the required time frame; indeed, this question has been on the Notice Paper since August.

3:01 pm

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

I understand answers will be provided as soon as they can be made available. Finalisation of those is being undertaken. I hope that they can be brought to the chamber and will be brought to the chamber as soon as that is possible.

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

I move:

That the Senate take note of the minister's answer to this question.

Again, we find ourselves in a situation where we are not getting answers back from the executive in response to questions that are relevant to our constituents. In this particular case, what I was seeking by way of question No. 3985 was an answer by the Prime Minister as to how much money was spent by the Commonwealth defending the erroneous claim that national cabinet was, in fact, a committee of the cabinet. I would have thought that would be a relatively simple answer to go and get, to look inside the accounting system to find out how much the Australian Government Solicitor had been invoiced but, no, we still don't have an answer.

There is a second part to the question that relates to a matter that was brought against the Prime Minister and cabinet over the censoring by the former Attorney-General Christian Porter of an Auditor-General's report. That matter concluded more than 12 months ago, so I asked the government to please provide cost information in relation to a matter that was settled more than a year ago. There was no answer and that is somewhat inexcusable. It is with regret I have to stand and ask to take note of the Prime Minister's failure to provide the answer to these questions.

As senators will be aware, the matter of national cabinet involved a comprehensive defeat for the Department of Prime Minister and Cabinet, especially for its secretary, Mr Philip Gaetjens, and the head of the cabinet division, Ms Leonie McGregor, who were acting as the Prime Minister's agents in this matter. In his decision on 5 August 2021, Federal Court Justice White determined that under the Australian law national cabinet is not a committee of the federal cabinet. The documents that I sought were not subject to any blanket exemption under the FOI Act. In his decision, Justice White was absolutely scathing of Mr Gaetjens and Ms McGregor, finding that their evidence was wrong in fact and in argument. Among other things, he observed their evidence 'tended to be generalised and conclusionary in form'. I'm quoting from the judgement. 'In some respects the evidence of each was inconsistent with documentary evidence and seemed to assume the truth of the matter to be decided by the tribunal'—that is, whether or not national cabinet is a committee of the cabinet. 'In some respects both the respondents, Mr Gaetjens and Ms McGregor, expressed opinions about the effect of the disclosure of the minutes on a view of their content, which is not borne out by an examination of the documents. I do not accept all their evidence.'

His honour's decision was widely applauded by eminent legal authorities for its comprehensiveness and its definitive reasoning. Yet, in what is an absolute defiance of judicial decision-making, the Prime Minister has refused to accept the independent umpire's ruling. Rather than appeal Justice White's decision to the Full Federal Court, the government instead introduced the COAG Legislation Amendment Bill 2021, with the object of imposing a blanket prohibition on the FOI release of any cabinet records. That bill, we know, is going nowhere fast. But it's still worth noting some of the evidence that was presented to the Senate finance and public administration committee inquiry that considered its provisions.

This bill is quite without friends. Apart from the submission of the Prime Minister's own department, all submissions opposed it or were highly critical. That included submissions and evidence given by eminent legal and constitutional authorities. Professor Anne Twomey condemned the legislation in emphatic terms, accusing the government of trying to legislate things that simply were not true. She said:

…it's just a mess. It shows disrespect for the people, for the courts and for everyone to go around asserting in legislation things that aren't true… It's, frankly, bizarre legislation. Why would you assert something that's not true? Why would you say in legislation that a cat is a dog or vice versa?

The Australian Human Rights Commission President, Emeritus Professor Rosalind Croucher, expressed concern that the bill will increase secrecy across 15 different acts, with the changes to the FOI Act being of particular concern. Professor Croucher rightly told the committee:

Australians should be able to seek information about the nature of the decisions made by their representatives. This is even more important in times of emergency, when governments are provided with extraordinary powers that can affect the lives and rights of Australians in significant ways.

Professor Croucher warned that the proposed changes would involve:

…a permanent change to confidentiality rules over public policy. It's important that emergency situations do not become broad justification for unnecessary increases in executive power to the detriment of democracy.

Mr Geoffrey Watson SC, a highly distinguished barrister, who represented me in the AAT, bluntly warned that transparency would be crushed by this legislation. None of the submissions of these distinguished authorities and persons gave favour to the bill that was introduced.

Significantly, Mr Gaetjens declined to appear before the committee. The three officials sent in his place—Ms Leonie McGregor, First Assistant Secretary, Cabinet Division; Ms Lee Steel, First Assistant Secretary, Intergovernmental Relations and Reform; and Mr John Reid, First Assistant Secretary, Government Division—gave a performance utterly unworthy of the Commonwealth department that sits at the very centre of Australian government. Institutional decline and politicisation of the top ranks of the Public Service were all too evident in their evasive and unsatisfactory evidence.

