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Making Governments Accountable

Speeches in Parliament
Scott Ludlam 2 Feb 2010

Senator LUDLAM (Western Australia) (4.53 pm)-I was certainly interested to hear those comments and I thank Senator Bernardi for chairing that inquiry. I found it very interesting as well, possibly for some slightly different reasons. I want to provide a bit of context as to how this inquiry came about in the first place.

A couple of months ago-actually, probably nearly a year ago-Senator Minchin came to us and wanted to know whether we were interested in supporting a motion in the Senate that would prevent any debate on legislation related to the National Broadband Network roll-out until the government had handed over the documents involved in the $4½ billion request for proposals for the original NBN. The Minister for Broadband, Communications and the Digital Economy, Senator Conroy, had effectively crashed that tender and announced, with the Prime Minister, a project effectively 10 times the scale and that there would be no public release of the documents that had led to that decision being made. Senator Minchin's contention-which after a bit of thinking we agreed with-was that it was in the public interest for those documents to be tabled, inasmuch as that was possible for the government, so that the parliament-and through us, the community-could make a decision as to the thinking and the decision making behind one of the largest public infrastructure proposals, if not the largest, that this country has ever seen.

Minister Conroy said, ‘I can't give you those documents and I don't need to provide any reasons as to why I can't. They are commercial-in-confidence and you can't have them.' At that point you have a classic deadlock between the legislature and the executive. The executive, through Minister Conroy, was saying, ‘You can't have these documents. I don't have to provide you with a statement of reasons as to why, and there is just not a great deal that you can do about it.'

As a result, the cross benches, with the support of the government at the time, proposed this inquiry into what happens when the legislature and the executive are deadlocked in this way. It is a problem that has come up time and time again. That is why Senator Bernardi was sketching earlier that there have been some approaches in Victoria and New South Wales-and most recently in the ACT-to try to break this deadlock.

The current case might be about the NBN documents, and that matter is still unresolved. We have to take Minister Conroy's word for it because the government is under no compulsion to hand over those documents. This proposal, and what the Finance and Public Administration Committee was required to look into, was a method for breaking this deadlock and other deadlocks like it which occur not often, but often enough to be a recurring theme: that the executive is able to basically able to say, ‘You can't have that material and you just have to trust us as to why not.'

What Senator Bernardi did not mention was that every single witness who appeared before the committee on our one day of hearings, and every submission, was supportive of just such an instrument of the Senate and the executive agreeing that an independent arbitrator should be able to make the decisions as to whether-on sight of the documents or not-it is in the public interest for the material to be made public or not. Every witness was supportive-with the exception of officers from the Department of the Prime Minister and Cabinet, who had no opinions at all about anything. We heard from some of the best minds in the country-people intimately involved at a Commonwealth level or at a state level in Victoria and New South Wales with the way this sort of instrument has been operating elsewhere-and every one of them was supportive. They went to the trouble of pointing out the flaws in the draft motion which the Greens and Senator Xenophon have acknowledged in our dissenting comments. But they went one step further, none of which was picked up in the majority report of the committee, which was to provide the solution and amendments to the motion to actually make the system work.

Professor Anne Twomey, whose thoughtful comments were cited throughout the majority report as reasons to not proceed, and her evidence was leaned on very heavily in the draft that we received from the major parties, said that there were some problems; they were resolvable and reconcilable. I asked her, ‘Are you in favour on balance of an instrument like this operating?' She said: ‘Well, yes. On balance I think it is a good idea. Despite all my complaints about the New South Wales system I think overall, in principle, it is a good idea. It has just not operated terribly well in New South Wales but I think it could operate better in the Senate.' That quote did not make it into the final copy of the committee's report because the major parties basically have agreed that in the matter of these kinds of deadlocks they would simply rather back down.

I would be fascinated to see Senator Minchin's take on this when we come back, probably in a week or two, to debate NBN legislation that is actually not prepared to press the point and get the minister to hand over the documents to somebody independent, an umpire, that allows the Senate to then stand back and say, ‘Well, as it turns out the minister was right. It is not in the public interest for those materials, or part of those materials, to be released, so in that case we will back off. But at least it has been to an independent set of eyes and we are not having to trust Minister Conroy on this.' As I recall, it is a matter of $4½ billion which has now been magnified 10-fold.

Every other witness had something similar to say. They made contributions on the problems and some of the issues that might arise if such a motion were to be carried and then they proposed solutions. For anybody who is interested in that, those solutions are now a matter of record because we have summarised them in the dissenting report. The chair, presumably with the collusion of the Labor Party members of the committee, could not be bothered to do just that-to show what the solutions are.

The majority report problematised the proposal that we put without making the obvious next step of improving the model. It is left to the cross benches to do that. I am very happy to do so but I have to shake my head at the failure of the opposition at least to take this opportunity to hold the government and the executive to account. Here is a golden opportunity right now to work constructively with the cross benches and government senators and government members to solve a longstanding issue of what happens when the legislature and the executive are deadlocked in this way.

We have learned enough from Victoria and New South Wales-both from what those systems have in common and from what they have in contrast to the Senate-to be able to propose a model that will actually be quite a good fit for current Senate practice and custom and to resolve the issues that the majority report identifies but then neglects to solve. One of the issues that was raised was hypothetical executive hostility: ‘The government won't like it, so we won't bother proceeding down this track.' That is an extraordinary abdication of our responsibility as members of Senate committees-and I have seen them work much more collaboratively than this one did-to go on the front foot and say, ‘Executive hostility is not an excuse to not proceed with this kind of instrument, because here is a way, actually, of breaking this kind of deadlock.' Ironically enough, the majority report notes:

... the committee's view is that more accountability benefits will be achieved when the Senate and the executive work together to develop mutually agreeable strategies for resolution of public interest immunity claims ...
And then they voted down and rejected an entirely workable strategy for doing exactly that. Hand these decisions over to somebody independent and we will abide by the judgements of that person in the form of an independent arbitrator.

There are a number of other proposals that Australian Greens and Senator Xenophon have put forward in this dissenting report which would go, I think, quite a long way to easing the concerns that were raised by witnesses and the concerns that were raised quite justifiably by Senator Bernardi just then, who sat down before taking the obvious next step of proposing what the solutions would be. We have a pretty cut and dried example here of the major parties being at the behest of the executive-and for what reason the opposition takes this view I have absolutely no idea. I can understand the government taking this view but certainly not the opposition. If it falls to the cross-benchers to be the genuine opposition in this case then I am happy to step into that role. But this is an unnecessary squandering of a perfectly good opportunity to make some real progress on this issue.

To give you one example of the things Senator Bernardi said: ‘There is nothing in this motion that says that the arbitrator should be given copies of the documents in question.' Granted. Understood. Let us change that in the motion. Let us not just sit down without proposing that as an obvious amendment to the motion so that we can move forward. I am really disappointed that this is the way the major parties have chosen to engage with this. I certainly will not give up. This is a long-running issue that has quite a bit of precedent behind it and no doubt much ahead of it. I think eventually we will-through some circumstances perhaps a bit more enlightened than we are having to sit through today-resolve this issue in a manner that allows the Senate to do what it has obviously been designed to do. People who drafted the Constitution wanted this house to be able to hold the executive to account in exactly these kinds of matters. That is what we are here to do.


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