Tim Ayres (NSW, Australian Labor Party, Minister for Industry and Innovation) Share this | Link to this | Hansard source

Before I read this statement on behalf of the Minister for the Public Service, I'd just like to briefly inform the Senate that Senator Gallagher is not able to make this explanation because she has had to leave the Senate this afternoon for personal reasons. She was able to deliver this explanation at the original time allotted on the daily program. I understand that Senator Gallagher has personally explained this to Senator Pocock. If me delivering this statement is not adequate, we'll work with Senator Pocock to find an agreeable time next week.

In relation to the ministerial attendance, consistent with our position on all motions related to this request, as Minister Gallagher has already made very clear, the report referenced in this motion is being used to inform government decisions at a cabinet level. Actual deliberations of the Executive Council or the cabinet are protected from disclosure. In this case, the report is the central document for those cabinet deliberations. It has not been previously released or published, and a decision has not been made yet on the deliberations. The release prior to the finalisation of cabinet process would negatively impact those deliberations. I understand that Minister Gallagher has personally spoken to Senator Pocock and conveyed this in order to be up-front about the government's reasons for opposing this motion. As she said on a number of occasions, when the government has completed relevant deliberations, the report will be released.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I move:

That the Senate take note of the explanation.

I thank Minister Ayres and Minister Gallagher for that explanation and her time on this issue. I'm still disappointed that the government continues to resist the Senate's orders on this one. It has been two years since the government delivered this report, and it feels like we're supposed to accept that it has been under active consideration by the cabinet for two years. I don't accept that.

But I really want to spend my time now talking about the claim of cabinet confidentiality in detail and the worrying trend of increasing secrecy that I believe is stopping the Senate from undertaking its role as the house of review, the house of scrutiny. During the Morrison government, Senator Gallagher chaired the Select Committee on COVID-19. I've had a read of the second interim report recently and saw that the committee, during its time, was continually stonewalled by claims from the former government of cabinet confidentiality, so much so that the committee dedicated a whole chapter of their report to this issue, and I think it would be useful to actually quote from that report. To quote, regarding claims of cabinet confidentiality:

… claims must be accompanied by sufficient detail to enable the committee to determine the specific merits of each claim on a case-by-case basis. Each claim must establish that disclosing the particular information requested would reveal Cabinet deliberations and cause harm to the public interest. It is not adequate to refuse to provide information merely on the basis that the information has a connection to Cabinet.

It then goes on to say:

Minister Cash's claims make broad, general statements that it is 'longstanding practice' not to provide information relating to Cabinet and that Cabinet's deliberations should be 'conducted in secrecy'. Minister Cash's claims also rely on a general statement that disclosure is not in the public interest as it may impair the government's ability to obtain confidential information and make related decisions.

To cut a long story short, the committee chaired by the now Minister for Finance and Minister for the Public Service urged the Senate to reject claims of cabinet confidentiality being advanced by the then government on the basis that (1) they were vague in nature, (2) they did not provide enough detail to determine whether cabinet deliberations would be revealed and (3) they did not provide information to determine the harm that would be caused if the documents were released. And we're confronted with the exact same circumstances today. The minister's letter to me says: 'The tabling of the document would reveal cabinet deliberations. In other cases, previous documents that had been classified as cabinet-in-confidence were subsequently tabled as they were either public or decisions had been made by cabinet. In this case the report is central to the consideration by cabinet and it remains under consideration.'

That seems pretty vague to me and doesn't actually address the three things that the now government demanded of the former government when Labor were in opposition, and I find this really concerning in the Senate. This report could not possibly contain the deliberations of cabinet. It was a report independently done and provided to cabinet, presumably with the intention that it would be made public. In fact, on the APSC website it says it would be made public, and there's no caveat. It doesn't say 'after cabinet processes'. It just says that this will be made public by this date.

I think that as a Senate we really have to call this out because, if you look at the last parliament, once you crunch all the numbers the Albanese Labor government was the second most secretive in the past 30 years. If you compare their compliance with OPDs and with FOIs, they were sitting at 32½ per cent. For the Keating government it was 92½ per cent. And we're seeing this really worrying trend of the claim of PII, when I think it simply isn't warranted, and I urge the Senate to stand up against this.

James Paterson (Victoria, Liberal Party, Shadow Minister for the Public Service) Share this | Link to this | Hansard source

I rise in support of Senator Pocock and congratulate and thank him for pursuing this OPD and continuing to pursue the government's noncompliance with the Senate's orders. This is an issue of gross hypocrisy by those opposite, who, as Senator Pocock correctly pointed out, when they were on this side of the chamber were incredibly vocal about the importance of transparency, and not just that, but they promised to do better. They promised to be the most transparent government ever, promised to uphold the standards of the chamber and important integrity and transparency measures like FOIs and orders for the production of documents.

