Tuesday, 30 November 2021
Answers to Questions on Notice
Question No. 3985
I thank Senator Patrick for his question. I have had a few things on of late. I don't have to hand, since getting notice that Senator Patrick was going to make this inquiry, an update on the status of that answer. As I've noted in this place before, the government continues to process through questions on notice in this chamber, as well as those taken through Senate estimates and committee processes. There are unparalleled numbers of questions to process answers to. I apologise for delays that occur from time to time in some answers making their way to the chamber. I acknowledge the hard work undertaken by many officials and others to provide the record numbers of answers to questions we have managed to facilitate through this parliament.
That the Senate take note of the minister's answer.
It's really just a repeat of the answer we received last week. I inform the minister that I did advise his office this morning that I was seeking the answer. I did that very early. I rose last week to seek an explanation expressing my concern about my question relating to the national cabinet. There's a bit of irony in what the minister said, because part 2 of this question is one I've had to ask three times. Three times I've had to ask the question because in subsequent answers the Prime Minister has simply said 'no charges have been levied at this point'. That relates to a matter that was before the AAT not this year but last year, where the Prime Minister also lost an FOI. I understand there may be lots of questions but this is one that has been asked for a third time.
The question I am seeking an answer on relates to the cost of proceedings in the AAT and how much the Prime Minister is spending trying to defend untenable FOI exemption positions. I don't understand why the Prime Minister's staff can't just go to the accounting system and get the answer for me.
In moving a take note motion last time, I expressed a serious concern regarding a recent decision by a senior official in the Department of Prime Minister and Cabinet to override Justice White's decision that national cabinet is not a committee of the cabinet. That's right: a bureaucrat overturned a judge of the Federal Court on the meaning of a statutory expression.
Since becoming a senator I have submitted about 200 FOIs. If I had to guess, it's probably on the north side of 200. I've not liked some of the decisions I've received, but, in those cases, I've appealed them.
Thank you, Senator Scarr. I think the score is about 14-2, and that includes some state ones. I've been relatively successful in the appeals. But that's the approach I normally take: if I don't like a decision, I appeal it
It wasn't until last week that I stood up in the chamber and said something about a decision-maker in respect of the decision I had received. The difference in this instance is the fact that a bureaucrat thought it in their remit to overturn a judicial officer in favour of the opinion and interests of her political master. That occurred either under an inappropriate direction—because FOI decision-makers make independent decisions—or because the decision-maker was trimming her sails to the political winds, in her own career interest and ahead of her Public Service obligation.
PM&C didn't like what I had to say. The secretary of PM&C, Mr Philip Gaetjens, has written to the President of the Senate, complaining that I sought to hold a public official to account. In that regard, I seek leave to table the letter that was sent to the President in relation to that. I do so in fairness, because there is criticism of me in this letter. I have run this by Senator Smith and the other leaders prior to this.
Mr Gaetjens didn't like the fact that I suggested his employee 'breached her obligation' or was 'directed to make a decision contrary to law'. He did not like that I spoke of her actions as being incompetent or abhorrent or politicised. Until yesterday, I would have accepted the comment that the official wasn't directed to make the decision and I would have withdrawn my remarks about Ms McKenzie being 'directed to make a decision contrary to law'. But that withdrawal would still have left me backing my other comments: no-one, without being politicised or simply stupid, or both, could make the decision that she did. Moreover, Mr Gaetjens's flexible attitude towards the truth, to serve his own political master, has now been confirmed through another FOI decision that I received last night. That decision was made by another PM&C official, Assistant Secretary Hugh Cameron, who yesterday used what was effectively a pro forma decision-making template to claim exactly the same thing, stating that he is 'of the opinion that national cabinet is a committee of the cabinet and therefore national cabinet documents are exempt from disclosure under section 34 of the FOI Act'. That's two. Two senior officials have now sought to ignore the ruling of a Federal Court judge.
Some might think it's unconventional that I come into this chamber and start naming public officials, but there are conventions being broken inside government that are far more harmful in respect of damage to institutions. Mr Cameron's decision is, to all intents, a carbon copy of Ms McKenzie's. So here we have another bureaucrat in the Prime Minister's department arrogantly asserting that he is more learned than a judge when it comes to the law; here we have another official politicised and disrespectful to the rule of law. Presumably he too will get a pat on the head from Mr Gaetjens. But, in actual fact, it's a case of Tweedledee and, with Mr Cameron, Tweedledumber. And to think that the secretary of PM&C would write to the Senate, to the President, seeking sympathy, when the Senate itself has resolved that it will not accept national cabinet as a public interest immunity relating to cabinet deliberations. Mr Gaetjens' claim of me taking on officials is that I have undermined public confidence in the Australian Public Service. That is laughable coming from the grub of a man that Mr Gaetjens is.
Alright, I will withdraw. But this is a fellow who hasn't led the Public Service in a highly professional way. Sure, he's been a public servant in government for a long time but that doesn't make him a true public servant. Instead, he has been happy to act as the Prime Minister's henchman, covering up all manner of sins and corruption in the government and particularly in other ministers' offices. The secretary of PM&C is a cover-up expert. If there is some dark secret that the government needs to bury, Gaetjens is the man who has the shovel. He's been helping the PM and sending all manner of dirty secrets and sins off to the governance committee of cabinet to be buried for the next 20 years in the vaults of the National Archives. Mr Gaetjens, you are a disgrace. It is you who has undermined confidence in the Public Service. I know there are very good people in the Australian Public Service, but, as it is said, a fish rots from the head and when the head is rotten, no-one is likely to have faith in the remainder of the fish.
In closing, I note that so low is Gaetjens' estimate of his own standing he has had to try and bolster his doubtful credibility of his letter by roping in the Australian Public Service Commissioner, Peter Walcott, and has had him co-sign the letter. Mr Walcott, you should be more careful of the company you keep. Tying yourself up to a political deadbeat like Gaetjens was a foolish move that won't enhance your reputation.
I would not usually rise to speak on a motion to take note, particularly a motion to take note of an answer that I have given. However, we have just seen quite an extraordinary display by Senator Patrick.
We have just seen the most extraordinary display by Senator Patrick, impugning motives against senior officials in the Australian Public Service, having already on a previous occasion singled out in quite an extraordinary way an individual senior public servant.
It is entirely appropriate for the Secretary of the Department of the Prime Minister and Cabinet to seek to defend public servants working across the Australian Public Service from being brought into improper political debate.
Those of us who serve in public office are fair game in this place for the political debates that occur. We bring many public servants into the limelight as part of Senate estimates processes and other processes of government to provide the opportunity for questioning and the opportunity for information-gathering across our democratic processes. But we ought to respect that those public servants are not elected officials and they are not public officials. They are individuals who rightly have accountability mechanisms and processes in place for the way in which they conduct their duties. Of course, as ministers, we are responsible for the work of our departments and for addressing those matters.
I acknowledge that, overwhelmingly, members of this place and members of the other place have respected the work of the Australian Public Service and have not sought to create this type of politicised attack on individuals within it. I acknowledge that the President will consider the matters before him and, if necessary, the privileges committee will consider those matters. But, certainly on behalf of the government, I wish to make clear our respect for the work of our Public Service officials and leaders, including those individuals who have been maligned in the comments by Senator Patrick.
Question agreed to.