Chapter 19 - Relations with the executive government
Remedies against executive refusal of
information
As has been noted in the analysis
above, the principal remedy which the Senate may seek against an executive
refusal to provide information or documents in response to a requirement of the
Senate or a committee is to use its power to impose a penalty of imprisonment
or a fine for contempt, in accordance with the Parliamentary
Privileges Act 1987 (see Chapter 2, Parliamentary Privilege). As has also
been noted, there are practical difficulties involved in the use of this power,
particularly the probable inability of the Senate to punish a minister who is a
member of the House of Representatives, and the unfairness of imposing a
penalty on a public servant who acts on the directions of a minister. A penalty
imposed for contempt may be contested in the courts under the Parliamentary
Privileges Act (see Chapter 2, Parliamentary Privilege). It is possible, but
unlikely, that the courts in such a challenge could determine a claim of public
interest immunity (see Egan v Chadwick and others 1999 46 NSWLR
563).
The Senate may impose a range of procedural penalties on a government
for a refusal to provide information or documents, ranging from a motion to
censure a minister (see above) to a refusal to pass government legislation. The
Senate has, however, usually been reluctant to resort to the more drastic of
these kinds of measures.
In some cases procedural penalties have
been imposed and alternative methods of obtaining the required information,
such as committee hearings, have been pursued.
On 12 August 2003 the Senate deferred consideration of two customs and excise
tariff bills to give effect to an ethanol subsidy scheme until the government
produced documents required by various Senate orders relating to the scheme.
The documents were initially not produced and the bills were not passed until
documents were subsequently tabled. (12/8/2003, J.2089-90; 1/4/2004, J.3324-5)
A remedy against government refusal was included in an order for documents
made on 1 November
2000.
It provided that, should the required documents not be produced, the
responsible Senate minister would be obliged to make a statement and a debate
could then take place. Documents were produced in response to the order. (1/11/2000, J.3462; 2/11/2000, J.3479; 27/11/2000, J.3586)
(See Supplement)
As has also been
noted above, the Senate may seek to impose a political penalty on a government
for refusing to cooperate with a Senate inquiry. This, in effect, is what
happened in relation to the overseas loans
affair in 1975 and the taxation avoidance affair in 1982: the government’s
refusal to cooperate with inquiries was made the subject of unrelenting
political attack. In both cases, the perception that the governments were
concealing their own mistakes and misdeeds probably significantly contributed
to their defeat at subsequent general elections. As was suggested in
evidence before the Privileges Committee, however, an electoral remedy is
uncertain of application, depending as it does on the relative electoral
strengths of parties at the time.
Previous page | Contents | Next page
Website feedback: web.senate@aph.gov.au
Last reviewed 10 September 2010 by the Senate Web Administrator
© Commonwealth of Australia
Parliament of Australia Web Site Privacy Statement
Images courtesy of AUSPIC
|
