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Monday, February 10, 2014

Looming stoush in Canberra over accountability to parliament

The stand off over the government's refusal to provide documents concerning 'on water operations' by the border protection task force as part of Operation Sovereign Borders will be a high profile issue in the parliamentary sitting that commences tomorrow. 

But other Senate orders to produce haven't been complied with either.

Public interest immunity claims will be seen as part of the bigger picture of the general approach to transparency and accountability by the Abbott government.

In the four weeks in November-December that Parliament sat following the September election, the Senate issued 10 orders for production of documents, all with deadlines before the end of 2013. As at the end of January the Government had not complied with nine.

The orders issued in this period are at pages 42-46 of this answer to a question on notice by the Clerk.

The one instance of compliance involved the WestConnex project and documents provided to Infrastructure Australia by the New South Wales Government. When the Senate Procedural Information  Bulletin was published and the non-compliance rate with orders of the 44th Parliament stood at 100%, the Bulletin labelled it "an unprecedented situation."

At the Committee hearing on the OSB public interest immunity claim Immigration Minister Morrison said the documents sought in the Order contain
"operational information, which includes but is not limited to on-water tactics, training procedures, operational instructions, specific incident reports, intelligence, posturing and deployment of assets, timing and occurrence of operations and the identification of individual attempted voyages, and passenger information including nationalities involved in those voyages."
Disclosure to the Senate would "prejudice current and future operations, put people at risk who are involved in our operations and unnecessarily cause damage to Australia's national security, defence and international relations."

The Legal and Constitutional Affairs References Committee will report by 21 February.

As the Clerk of the Senate told the committee the big picture comes down to the
"means to balance competing public interest claims by governments on the one hand, that certain information should not be disclosed because disclosure would harm the public interest in some way, and by parliament's claim, as a representative body in a democratic polity, to know particular things about government administration, so that the parliament can perform its proper function of scrutinising and ensuring accountability for expenditure and administration of government programs.."
Senate powers to enforce an order are limited. Failure to respond to an order to produce is treated as a "a political question." The Clerk: 
"We have no powers to sort out the political questions. We suggest the parties go away and do what they can to sort the matter out." 
Hardly satisfactory you would think, particularly in light of the failure over the years to sort many such matters out even when the Senate seeks to impose procedural penalties as the Clerk explained in this letter of advice.  But preferable apparently to the other available options, for the Senate to vote to impose a term of imprisonment for a contempt or impose a fine, powers that have never been exercised. 

In response to questions about what else could be done, Dr Laing identified the NSW Legislative Council as having
"the best system around at the moment for adjudicating these matters They have chosen a system of adjudication and the council has a process whereby if there is a claim like a public interest immunity claim made in response to an order for production of documents, the process nonetheless involves the documents being handed into the custody of the Clerk and if there is a contested subset of those documents then an independent arbiter is appointed to assess the documents in the light of the claim of public interest immunity that is made and then to provide a report. It is then a decision of the council whether to publish the arbiter's report and a further decision of the council whether to then publish any of those documents.
It's not as if we haven't seen unresolved disputes over production of documents in the past including plenty in the Rudd/Gillard years. The first 44 pages of the Clerk's answer referred to above, include details of Senate Orders for documents and the outcome in recent years:
2008-2010: 33 orders not complied, nine partially; 17 complied with. 2010-September 2013 -26 not complied with, seven partially; 19 complied with.

All the parties in the Senate should share an interest in charging an independent arbiter with responsibility to sort these things out, but that would amount to a shared interest in good governance in the public interest. Both major parties threw cold water on the idea in 2009-2010. What odds?


  1. Anonymous4:10 pm


    I'm not sure if you've seen it yet, but on an unrelated note, the Dept of Comms has refused to release it's Blue Book (see for the review decision). Can I hijack this comments section to perhaps ask your thoughts on how [18] stacks up - it seems a bit fobbish?

  2. Thanks-I saw it yesterday. John McMillan told the Guardian recently that there are a number of review applications before the OAIC concerning the briefs and that he planned to extradite the matter. That's welcome- one recent decision came after two years. But the tide is shifting-the Crowe and Cornerstone decisions for example. And while the Department decision maker said the minister's views were irrelevant, the tone at the top is unmistakeable. Then there is the Hawke recommendation.

    Time for interested citizens to voice up!