Where are we today? Well, the government's bill is stalled in the Senate. The Department of the Prime Minister and Cabinet are still refusing to issue documents under FOI in defiance of Federal Court Justice Richard White's decision. In response to a further application that I made for access to documents, a PM&C officer in charge of national cabinet affairs, Acting Assistant Secretary Angie Mackenzie, has informed me that despite Justice White's ruling the department remains of the view that 'national cabinet is a committee of the cabinet for the purposes of the FOI Act and therefore national cabinet documents are exempt from disclosure under section 34 of the FOI Act. Just so it's all very clear: the Prime Minister is absolutely obsessed with secrecy. Justice White made it very, very clear in his ruling that the national cabinet is not a committee of the cabinet and that that cannot be taken to be the statutory meaning.

Here we have a judge of the Federal Court making it very clear that it doesn't fit within the statutory meaning, yet we have an official, Ms Angie McKenzie—clearly politicised—a member of the Public Service, saying: 'Sorry, Justice White is wrong. Justice White is not correct on a statutory interpretation.' Let me tell everyone about the way in which a Prime Minister can influence a statutory interpretation: the only way they can do that is when they frame up a bill to bring to this parliament. Maybe during a second reading speech they can give some measure of what the meaning might actually be in respect of an expression in a bill.

We can't get to the point with the FOI Act, which has been in place since 1982, where a judgement is made that doesn't favour what the Prime Minister thinks and, suddenly, he just says, 'No, I'm going to make up my own statutory meanings despite a justice of the Federal Court suggesting that it's clearly incorrect.' That's what we have happening here; that's what we have happening in this place. In response to the AAT matter, they've introduced—and, again, my question goes to how much money was spent trying to defend this. It was utterly defeated; nonetheless, we're entitled to know what the cost was. There's no answer to that question.

That's important: on the FOI which I made recently, I've had this bogus decision come back from clearly incompetent public servants. I don't stand up here and have a go at public servants without first giving considerable thought, but I think it is fair when a public servant seeks to suggest that they can overturn a judge's view on what a word means in the statutes. That's the point at which you say, 'Something is really broken on that side.'

We can look at all the things that have been happening with the Prime Minister: saying that blind trusts are okay and that we're not going to refer it to the House Committee of Privileges because it seems to be okay. Or, 'I'm going to tell a story that's different to how the French president might have heard those words.' He came out saying at the start of the submarine announcement that this wasn't about nonperformace. But he got a bit of pressure on him from the French president and he said, 'Well, okay, you weren't doing your job well enough.' He changes his tune, almost as though he thinks he's living in a 20-minute world where he can say what he likes and then all of the evidence disappears.

But we have the situation here with this particular matter where we've gone through a court process and we don't know what the updated costs are because I'm not getting answers from the Prime Minister to what is a reasonable question about cost. We're going to see a situation, because I've now gone back to the Information Commissioner for the second time around and said, 'This is wrong, except this time I don't want it referred to the AAT—I want it referred to the Federal Court.' Who knows who might get the docket list for my case? It might end up being Justice White, remaking his own decision. We'll then see whether or not the Prime Minister ignores that.

To suggest that just because this matter was heard in the AAT it doesn't have a binding force upon the government! This matter was shifted to the Information Commissioner, and the Information Commissioner made the determination that it ought to be handled by the AAT in the interests of execution of the FOI Act. When it got to the AAT everyone recognised the significance of it. The AAT said: 'This is a matter that does need to go to a deputy president. We want a judicial member to sit on this and hear this particular matter.' The Commonwealth goes from a position of saying, 'No, no—there's nothing to see here,' to suddenly appointing a QC to look after the matter. So we have QCs and SCs, as well as a judicial officer presiding, to come to a very solid determination that national cabinet is not a committee of cabinet, and the Prime Minister does not accept that. How much was wasted on that? You might as well have just ignored the whole FOI process and refused to give me anything. You've put the taxpayers to great expense to hear what the independent umpire says, and then you say, 'I'm not going to listen to what Justice White said.' That's where you're at. Yet you won't tell me how much that cost. That's the burden of the question that I've asked. I think the Australian public are entitled to know that, Senator Birmingham. You represent the Prime Minister in this chamber, so you need to scurry away, go and knock on his door and get the answer for me.

There's another answer to another question that has not been answered, also to do with national cabinet, and tomorrow I will be seeking an explanation as to why that one hasn't been answered. So you might want to think about going for a bit of a walk after your duty has finished here in the chamber, Minister, so that you can get these answers. The Australian public is entitled to know. We ask these questions expecting timely responses, and we're entitled to them. We don't ask these questions for ourselves; we ask them on behalf of our constituents.

Question agreed to.