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REPORT ON PROPOSALS FOR CHANGES TO THE WELFARE SYSTEM
22 NOVEMBER 1999
© Commonwealth of Australia 1999
ISBN 0 642 71043 0 |
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Committee Secretary
Senate Standing Committees on Community Affairs
PO Box 6100
Parliament House
Canberra ACT 2600
Australia
MEMBERSHIP OF THE COMMITTEE
Members for the 39th Parliament
| Senator the Hon Rosemary Crowley, Chair |
ALP, South Australia |
| Senator Sue Knowles, Deputy Chairman |
LP, Western Australia |
| Senator Andrew Bartlett |
AD, Queensland |
| Senator Chris Evans |
ALP, Western Australia |
| Senator Brenda Gibbs |
ALP, Queensland |
| Senator Tsebin Tchen |
LP, Victoria |
Substitute Member
| Senator Faulkner for Senator Gibbs for
the inquiry |
ALP, New South Wales |
Participating Members
| Senator the Hon Eric Abetz |
LP, Tasmania |
| Senator Bob Brown |
Greens, Tasmania |
| Senator the Hon
David Brownhill |
NPA, New South
Wales |
| Senator Paul Calvert |
LP, Tasmania |
| Senator Grant Chapman |
LP, South Australia |
| Senator Helen Coonan |
LP, New South Wales |
| Senator Winston
Crane |
LP, Western Australia |
| Senator Kay Denman |
ALP, Tasmania |
| Senator Alan Eggleston |
LP, Western Australia |
| Senator the Hon
John Faulkner |
ALP, New South
Wales |
| Senator Alan Ferguson |
LP, South Australia |
| Senator Jeannie
Ferris |
LP, South Australia |
| Senator Michael
Forshaw |
ALP, New South
Wales |
| Senator Brian Gibson |
LP, Tasmania |
| Senator Brian Harradine |
Ind, Tasmania |
| Senator Ross Lightfoot |
LP, Western Australia |
| Senator Sue Mackay |
ALP, Tasmania |
| Senator Brett Mason |
LP, Queensland |
| Senator Julian
McGauran |
NPA, Victoria |
| Senator Kerry O’Brien |
ALP, Tasmania |
| Senator the Hon
Warwick Parer |
LP, Queensland |
| Senator Marise
Payne |
LP, New South Wales |
| Senator John Quirke |
ALP, South Australia |
| Senator John Tierney |
LP, New South Wales |
| Senator John Watson |
LP, Tasmania |
| Senator Sue West |
ALP, New South
Wales |
REPORT ON PROPOSALS FOR CHANGES TO THE WELFARE SYSTEM
Terms of Reference
1.1 On 21 October 1999 the Senate referred the following matter to the
Community Affairs References Committee for inquiry and report by 22 November
1999:
Proposals for changes to the welfare system contained in the document
referred to in the orders of the Senate of 30 September 1999 and 13
October 1999, and the compilation and treatment of that document, together
with the documents referred to in the order of the Senate of 19 October
1999.
1.2 In the same resolution, the Senate directed the Committee to hold
a public hearing on 12 November 1999, and on such other days as are
necessary to conclude the hearing on this matter. The Senate also directed
officers of the Department of Family and Community Services, who appeared
at the estimates hearing of the Community Affairs Legislation Committee
on 2 June 1999, to appear at the hearings of the Committee to give evidence
on the matter referred.
Background to the inquiry
1.3 On 29 September 1999, the Minister for Family and Community Services,
Senator the Hon Jocelyn Newman, delivered a speech at the National Press
Club on the future of welfare in the 21st century. Media reporting, based
on a background briefing by the Minister's office, had foreshadowed that,
in conjunction with the speech, the Minister would release a discussion
paper. The media had speculated about the possible policy content of the
speech and discussion paper.
