PROCEDURE COMMITTEE
FOURTH REPORT OF 2009
The committee reports to the Senate on the following matters
referred by the Senate to the committee and considered by the committee.
RULES FOR QUESTION TIME
The committee has further considered the modified rules for
question time adopted by the Senate on 13 November 2008 and continued on 4
December 2008 in the form of a temporary order for 2009.
The committee has resolved to recommend the continuation of
these rules on a trial basis, subject to one modification. The committee
considers that there would be value in restricting supplementary questions to
thirty seconds to encourage conciseness and perhaps to provide time for a further
one or two more questions.
The committee suggests that the modified rules be prescribed
in another temporary order to operate for the remainder of this Parliament and
for the first two sitting weeks of the next Parliament, and that the operation
of the rules be reviewed before the expiration of that time. The proposed
temporary order is shown in the attachment.
PUBLIC INTEREST IMMUNITY
CLAIMS: OPERATION OF THE ORDER OF THE SENATE OF 13 MAY 2009
In accordance with the undertaking given in its Third Report
of 2009, the committee has further reviewed the operation of the order of the
Senate of 13 May 2009 governing the making of public interest immunity claims
in Senate committee hearings.
The committee considers that the supplementary estimates hearings
of 19 to 23 October 2009 indicated a greater appreciation of the intention and
effect of the order and a better adherence to it. There were, however, a few
anomalies which indicated that ministers and officers need further to
familiarise themselves with the order.
The hearings began with a statement by the Special Minister
of State and Manager of Government Business, Senator Ludwig, in the Finance and
Public Administration Committee, to the effect that the government would fully
comply with the order. The committee welcomes this statement. Following his
statement there were questions about whether there would be a practice of
taking questions on notice so as to consider whether public interest immunity
claims could be raised, without articulating the grounds of those claims at the
hearings as contemplated by the Senate’s order. This point was discussed by
senators but not fully resolved. The committee trusts that appropriate
judgment will be exercised by ministers and officers in taking questions on
notice.
In the same committee there was a repetition of the claim
that advice to government is never disclosed, which is not correct (a formal
written advice to the government was released on 29 October in connection with
the debate in the Senate on the medical services table), and is explicitly
stated by the Senate’s order not to be a reason in itself for refusing
information. When pressed on this point, the minister took the question on
notice. The claim that advice to government is never disclosed was repeated in
at least one other committee.
An occasion on which the order might properly have been
applied was somewhat confused: a senator asked about the existence of an
Australian Federal Police brief while disclaiming any intention of asking about
its content. This led to a dispute about whether his questions were about the
content, and the chair ruling questions out of order without any procedural
ground for doing so. The legitimate public interest grounds that could have
been raised, relating to law enforcement investigations and national security,
were not articulated.
One exchange raised the question of whether there is yet a
full understanding of the Senate's order. The Secretary of the Department of
Education, Employment and Workplace Relations refused to answer questions about
priority employment areas, and when asked for a public interest ground, stated
that her refusal was not a public interest immunity claim. This resembles
similar answers given in the previous estimates hearings. Some information was
provided and questions taken on notice, to the satisfaction of the questioning
senator, so the issue was unresolved.
That committee obtained from another Department of
Education, Employment and Workplace Relations officer the proper acknowledgement
that he could not claim legal professional privilege as a reason for not
answering questions about legal advice. This is a point that has caused some
difficulties in the past.
Failure to articulate an appropriate public interest
immunity ground for not answering questions also occurred in other hearings.
The Official Secretary to the Governor-General declined to reveal
communications within Government House without invoking the legitimate ground
of freedom of communication between executive officers and their personal
staff. In the Foreign Affairs, Defence and Trade Committee hearing,
“sensitivities” were raised on several occasions as reasons for not answering
questions, with a failure to articulate the appropriate public interest grounds
of prejudice to foreign relations and national security.
The Australian Broadcasting Commission refused to disclose
the salaries of its leading television personalities, a matter which has a long
history, and which led to Senate resolutions from 1971 declaring that statutory
bodies do not have a general discretion to withhold information about public
expenditure. On this occasion the exchange was inconclusive.
The committee reiterates that the Senate order requires that
the withholding from committees of advice to government requires some public
interest ground, and that there is not a general discretion to withhold
information without a statement of a public interest ground. Any claim by
officers to withhold information on public interest grounds must on request by
a senator or a committee be referred to a responsible minister, as required by
the order.
The committee will review the operation of the order again
after the next round of estimates hearings.
In the meantime, the Senate Department will continue to
acquaint departments and agencies with the order in the seminars on Senate
procedures which are held for public officers. Secretaries of departments will
again be reminded of the order at the appropriate time.
Alan Ferguson
Deputy President
and Chair of Committees
Chair of the Procedure
Committee
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