Senate debates

Tuesday, 30 November 2021


Privileges Committee; Report

5:12 pm

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

I rise to present the 181st report of the Standing Committee of Privileges, regarding a possible contempt by the Commissioner of Taxation. I move:

That the report be adopted.

The report relates to the committee's inquiry into whether the Commissioner of Taxation committed a contempt by failing to comply with an order of the Senate requiring the production of documents related to JobKeeper payments. Specifically, the Senate required the committee to consider whether the commissioner, without reasonable excuse, disobeyed a lawful order of the Senate, failed to produce documents in accordance with an order or improperly interfered with the power of the Senate to obtain information.

The committee sought and considered submissions provided by Senator Patrick, Minister Birmingham, as the Minister representing the Treasurer, and the commissioner. As senators will recall, the commissioner raised a public interest immunity claim in response to the Senate's original order for information about JobKeeper payments. The Senate explicitly rejected that claim and ordered the commissioner to comply fully with the order. The Treasurer responded to this order, raising a public interest immunity claim. The Treasurer's claim did not identify any new basis for resisting production of the information beyond the grounds already raised by the commissioner and rejected by the Senate.

I'd like to put on the record now some words regarding the criteria for a finding of contempt. The first criterion the committee must consider under privilege resolution 3 is whether the conduct of the Commissioner of Taxation could amount to a substantial obstruction of the Senate performing its functions. In determining whether the Senate has been obstructed, the committee is not required to evaluate the public interest claims raised by the commissioner and the Treasurer. That is ultimately a matter for the Senate. For the purposes of this inquiry, it is sufficient to note that the inquiry powers of the houses are essential to support the houses obtaining the information they require to effectively perform their functions. It's clear that the Senate being unable to obtain necessary information could substantially obstruct the performance of its accountability functions.

The second criterion the committee is required to consider is whether there is another, more appropriate, remedy available, other than the Senate's power to punish contempts. The Senate accepts that this power is undoubtedly a remedy available where a Senate order is not complied with. However, as a matter of practice, the Senate has generally pursued political or procedural remedies rather than immediately having recourse to the contempt power.

The commissioner suggested in his submission that it may be possible to supply information about JobKeeper recipients in a manner which provides sufficient detail to enable the Senate to fulfil its accountability function but gives due regard to maintaining the privacy of taxpayer information. The committee's view is that this suggests there is a genuine prospect of resolving this matter through the usual approach of negotiation, rather than through the exercise of the contempt powers of the Senate.

The final criterion the committee is required to consider relates to culpability and, in particular, whether the commissioner had a reasonable excuse for conduct which might otherwise amount to a contempt. The commissioner acknowledged the power of a Senate order to require the production of the JobKeeper information but submitted that there was a significant public interest in preserving the confidentiality of information collected by taxation officers for the purpose of administering tax laws. He also submitted that public disclosure of the information may cause commercial harm to the entities identified.

Now to the committee's findings. While the committee will be circumspect about recommending that the Senate make a finding of contempt, it stands ready to do so in cases involving intractable obstruction of the Senate. In this case, however, an independent statutory officer has advanced public interest grounds for withholding information which the committee accepts reflect genuine concerns related to the administration of the taxation system, rather than an attempt to shield government policies or administration from effective scrutiny.

In his submission to the committee, the commissioner has also proposed a potentially acceptable approach to providing the information the Senate requires. In these circumstances, it would be precipitous to have recourse to the ultimate remedies at the Senate's disposal to protect the integrity of its operations. Noting the commissioner's proposal for resolving this matter, the committee considered that the Senate should have the opportunity to determine whether this would result in the Senate obtaining adequate information regarding expenditure under the JobKeeper program.

While the committee is confident the commissioner will meet his responsibilities to comply with the Senate order, in the event that he does not provide the required information in a manner which is acceptable to the Senate, it is open to the Senate to refer this matter back to the committee for further consideration. Accordingly, the committee has recommended that no contempt be found in relation to the matters referred. The committee noted that the Treasurer's intervention served to delay an acceptable resolution of this matter. A sounder approach, in circumstances where an order is directed at an independent statutory officer, would have been to allow time for that officer to engage in negotiations with the proponents of the Senate order to provide the information in a manner which addressed any legitimate public interest concerns.

I commend the report to the Senate but, before I conclude, I note that the committee had hoped to be in a position to provide a report on the earlier matter referred to it concerning possible obstruction of the naval shipbuilding inquiry of the Senate Economics References Committee. Negotiations for provision of the documents required by that committee are occurring, but they have been, to say the least, protracted. In this regard, I would caution officials that further delay in this matter will, in and of itself, be considered a substantial obstruction of the Economics References Committee.

Question agreed to.