Chapter 3 Appearance of the Central Land Council and the Northern Land Council
3.1As part of its examination of cross-portfolio Indigenous matters on 11November 2022, the committee heard evidence from the Central Land Council and the Northern Land Council.
3.2This chapter sets out the concerns the committee has about certain aspects of the Land Councils’ engagement with the committee. The chapter begins by summarising the Constitutional framework underpinning the Senate estimates process. It then briefly sets out the issues that arose when the Land Councils appeared at estimates and concludes with the committee’s views and a recommendation.
Constitutional framework and the role of Senate estimates
3.3The Australian Constitutional framework of checks and balances under a separation of powers places the Parliament in prime position as the agent of accountability, representing the Australian people.
3.4The powers, privileges and immunities of the Parliament were inherited under section 49 of the Constitution. And section 50 of the Constitution provides that each House of the Parliament may make rules and orders with respect to the mode in which those powers, privileges and immunities may be exercised and upheld and the order and conduct of its business and proceedings.
3.5Senate procedural order and resolution of continuing effect number 50deals with public funds and the duties of officers. In it, the Senate reaffirms the principle stated previously in resolutions of 9 December 1971, 23 October 1974, 18 September 1980, 4 June 1984, 29 May 1997 and 25 June 1998, namely:
i) that there are no areas in connection with the expenditure of public funds where any person has a discretion to withhold details or explanations from the Parliament or its committees unless the Parliament has expressly provided otherwise.
ii) its expectation that officers, including agency heads, will appear before committees in fulfilment of their accountability obligations, whenever their presence is requested by committees.
3.6In other words, the Senate has set out, over several decades, a procedure in which the agencies of government are accountable to the Parliament for the expenditure of public funds and the performance of their duties.
Appearance of the Central Land Council
3.7This section begins by setting out certain procedural matters pertinent to the appearance of the Central Land Council (CLC).
3.8Senate estimates is a long-standing and well-established information-gathering and accountability mechanism that occurs every year. In a typical 12-month budget cycle, there are three estimates rounds: budget estimates in May, supplementary estimates in October, and additional estimates in the following February.
3.9The cycle in 2022 differed slightly in certain respects because of the timing of the federal election, and the fact that the election resulted in a change of government. A budget and the associated budget estimates occurred under the previous government in May 2022. A second budget and associated budget estimates under the new government occurred in late October and early November 2022.
3.10Nevertheless, the usual process was followed with the notification of the timing of the budget estimates round, and on 27 July 2022, the Senate passed a resolution that set 11 November 2022 as the date for the examination of cross-portfolio Indigenous matters by the Finance and Public Administration Legislation committee.
3.11As a result of that resolution, portfolio departments and agencies had more than three months’ notice of the date(s) on which they might be expected to appear before the committee.
3.12The committee followed the same process for inviting witnesses to appear before it at estimates as it has in all previous rounds. Noting that the date was known well in advance, invitations for particular agencies to attend were sent on 24 October 2022.
3.13On 11 November 2022, representatives of the CLC appeared before the committee by video-link. The Chief Executive Officer (CEO) of the Central Land Council did not attend the public hearing.
3.14When asked why the CEO was not in attendance, officials of the CLC advised the committee of two things. First, the CEO had taken a pre-planned holiday. And second, the CLC stated they had only recently received an invitation to attend.
3.15The CLC representatives in attendance were unable to provide substantive information to the committee, opting instead to take a significant number of questions on notice.
Northern Land Council
3.16This section begins by setting out certain procedural matters pertinent to the appearance of the Northern Land Council (NLC).
3.17Legislation committees considering estimates are not able to take evidence in private. The rationale for receiving all evidence in public derives from the fact that the examination of estimates by legislation committees is effectively a substitute for consideration by the Senate in committee of the whole, which is a public process.
3.18The scope of questions at estimates is intentionally broad, and the Senate has ruled that any questions going to the operations or financial positions of the departments and agencies which are seeking public funds are relevant.
3.19This order is repeated for the benefit of witnesses in the Chair's opening statement at the commencement of each Senate estimates hearing, which also includes a test of relevance:
…any questions going to the operations or financial positions of the departments and agencies which are seeking funds in estimates are relevant questions for the purposes of estimates hearings.