1.4 However, in her speech, the Minister announced the establishment
of a Reference Group whose task would be `to guide the development of
a comprehensive Green Paper on welfare reform'. [1]
The foreshadowed discussion paper was not publicly released. In response
to a parliamentary question without notice later that day, the Minister
stated that she would not table the discussion paper and that `it is an
internal working document which will inform the work of the reference
group'. [2]
1.5 On 30 September, 13 October and 19 October 1999 the Senate agreed
to resolutions ordering the Minister to table the discussion paper and
various documents relating to the discussion paper. On 12 October, the
Minister advised the Senate that:
On the issue of the discussion paper, I regret that I am not in a position
to give any discussion paper to the Senate today. It is still being
developed as the government's submission to the reference group, and
it will be completed shortly. As soon as it is complete, I shall give
it to the reference group, and I am happy to give it to the Senate at
the same time. [3]
The resolution of 13 October also censured the Minister `for her contempt
of the Senate in failing to comply with an order made on 30 September
1999'. Copies of the Senate resolutions are at Appendix 1.
1.6 On 21 October 1999, the Senate referred the matter to the Committee
and directed officers of the Department to appear at a public hearing
on 12 November to give evidence. Prior to this hearing, on 9 November,
the Minister presented to the President of the Senate, Senator Reid, a
discussion paper entitled The Challenge of Welfare Dependency in the
21st Century that had been prepared for provision to the reference
group. The Minister argued that the presentation of the Discussion Paper
met the requirements of the relevant orders of the Senate of 30 September,
13 and 19 October 1999. [4] The discussion
paper was also released electronically on the same day. A detailed chronology
of events is at Appendix 2.
Appearance of officers
1.7 During the week before the Committee's hearing, the Department requested
that the Committee give consideration to excusing from attendance at the
hearing on 12 November certain officers who had appeared at the estimates
hearing on 2 June 1999. This included the Secretary to the Department,
Dr David Rosalky, who was addressing the ACOSS national conference and
other officers who were not available on the day or had not been involved
in the preparation of the discussion paper.
1.8 The Committee agreed that, subject to any further direction of the
Committee or the Senate, the officers as requested by the Department would
be excused. The Committee further agreed that only those officers which
the Department had indicated might be of assistance to the Committee's
inquiry would be required to attend the hearing. The list of the officers
who appeared at the hearing on 12 November is at Appendix 3.
Claim of public interest
immunity
1.9 On 11 November 1999, the Committee received a letter from Senator
Newman concerning the public hearing to be held the next day. The Minister
indicated that she would be claiming public interest immunity in respect
of certain documents and information. The letter set out the basis on
which the claim would be made. The Committee sought the advice of the
Clerk of the Senate regarding the Minister's claim of public interest
immunity and the effect of the claim on the Committee's hearing. The Minister's
letter and the Clerk's advice are at Appendices 4 and 5.
1.10 Following receipt of the Clerk's advice, the Committee sought clarification
from the Minister as to whether she had issued a direction to departmental
officers in relation to the production of documents or the answering of
questions at the hearing. A response to this request was received from
the Minister's Chief of Staff, Mr Nockles, on behalf of the Minister
immediately before the hearing on 12 November. The response indicated
that a direction had been issued and that `the Minister's direction applies
only to the content of or copies of documents that are covered by her
claim of public interest immunity. The Minister's direction is that this
material is not to be provided to the Committee.' A copy of the response
is at Appendix 6.
