Chapter 2Challenges in obtaining evidence from certain witnesses
2.1This chapter outlines challenges faced by the Senate Economics References Committee (committee) in obtaining evidence from certain witnesses during the inquiry into improving consumer experiences, choice, and outcomes in Australia’s retirement system.
2.2In particular, the chapter highlights concerns that some witnesses failed to provide fulsome responses to questions, even after the committee repeatedly engaged with them on a lack of information provided.
The committee’s inquiry role
2.3The Senate’s key functions are to inquire, debate and legislate. The Senate’s inquiry function is largely performed through the Senate committee system. The Senate establishes committees, appoints senators as committee members and refers matters to committees for inquiry and report.
2.4The Senate has significant inquiry powers which originate from Section 49 of the Constitution. Section 49 also recognises the role of committees:
The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament...
2.5The Senate has the power to compel evidence, including to ‘require the attendance of witnesses, the answering of questions and the production of documents, and to impose penalties for default’. The Senate delegates these powers to its committees to undertake inquiry work. However, it remains the responsibility of the Senate to make a determination of contempt in relation to a ‘person failing to comply with a lawful order of a committee’.
2.6Notwithstanding these powers, Senate committees nearly always gather inquiry evidence on a voluntary basis. Witnesses are requested, rather than required, to provide evidence. Indeed, Senate committee inquiries work best when there is a free flow of information between witnesses and committees.
2.7In November 2023, the Senate referred this inquiry to the committee to examine key issues on improving consumer experiences, choice, and outcomes in Australia’s retirement system and to report its findings back to the Senate. This is an important inquiry, with the issues at hand relevant to supporting the retirement outcomes of millions of Australians.
Challenges in obtaining evidence from certain witnesses
2.8As part of gathering evidence for the inquiry, the committee invited numerous witnesses to provide evidence at six public hearings. Subsequently, some of those witnesses were asked written questions on notice.
2.9While the committee received many substantive responses to written questions, the committee encountered significant challenges with some witnesses who were not forthcoming with information requested by the committee.
2.10To address this, the committee carefully considered witnesses’ responses and, where necessary, wrote to some witnesses to obtain further responses that provided the specific information requested. Despite these attempts, some witnesses continued to withhold requested information and this has undermined the committee’s efforts to gather evidence to support the inquiry.
2.11As outlined in this section, the committee has taken significant action to obtain relevant information from:
the Super Members Council;
Cbus Super; and
HESTA.
Challenges in obtaining evidence from the Super Members Council
2.12Super Members Council (SMC) is the peak body for Australia’s profit-to-member superannuation funds.
2.13SMC appeared at the committee’s public hearing on 14November 2024 and was subsequently asked to answer a range of written questions on notice put by Senator Andrew Bragg. The questions covered several issues, including, but not limited to:
particulars of modelling commissioned by SMC on the use of superannuation by Australians to purchase a home;
the equal representation model for superannuation fund boards; and
customer service standards in industry superannuation funds.
2.14SMC provided its responses to the written questions to the committee on 17January2025. Subsequently, the committee met and determined that several of SMC’s responses failed to adequately address the questions asked.
2.15The committee found that SMC’s responses variously redirected to a website, redirected to a non-substantive answer given at the public hearing, or generally failed to provide useful information. For example, in response to several questions regarding modelling paid for by SMC on the use of superannuation for purchasing a home, SMC replied that the modelling was available online and failed provide any substantive information to address the questions.
2.16Further examples of inadequate responses provided by SMC include its:
response to a question on the specific cost of its membership fees, in which SMC stated that ‘[m]embership fees vary by fund’;
response to a question on how much SMC spends on advertising, in which SMC failed to provide a figure and instead referenced a public awareness initiative and noted information was available on SMC’s website; and
response to a question on the SMC Chair’s views on the equal representation model for superannuation boards, in which SMC redirected the committee to an opinion piece published on the SMC website.
2.17Given the shortcomings of SMC’s responses, the committee wrote to SMC on 5February2025 to request that it provide further responses to 11 questions. However, SMC’s response, provided on 19February 2025, stated that SMC had ‘properly and reasonably answered the questions that were asked of us’. Again, SMC failed to provide substantial responses to the questions asked.
2.18As such, the committee met to consider SMC’s response and reiterated its earlier view that several responses provided by SMC lacked sufficient detail. On 25March2025, the committee wrote to SMC to affirm its view that SMC had not satisfactorily addressed the questions asked of it and to insist that SMC provide full responses to three of the questions. The committee also indicated that if SMC again failed to provide satisfactory responses, an order for the production of the information would be issued. SMC provided a response to the committee. However, the Australian Parliament was prorogued on 28March 2025 and the committee has not had an opportunity to determine the adequacy of SMC’s response.
Challenges in obtaining evidence from Cbus Super
2.19Cbus Super (Cbus) is a major Australian superannuation fund, with over 920000 members and $100 billion of assets under management as of December 2024. As outlined in the committee’s third interim report, serious concerns have been raised in this inquiry about shortcomings in Cbus’s governance arrangements.