3.20On 11 November 2022, senior officials from the Northern Land Council appeared before the committee by video-link. Three issues arising from the NLC’s appearance merit further consideration.
3.21First, the Senate’s expectation that agency officials appearing as witnesses will provide answers that assist committees in their inquiries. Second, the issue of how to manage the privacy of an individual when responding to questions in a public hearing where there is no provision for the committee to receive that information on a confidential basis. And third, the scope of questions at an estimates hearing. These issues are considered below.
3.22The first issue, the provision of answers and explanations that assist the committee’s inquiries, arose when Senator Lidia Thorpe asked the Chief Executive Officer of the NLC, Mr Joe Martin-Jard, whether there was a public recruitment process for the role of Principal Legal Officer at the NLC. Mr Martin-Jard responded: ‘It wasn’t deemed necessary’.
3.23When asked why not, Mr Martin-Jard stated, ‘I just said why. It wasn’t deemed necessary’.
3.24When questioned about whether consideration was given to employing a First Nations’ lawyer, Mr Martin-Jard again stated: ‘It wasn’t necessary’.
3.25Finally, after being pressed again to explain why this was not necessary, Mr Martin-Jard provided an explanation:
I'll tell you why. I had consulted widely amongst our executive, who are all traditional owners, and with our chairman, who's a three-term chairman of the Northern Land Council. After consulting widely, their advice to me was [the officer appointed] was the most appropriate person to fill the role. It's not as if it happened overnight. There was wide consultation.
3.26The committee considers this a more fulsome answer.
3.27The second issue, an unreasonable invasion of privacy, arose immediately after the above exchange when Senator Thorpe asked whether the NLC had dismissed its head of policy. Mr Martin-Jard stated ‘that’s a confidential matter that I’m not going into here’.
3.28Senator Thorpe pursued the line of questioning and established that the head of policy had been a First Nations’ employee. However, Mr Martin-Jard refused to discuss the matter further, stating ‘I’m not going to talk about that’.
3.29When pressed about why he refused to discuss the matter, Mr Martin-Jard claimed he was unable to provide information about the dismissal of a senior employee because that person was ‘entitled to some privacy’ and he did not have ‘her authority’ to discuss it publicly.
3.30The committee considers that while issues of personal privacy, depending on context and circumstance may or may not be provided for in public interest immunity in Senate procedure, the NLC may benefit from a greater understanding of their obligations to the Senate.
3.31Senator McGrath suggested that the most appropriate way to deal with the matter would be for the NLC to take the matter on notice, speak with the person, and answer the question on notice.
3.32The third issue, the scope of questions at an estimates hearing, arose when Senator Thorpe continued her line of questioning (see above), and the NLC’s Principal Legal Officer, Mr Dominic Gomez, asked whether the line of questioning about the internal employees of the NLC was relevant to the public interest.
Committee view
3.33As noted earlier, the framework of checks and balances under a separation of powers places the Parliament in prime position as the agent of accountability, representing the Australian people.
3.34The Senate and its committees expect that the Constitutional principles governing the accountability obligations of departments, agencies and authorities to the Senate and its committees will be adhered to.
3.35When examining estimates, committees are authorised to seek explanations from departmental and agency officials. The committee reminds all agencies about, firstly, their obligation to appear at Senate estimates, and secondly, to come sufficiently prepared to assist the Senate and its committees by answering questions that go to the operations or financial positions of the departments and agencies which are seeking public funds.
3.36In this regard, the committee considers that the appearance of the Central Land Council and the Northern Land Council raises four key issues related to the accountability obligations of agency officials. These are set out below.
3.37First, the committee acknowledges that there may be circumstances which mean that a particular official is unable to attend an estimates hearing. That said, the committee reminds all agency officials of the Senate’s expectation that officers, including agency heads, will appear before committees in fulfilment of their accountability obligations, whenever their presence is requested by committees.
3.38As noted earlier, the Senate published the date for the Indigenous cross-portfolio hearing more than three months in advance. It has been the Senate’s long-standing expectation that agency officials will set the date of an estimates hearing aside in case they are invited to appear before the committee.