It has led independent respected institutions like the Centre for Public Integrity to conclude that this government is objectively, measurably far worse when it comes to transparency than the government that they replaced, the Morrison government, of which they were so critical. That's a comparison that I know the Prime Minister would be particularly sensitive to, because he was highly critical of former prime minister Morrison when it came to transparency. But, as the Centre for Public Integrity has shown in their recent report, the Morrison government complied with 48.7 per cent of Senate OPDs in its final term, whereas the Albanese government complied with only 32.8 per cent of OPDs in its first term. I confidently predict that in this term they will do even worse, if these first few months are any guide.

As the Centre for Public Integrity warned, these actions suggested a 'deliberate effort to avoid scrutiny'. The Centre said:

The Senate is being blocked from fulfilling its constitutional role of holding the government to account. This trend is dangerous for democracy.

That's right. And it is not just hypocrisy on the part of the government in general but, I'm sorry to say, by Senator Gallagher, the Minister for Finance, in particular. Again, as Senator Pocock pointed out, when Senator Gallagher was in opposition, when she was in a different position, she had a very different view when it came to the question of whether cabinet documents were, carte blanche, exempt from being provided under OPDs or whether indeed governments were required to specify when a document could not be provided. Senator Pocock already quoted, and I want to add to the record as well, that as chair of the Senate Select Committee on COVID-19, on which I served with Senator Gallagher, she made the following remarks in the second interim report of the committee:

The disclosure of the deliberations of Cabinet has achieved a measure of acceptance as a basis for claiming public interest immunity. However, such claims must be accompanied by sufficient detail to enable the committee to determine the specific merits of each claim on a case-by-case basis.

Each claim must establish that disclosing the particular information requested would reveal Cabinet deliberations and cause harm to the public interest. It is not adequate to refuse to provide information merely on the basis that the information has a connection to Cabinet.

That is what the government is attempting to do in this case.

Senator Wong has been vocal about this issue in the past. In fact, on something that is in some ways more sensitive, when a matter went to cabinet and was considered by cabinet she objected to it being withheld, in 2005 at a Senate estimates hearing:

… questions about the timing of cabinet discussions have been routinely asked and answered in estimates hearings and elsewhere and that it is difficult to see how the claim for immunity in this case could reasonably be made. In light of the advice, I ask again for the occasions on which the Welfare to Work package has gone to cabinet between February and these hearings.

Odgers ' is clear on this, precedent is clear on this and those opposite were clear on this when they were on this side of the chamber, but they are not now.

It is particularly odd that they are so reluctant to release the Briggs report, given that, in the State of theservice report 2022-23, provided by the Australian Public Service Commissioner, Dr de Brouwer said, on page 91 of that report:

The review's final report to the Government is expected to be published in late 2023.

That is almost two years ago now that the government committed to the release of the Briggs review.

We are left to wonder, we are invited to speculate: what is the reason they are refusing to release this document? Perhaps it is because one of their recent Public Service appointments made no attempt whatsoever to comply with best practice when it comes to Public Service appointments—one that is so outside the bounds of normal Public Service appointments and recruitments that this government would be very reluctant for it to be compared to their own report recommending best practice. I suspect this is an issue which we are all going to continue to have to pursue for some time.

Barbara Pocock (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to take note of the minister's explanation. I am in agreement with a lot of the comments that have already been made by Senator David Pocock and Senator Paterson.

Two years ago, the government commissioned the Briggs review to clean up public sector board appointments. It was meant to shine a light on a system riddled with cronyism. Minister Gallagher said it was:

… all about putting an end to the jobs for mates culture that defined the previous Morrison Government's public sector appointments.

Importantly, the review was conducted to improve transparency over appointments, and to be open with the public and to restore public trust in public institutions.

The review was handed to the minister in August 2023, and, rather than release it, the government has locked it away under cabinet confidentiality. Think about that for a moment: a report about transparency, meant to shine a light on how powerful appointments are made, has been buried in the shadows of cabinet. It's absurd. It is the very definition of 'irony'. It's a textbook example of the old politics that the Prime Minister once proposed to leave behind.

We know what's at stake here. These boards oversee billions in public money and they carry enormous responsibility. The people who sit on them should be appointed because of their skills, their expertise and their commitment to the public good, not because of their political connections. The Briggs review was meant to lay out a pathway to achieve this, but without public scrutiny how can we know whether the government is serious about reform? Worse still, every high-profile appointment since the review was delivered is now tainted by speculation.

It begs the question: what is Labor hiding? The Labor government promised Australians a new era of integrity, transparency and accountability in public life. That promise was central to their election campaign. It's a promise they repeatedly claimed as the bedrock of their Public Service reform agenda. Yet, when faced with the opportunity to prove their commitment to openness, the government has chosen secrecy. Labor cannot have it both ways. They cannot lecture about rebuilding trust in democracy while withholding a report designed to do exactly that. They cannot decry the culture of a jobs-for-mates culture while refusing to let Australians see the recommendations for ending it. The public has a right to know, and we believe integrity must be more than a slogan.

If the government truly believe in merit based, transparent and fair appointments, they should release the Briggs review today. Until they do, every word they say about integrity in public life and every appointment they make at the senior level that breaks their own rules, or where it is unclear on how it was made, will ring hollow.

Question agreed to.