1.11 At the hearing, the Committee sought to establish how the direction
had been conveyed to the Department. The Department indicated that the
direction was conveyed in two ways: first, that on 9 November a discussion
took place between the Minister, Dr Rosalky and other Departmental officers
`about this issue of the previous drafts of the document and the contents';
and secondly `by way of reference to the minister's letter [dated 11 November]
which made reference to the fact that the minister was seeking public
interest immunity'. [5] The Departmental Deputy
Secretary, Mr Jackson, advised the Committee that:
I think the letter from Mr Nockles this morning identifies that there
are issues where we may be able to assist the committee in terms of
the process and general comments associated with previous drafts. We
may be able to provide factual background material to assist the committee
in understanding the issues involved raised in the document. Clearly,
we will not be able to comment on deliberations of a policy nature in
terms of advice provided by us to the minister. Nevertheless, there
are matters where we can be of assistance. [6]
1.12 The Minister indicated in her letter to the Committee that claims
of public interest immunity would be made in respect of two categories
of documents and information. First, `draft discussion papers on possible
welfare reform in existence on or before 29 September 1999' - the date
of the Minister's speech on the future of welfare in the 21st century.
Secondly, `draft discussion papers on possible welfare reform brought
into existence between 29 September 1999 and 9 November 1999,
when the paper Discussion Paper - The Challenge of Welfare Reform in
the 21st Century was presented to the President of the Senate'. [7]
1.13 The public interest immunity claim in relation to the first category
of documents and information was based on two grounds:
- disclosure of this material would be likely to prejudice ongoing policy
consideration, including consideration by other ministers, their departments
and Cabinet; and
- presentation of earlier drafts, while not substantially different
to the finalised document, will give rise to unnecessary speculation
and would be likely to confuse the public debate as they were not finalised
and do not have the status of official government documentation.
The public interest immunity claim in relation to the second category
of documents and information was on the basis that `the discussion paper
presented on 9 November 1999 was approved by Cabinet for presentation
and the drafts and other documents leading up to the final version of
the paper are Cabinet-in-Confidence documents'. [8]
1.14 In evidence, the Department argued that the claim in relation to
the first category of documents `goes fundamentally to the nature of the
relationship between the bureaucracy and ministers and the difficultly
created for that relationship in the event that all internal working papers
might be required to be tabled'. [9]
1.15 The Clerk of the Senate's advice to the Committee on the Minister's
claim has been included in this report. The Committee notes that the Clerk
has stated that as the Senate has directed the Committee to hold the inquiry
`any claims of public interest immunity in respect of matters encompassed
in the inquiry directed by the Senate may only be referred to the Senate
for determination'. [10]
1.16 However, the Committee notes the Clerk's comments in relation to
the Minister's claim relating to the first category of documents that
the Minister's letter `does not clearly identify the harm to the public
interest which it is apprehended would ensue from disclosure of the first
category of documents'. Further, that:
The two stated grounds in relation to these documents are not among
the established grounds for public interest immunity claims, and I have
not heard of them before. I do not know what “prejudice ongoing
policy consideration” or “confuse the public debate”
means or what harm to the public interest is intended to be conveyed
by those expressions. Perhaps “prejudice ongoing policy consideration”
means that ministers and their advisers might be hindered in making
decisions if the public knows the subject of the decisions and what
has been said about that subject. This appears to be somewhat similar
to the “candour of advice” argument, that advice will not
be given candidly if it becomes publicly known. This argument has generally
been given short shrift by the courts when raised in proceedings before
the courts in recent times. I am not able to speculate what “confuse
the public debate” might refer to. [11]
1.17 In relation to the second category of documents, the Clerk noted
that one of the established grounds for a claim of public interest immunity
is that the disclosure of information would reveal the deliberations of
cabinet. The Clerk stated that `the immunity is generally held to apply,
however, only to information which would reveal the deliberations of cabinet,
not to any information which has simply been placed before, or required
to be produced by, cabinet. It is not clear that the documents referred
to by the minister actually record cabinet deliberations.' [12]
1.18 The Committee attempted to establish the time at which the draft
discussion paper `was going through a cabinet process'. Mr Jackson stated:
Just to clarify, prior to 29 September there was no cabinet process
involving the paper. My understanding is that the Senate resolutions
were agreed to on 30 September and 13 October, during which time this
was subject to a cabinet process. [13]
Mr Tune, an Executive Director in the Department, added:
My understanding—and I certainly was not privy to a lot of the
discussions going on—is that the minister and the Prime Minister
had a discussion prior to the speech, at which time it was agreed that
a different approach would be taken. From that point onwards, we were
informed that the discussion paper would be looked at and there would
be discussions with the minister's colleagues and that would be handled
via a cabinet process. [14]
And:
I guess, in effect, it is from that point of the 29th onwards because
of the change of approach that had been taken. From our point of view,
I was certainly working on the basis that, from that point on, I was
working towards a cabinet process and finalising the discussion paper
in that context. [15]
1.19 The Committee notes that the public interest immunity claim that
disclosure of the drafts in existence before 29 September could prejudice
consideration by cabinet is inconsistent with the above evidence that
prior to 29 September there was no cabinet process involving the discussion
paper.