2.20The committee sought evidence from Cbus via appearances at public hearings and through responses to written questions on notice.
Appearance at public hearings
2.21Cbus appeared at two public hearings for the inquiry, on 14 November 2024 and 29 November 2024. The Chair of Cbus, the Hon Wayne Swan, appeared at the 29 November 2024 hearing. However, the committee faced significant challenges in arranging for Cbus to voluntarily provide evidence at these hearings, even though Cbus was provided with advanced notice and flexibility to appear in person or via videoconference.
2.22For instance, the committee initially sought Cbus’s availability to appear at a hearing on 3October 2024, however Cbus advised it was not able to arrange a witness at short notice. As such, the committee invited Cbus to appear at a hearing on 14 November 2024. Following that, the committee wrote to the Cbus CEO, MrChristian Fok, on 7November 2024 to reiterate the committee’s request that Cbus appear at the hearing. On 13 November 2024, Cbus advised the committee that Mr Fok would appear.
2.23On 21 November 2024, the committee wrote to Mr Swan and Dr John Edwards, Chair of the Cbus Risk Committee, to invite them to appear at a hearing scheduled for 27 November 2024. However, Mr Swan responded on 22November 2024 that he and Dr Edwards were not in a position to add anything further to Mr Fok’s previous evidence regarding Cbus’ management of insurance claims as the matter was the subject of legal proceedings by the Australian Securities and Investments Commission. On 25 November 2024, the committee advised Mr Swan that the committee had consider his response and remained of the view that his appearance, and that of Dr Edwards, was necessary for the committee to properly explore issues relevant to its inquiry.
2.24Furthermore, the committee resolved that if Mr Swan did not accept the invitation to appear at the hearing the committee would formally summon MrSwan and DrEdwards to appear. On 26 November 2024, having received no substantive advice from Cbus, the committee issued an order to Mr Swan and DrEdwards to appear at the hearing the following day. Following the summons, Cbus requested that the committee reschedule Mr Swan’s and DrEdward’s appearance to Friday, 29 November 2024. The committee agreed to Cbus’s request and the committee held a hearing on 29 November 2024 specifically to receive evidence from Mr Swan and Dr Edwards.
2.25Following the hearing, the committee wrote to Mr Swan on 13 December 2024 seeking to clarify whether evidence he gave during the hearing was consistent with the findings of the independent review into Cbus. In particular, the committee asked Mr Swan questions regarding how the value of Cbus’ partnerships are measured and whether Mr Swan agreed with a finding of the independent review on their being a lack of metrics outlined in Cbus’ partnership proposals. Cbus provided a response to the committee’s questions.
Responses to questions on notice
2.26To gather further evidence, Senator Bragg put a range of written questions on notice to Cbus and Mr Swan. Senator Bragg’s questions covered a range of key issues, including but not limited to:
how Cbus measures the value of partnership agreements;
Cbus’s business practices;
issues related to Cbus breaching its obligations in relation to processing fund member insurance claims;
issues related to Cbus’s processes for ensuring partnership agreement are in the best financial interests of fund members; and
Cbus’s processes for nominating board members.
2.27Cbus provided its response to the written questions on notice to the committee on 17January2025. However, the committee concluded that close to 80 of those responses failed to adequately address the questions asked. For example, Cbus’s responses variously referred to previous non-substantive answers or redirected the committee to websites where it said the information sought could be found. Examples of such inadequate response include:
in response to eleven specific questions regarding Cbus’ interaction with the Government, Cbus redirected the committee to information given at the public hearings; and
in response to a question on whether Cbus paid the Construction, Forestry and Maritime Employees Union (CFMEU) for research, Cbus redirected the committee to a webpage on Cbus’s expenditure on promotion, marketing and sponsorship rather than simply providing a direct response to the question.
2.28Further, in response to a question regarding the finding of an independent review that Cbus’ partnership proposals lacked metrics and monitoring information, rather than answering the specific question Cbus stated that the committee could refer to a public statement published on the Cbus’ webpage.
2.29Moreover, Cbus’s response to a question that requested a copy of the Cbus risk register declined to answer the question on the grounds that doing so would provide sensitive or confidential information to the committee. While the committee gives careful consideration to reasons presented to justify not providing information requested, the response did not offer further detail to substantiate this claim.
2.30Given the shortcomings in Cbus’s responses, the committee again wrote to MrSwan on 5 February 2025 to request that, in his capacity as the Chair of Cbus, he address the questions asked by Senator Bragg. Further, the committee asked Mr Swan to provide further detail to substantiate Cbus’s claims that it should not respond to certain questions on the grounds of confidentiality.
2.31Cbus responded to the committee’s correspondence on 19February 2025. However, several of the responses did not address the committee’s concerns. For instance, the very first response in the document provided by Cbus, which asked ‘[h]ow much does Cbus spend annually on advertising?’, failed to provide a dollar figure. Instead, Cbus offered unnecessary descriptive detail before redirecting the committee to a Cbus website which, again, did not provide a direct answer to the question asked.
2.32Cbus provided a similar response to a question on how much money Cbus holds in reserve to pay future regulatory fines.
