1.1
Senator Jacqui Lambie, of the State of Tasmania, concurs with the
Committee’s Report on Matters raised by New South Wales (NSW) Police Strike
Force CIVET, and writes separately to further address issues concerning an
inability to establish the status of the ‘confidential’ CIVET report.
1.2
Given the national security times we live in, with an increased risk of
terrorism upon our soil, it is key defence agencies; state and local
governments working closely together to maintain a level of trust and good
communications. While the Committee rightfully does not rely upon the draft
CIVET report due to the inability to establish its status, the draft report did
raise very serious concerns about the proper workings of federal agencies that
have thus far evaded proper Parliamentary scrutiny. In this regard, it is most
disappointing that the NSW Police Force refused to cooperate with this
Committee and did not make available, even in camera, its final CIVET
report. The final CIVET report would have certainly aided the Committee in its
inquiry.
1.3
While the General Counsel of the NSW Police cites section 49 of the
Constitution, and publications by former Clerk of the Senate, Harry Evans, as a
proposition that the Senate should not summon officers and documents of state
and territory governments for reasons of comity, the issues of these purported
limitations have not yet been properly tested. Indeed, Mr Evans noted that 'there
are no known limitations in law to this power . . . no authoritative court
judgments establishing any such limitations [currently exist]'.[1]
1.4
There are judgments that provide some authority that the Commonwealth
may not act in such a way as to prevent essential functions of the states.[2] However,
that authority is distinguishable from the present References Committee inquiry
in that requiring the final CIVET report to be provided to the Committee would
not place a special burden on the State of NSW, by way of legislation or
regulations, nor would it curtail or weaken the State of NSW’s capacity to
exercise their constitutional powers or functions as was the case in Melbourne
Corporation; the Commonwealth has not introduced an invalid Act as was the
case in Queensland Electricity Commission nor was this References
Committee seeking to introduce any Act whatsoever;
nor did this inquiry involve legislation and/or rulemaking that
curtailed governmental functions as was the case in Re Australian Education
Union; and finally this matter has absolutely nothing to do with liability
to pay federal tax as was the case in Austin v Commonwealth which
involved two separate Acts and their construction.
1.5
The General Counsel of the NSW Police fails to cite a single established
authority where a Senate References Committee did not have the power to compel
a document to aid it in its oversight power in the context of an inquiry which
has nothing to do with the creation of legislation. Further, the NSW Police
General Counsel speculates that it could possibly object to the production of
the CIVET report on the basis of a public interest immunity claim without
citing any authority to support such possible claim.[3]
1.6
Given the language of the terms of reference, I do not believe this
inquiry would be the proper test case to address the above in the context of
production of documents as it relates to a References Committee inquiry being
conducted in purely oversight capacity. For these reasons I concur with the
Committee's report.
Recommendation 1
1.7
That the inquiry be re-opened should the final NSW Police CIVET report
and/or other credible evidence becomes available during the 45th
Parliament which contradicts the Committee’s reliance upon the Department of
Defence's submission of background information and chronology of events.
Jacqui Lambie
Senator for
Tasmania
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