Wednesday, 7 September 2022
Parliamentary Privileges Amendment (Royal Commission Response) Bill 2022; Second Reading
That this bill be now read a second time.
I seek leave to table an explanatory memorandum relating to the bill.
I table an explanatory memorandum and seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
The Royal Commission into Defence and Veteran Suicide was forced to extend its inquiry by twelve months in April, partly because it's had trouble getting important information out of the Department of Veterans' Affairs and the Department of Defence.
Commissioner Nick Kaldas was asked about it in an ABC interview with Patricia Karvelas last month. It's worth documenting his response.
Karvelas referenced the DVA and Defence delays and asked, "…has information been more forthcoming over the past few months [since the inquiry was extended]?"
Commissioner Kaldas replied, "Not as yet. We're still waiting for some things to be resolved."
Karvelas said, "I consider that—please correct me if I'm wrong—quite alarming. You're a Royal Commission… Does it concern you that, you're a Royal Commission, with Royal Commission powers, and that you've found it so difficult?"
The Commissioner told it to her straight: "Yes, it does."
This bill addresses one of the biggest barriers stopping the Royal Commission from doing its job: parliamentary privilege.
I don't move it lightly.
Parliamentary privilege has protected the same witnesses and whistle-blowers who fought so hard to get this Royal Commission established.
It protects people who have come to me and told me the horrific things going on in Defence.
It gave me power to fight for them.
But the Parliamentary Privileges Act isn't working well when it comes to Royal Commissions. It gets in the way when those Royal Commissions need to examine the actions of government.
Instead of protecting people with no power, it's shielding people in power from scrutiny.
That's why the Veteran Suicide Royal Commission's hit roadblocks.
The Royal Commission wants to ask the hard questions. They want to bring Defence officials and officials from the DVA on the stand and drill down on them.
It's what we set them up to do. But they can't do it.
Don't take it from me. Take it from the Royal Commission itself. The interim report says that privilege "impedes transparency surrounding government decisions and acts as a shield for the executive from accountability for their commitments and actions taken to implement matters subject to privilege."
That's because parliamentary privilege prevents courts and tribunals (including Royal Commissions) from drawing inferences or conclusions from a report or inquiry that is subject to its protection.
That's why the Royal Commission says it can't inquire into the work and outcomes of prior Senate inquiries and Auditor-General reports, even though its terms of reference require it to do so.
The Royal Commission can't admit documents subject to privilege and draw conclusions from them.
It can't ask witnesses who worked on audits of Defence and DVA programs to give evidence about their investigation—not if it wants to use that evidence to make any meaningful findings, anyway.
And if it wants to use evidence that's subject to privilege in its findings, the only way to do that is to redraw that evidence from witnesses. It has to redo the work, rerun the inquiry.
It has to tip toe around everything we've done in Parliament up to this point.
All that work that's come before, all the work we did in the Senate, the Royal Commission can't use it to come to any conclusions about what the government's been up to all these years.
It's a terrible waste.
Take what happened with the 2021 Auditor-General report into the successes and failures of cultural reform strategies in Defence.
The report matters to the Royal Commission. It made a number of recommendations on how to improve the health, wellbeing and safety of ADF members. Defence's response to the audit is relevant to the terms of reference for the Royal Commission's inquiry.
It's publicly available on the Auditor-General's website and has probably been downloaded thousands of times.
But the Royal Commission hasn't been able to use the report in any meaningful way.
Counsel Assisting the Royal Commission found that parliamentary privilege prevents them from asking Defence representatives questions about the report because they can't make any kind of finding or conclusion from evidence that's subject to privilege.
They wanted to show parts of the report on screens at one of the Royal Commission's public hearings. They wanted to tender it, to refer to it in questioning.
Parliamentary privilege prevented them from doing so—the risk of being accused of making findings from protected information was too great.
They had to make clear that the Royal Commissioners should not make any conclusions or findings on the basis of the Auditor-General's research.
All that work. It's useless to them.
The Counsel Assisting the Royal Commission make it through by looking for official documents that were published outside Parliament and that reference the findings and outcomes of inquiry reports.
In one case they were lucky enough to find an official document outlining the recommendations and government response to the 2017 Senate inquiry report, The Constant Battle: Suicide by veterans.
They used this document—instead of the report itself—to get people in the witness box and look at what the Australian Government did in response to the inquiry's recommendations.
It worked then, but it's not sustainable.
We can't have a situation where it comes down to pure luck whether the Royal Commission can get to the evidence it needs to meet its terms of reference.
This Royal Commission has been hard won by thousands of veterans and their families who knew it was our only shot to call out the terrible failures of government that led to hundreds of veterans taking their lives.
There's nothing higher than a Royal Commission. We don't have anywhere else to go.
But even here—in an inquiry with the strongest investigative powers you can imagine—we see how far executive government will go to avoid transparency and avoid accountability.
It just goes to show how hard it is to get to the bottom of the terrible problems with Defence and Veterans' Affairs.
That's why we're moving to enact recommendation 7 of the Royal Commission's interim report.
The provisions of this bill follow the Royal Commission's recommendation precisely, to exempt Royal Commissions from paragraph 16(3)(c) of the Parliamentary Privileges Act, where their terms of reference require examination of government.
Exactly what the Royal Commission asked for.
I know it's a serious thing to open up an exemption to privilege.
But this Royal Commission is important too. All Royal Commissions are.
And if the Royal Commission says they have a problem, they have a problem.
We can't ignore what they're telling us.
We've got to find a way to make sure Commissioner Kaldas and the other Commissioners can turn over every stone—every rock—and get to the bottom of what's gone so terribly wrong in Defence and DVA.
That should be the goal of everyone in this place.
Senator Tyrrell and I will talk to anyone and everyone about how we fix the problems the Royal Commission's found.
That's why I hope to send this bill to an inquiry so we can thrash out the issues that the Royal Commission's raised.
But we've got to act now and we've got to act fast.
This Royal Commission has been too hard won for us to stuff it up now.
All those people who rocked up on cold mornings to protest.
The mums who came to Parliament to tell the PM about the sons they lost.
The brave soldiers and veterans who've stood up and given evidence, even though it hurts, even though it takes them to a dark place.
Everyone we've lost.
Our veterans and our defence personnel are relying on making this Royal Commission a success.
This has to be our last inquiry into veteran suicide.
It has to be. Seventeen inquiries in seventeen years.
We can't go through any more.
So, I call on Labor today—take this seriously. Come to the table and help us figure this out.
You helped us win this fight, and veterans won't forget that.
But now you're in government and you're responsible for making sure this inquiry—the last inquiry we'll hopefully ever have—you're responsible for making it work.
Yes, that will mean hard decisions.
Yes, that will mean upsetting some apple carts. Being brave.
It's worth it.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.