2.33After meeting again and determining that Cbus’s responses were largely unsatisfactory, the committee wrote to Cbus on 25 March 2025 to reiterate the committee’s view that several of Cbus’s responses did not adequately address the questions asked and to insist that Cbus provide full response to the questions by 27 March 2025. The committee also indicated that if Cbus again failed to provide satisfactory responses, an order for the production of the information would be issued. Cbus provided a response to the committee. However, the Australian Parliament was prorogued on 28March 2025 and the committee has not had an opportunity to determine the adequacy of Cbus’s response.
Challenges in obtaining evidence from HESTA
2.34HESTA is a major superannuation fund that has over a million members and manages some $91 billion of members’ retirement savings.
2.35HESTA appeared at the committee’s public hearing on 14November2024. Following the hearing, Senator Bragg asked HESTA several written questions on notice. In general, these questions related to HESTA’s expenditure, including whether HESTA had received legal advice on how aspects its expenditure met the best financial interests duty requirement.
2.36While HESTA responded to the questions on notice on 17January2025, the committee concluded that several of HESTA’s responses failed to adequately address the questions asked. Indeed, as with SMC and Cbus, HESTA’s responses variously provided non-substantive responses and redirected the committee to the HESTA website. Additionally, some of HESTA’s responses declined to provide answers, citing client legal privilege and potential confidentiality restrictions.
2.37As such, the committee wrote to HESTA on 5February2025 to request that HESTA provide further responses to seven of the questions on notice. Where relevant, the committee asked HESTA to provide further information to clarify its claims that certain questions should not be answered on confidentiality grounds.
2.38HESTA responded to the committee’s letter on 19 February 2025 and provided substantive responses to most of the seven questions. For instance, in response to a question regarding subscription fees paid by HESTA to organisations of which it is a member, HESTA provided a table clearly listing the organisations and the subscription fees paid. However, in two of HESTA’s responses to questions about legal advice received relevant to the application of BFID standards, HESTA again declined to answer the questions by simply stating ‘[l]egal advice provided to HESTA is subject to client legal privilege and HESTA should not be expected to waive that privilege’.
2.39The committee wrote to HESTA on 25 March 2025, seeking a full response by 27March to previously put questions on what legal advice, if any, HESTA had received that justified HESTA’s position regarding its position as part of sector peak bodies and organisations; and what legal advice, if any, HESTA had received that justified BFID standards in relation to payments made to unions. The committee also indicated that if HESTA again failed to provide satisfactory responses, an order for the production of the information would be issued. HESTA provided a response to the committee. However, the Australian Parliament was prorogued on 28March 2025 and the committee has not had an opportunity to determine the adequacy of HESTA’s response to the latest committee correspondence.
Committee view
2.40As outlined in this report, the committee's efforts to obtain evidence are grounded in the inquiry powers of the Senate. The Senate referred this important inquiry to the committee and it is essential that the committee is not unduly obstructed from gathering inquiry evidence.
2.41The evidence the committee sought from witnesses in questions on notice is central to the inquiry. In general, the questions relate to the adequacy of the superannuation governance arrangements that underpin the financial management of the $4.2 trillion Australians have in retirement savings. Australians make mandatory and significant contributions to their retirement. As such, there must be the highest order of competence and transparency by superannuation funds in acting in the best financial interest of their members.
2.42While many witnesses have provided substantial evidence to assist the committee to undertake its inquiry, some witnesses have frustrated the committee’s efforts to obtain clear and complete evidence. Where the committee agreed it was necessary, the committee formally liaised with those witnesses to obtain substantive responses to questions on notice. However, responses provided by some witnesses, in particular those representing SMC and Cbus Super, show a persistent willingness to obfuscate by providing incomplete and unhelpful answers.
2.43Quite simply, the committee should not have to go to the lengths it has to obtain relevant and basic information from witnesses. The committee is deeply concerned that the instances outlined in this report reflect a willingness to undermine the Senate inquiry process. Taken together, the lack of cooperation by SMC and Cbus Super with the inquiry process has impaired the committee’s efforts to gather evidence and has undermined the committee’s ability to scrutinise key issues relevant to the inquiry terms of reference set by the Senate.
2.44The Senate’s constitutional power to investigate, which is largely delegated to the committees, should not be undermined by witnesses concealing information by what appears to be an approach of running down the clock. The fact that the summons power had to be used to compel a former Treasurer of the Commonwealth to attend a hearing shows a shocking state of affairs wherein standards are being eroded. The Senate’s power was deployed in this case but it should not have been necessary. The many unanswered questions in this report were the subject of obfuscation for many months which is intolerable. The Senate is the House of Parliament which undertakes inquiry for the Australian people. It must be forthright and steadfast in seeking answers in future. The 48th Parliament provides an opportunity to take stock of how the investigative power is being deployed and the available sanctions for those who choose the route of obfuscation.
2.45The committee recommends that the Senate establish an inquiry into the sanctions available to the Senate where witnesses fail to act in good faith or do not answer questions.
Senator Andrew Bragg
Chair
Liberal Senator for New South Wales