3.39Therefore, the committee considers the reasons given for the non-attendance of the CEO of the Central Land Council on 11 November 2022, namely a pre-planned holiday and that the Council had only recently received an invitation to attend, are unacceptable. Further, they demonstrate a disregard for the Senate, its processes, and the central role that the Senate and its committees play under the Constitution as a mechanism for holding government agencies to account for their operations and expenditure of public funds.
3.40The committee therefore reiterates its expectation that the CEO of the Central Land Council will attend future estimates hearings. In this regard, the committee notes that the dates for all three cross-portfolio Indigenous estimates hearings (in February, May, and October) are now publicly available.
3.41Second, the committee reaffirms the principle that it is incumbent on agency officials appearing before a Senate legislation committee examining estimates to provide information and explanations sufficient to assist the committee in the conduct of its inquiries.
3.42The committee acknowledges that views on the nature of answers provided by agency officials are, at times, contested and somewhat subjective. That said, the initial responses given by the CEO of the Northern Land Council to a certain line of questioning (see section on the Northern Land Council) were perfunctory. This contrasts with the explanation that the CEO subsequently gave when he described his consultation with the executive of the Northern Land Council and the three-term Chairman. The committee therefore encourages all officials to provide more fulsome explanations in the first instance to assist the committee in its inquiries.
3.43Third, the issue of an unreasonable invasion of privacy, particularly in the context of an estimates hearing where all evidence must be taken in public, has arisen previously in Senate estimates hearings.
3.44A committee, and ultimately the Senate, will make a decision based on the facts of the matter in each circumstance. The competing principles at stake are the Senate’s right to inquire into, and receive information on, a particular matter. This is balanced against the harm that may occur if certain information is divulged in the public sphere.
3.45The first thing to be noted is that officials should provide as much information as they can at the time of asking. If there is a limit to what officials perceive they can provide in the circumstances, the committee’s preferred approach is for officials to provide as much information as they can during the hearing and take the rest on notice with an undertaking to come back to the committee with further information. Ultimately, if officials deem that certain information is unable to be provided, there should be a clear statement based on grounds previously accepted by the Senate about why that information cannot be provided and the harm to the public interest that would ensue if it was provided.
3.46However, the committee emphasises that making a claim for public interest immunity should be a last resort because, in the interests of transparency and accountability, the aim should always be to provide a committee with as much information as possible.
3.47Fourth, the issue of the scope of questions at an estimates hearing arose when the Northern Land Council’s Principal Legal Officer asked whether questions about employees of the Northern Land Council were relevant. The committee reminds all agency officials that any questions going to the operations or financial positions of the departments and agencies which are seeking public funds are relevant. Further, the committee reminds all agency officials that there are no areas in connection with the expenditure of public funds where any person has a discretion to withhold details or explanations from the Parliament or its committees unless the Parliament has expressly provided otherwise.
3.48The committee notes that some agencies, especially smaller ones, not based in Canberra, with reporting obligations to the Senate are not called before hearings as often as others. The committee is mindful that the Senate has obligations to these organisations to ensure they adequately understand their obligations and are able to prepare accordingly.
3.49Considering the above, the committee is of the view that neither the Central Land Council nor the Northern Land Council demonstrated a satisfactory understanding of their obligations to the Senate and its committees. The committee therefore considers that officials of the Central Land Council and Northern Land Council should undertake training to assist their senior staff and Board members to enable them to better meet their responsibilities to the Senate and its committees through understanding Senate procedures.
3.50The committee notes that the Senate Procedure Office organises training (also delivered online) specifically designed to assist agency officials in these matters and recommends that senior officials of both the Central Land Council and Northern Land Council undertake this training at the earliest opportunity.
3.51The committee recommends that the Central Land Council and the Northern Land Council provide regular training and support to senior staff and Board members to enable them to better meet their responsibilities to the Senate and its committees through understanding Senate procedures, and that senior officials of both the Central Land Council and Northern Land Council undertake training organised by the Senate Procedure Office at the earliest opportunity.
Senator Louise Pratt
Chair