Development of the discussion
paper
1.20 In evidence, the Department provided the Committee with the detail
of the development of the discussion paper and events leading up to the
presentation to the President of the Senate and public release of the
discussion paper entitled The Challenge of Welfare Dependency in the
21st Century by the Minister on 9 November 1999.
1.21 The Department confirmed that it had been involved with the preparation
of the discussion paper on welfare reform and the Minister's speech throughout
September. [16] The Minister's office was responsible for managing
the process, with the Department providing an initial draft of both to
the Minister's office and having subsequent input to amendments. [17]
1.22 The Department initially indicated at the hearing that it was unaware
of the involvement of any other Ministers' offices contribution to the
draft. However, during the hearing, Mr Tune stated that `the minister's
office have recently indicated to me that there were further discussions
prior to the 29th but I had not been aware of those until I was told about
them today'. [18] In later evidence Mr Jackson
advised:
I clarified with the minister's office at lunchtime that the Prime
Minister's office had been involved in discussions throughout the process
of development, that the minister's office had been in contact with
the Prime Minister's office throughout that process. I think that may
be a relevant piece of background there. [19]
1.23 Initially, the Minister was to have made a speech at the National
Press Club on 21 September. However, Mr Tune indicated that it was
his understanding that as there would not be any broadcast of the National
Press Club speech on 21 September, the speech was postponed until 29 September.
[20] As noted earlier, there was an expectation
that the discussion paper would be released in conjunction with this speech.
1.24 On the weekend of 25-26 September, various reports appeared in the
media, in particular the Courier Mail and Sun-Herald, relating
to proposals for welfare reform. Those reports canvassed detailed options
for change to the welfare system including reducing the age limit for
a qualifying child from 16 years to 12 years for parenting payment. [21]
1.25 The Committee asked the Departmental officers if they could explain
the source of these newspaper articles. Although officers initially claimed
not to know where the stories originated from, the Committee was subsequently
informed that the Minister's office had `done some backgrounding of journalists
about the speech and to expect some press coverage over that weekend'.
[22]
1.26 Mr Tune indicated that on 28 September the Department had a discussion
paper in a form that would have allowed its release the following day,
in conjunction with the Minister's speech at the National Press Club.
[23] However, Mr Jackson stated that on 28
September, through the Minister's office, `we were told that we would
not do further work to bring it to finalisation for release' [24] and that a new approach was being adopted with
the establishment of the Reference Group. Mr Jackson noted that the Minister:
…had had a discussion with the Prime Minister in which it was
agreed prior to the 29th that there would be a wider process and that
therefore the document would need to be developed along lines that reflected
that…Clearly, that was the process leading to the establishment
of the reference group and the processes surrounding that. [25]
1.27 The Department also advised that it was informed that `the discussion
paper would be looked at and there would be discussions with the minister's
colleagues and that would be handled via a cabinet process'. [26]
The Minister's speech proceeded but it now included the announcement that
a Reference Group would be established with Mr Patrick McClure, CEO
of Mission Australia, appointed as the Group's chair. The Group would
also have representatives from the community sector, business, academia
and government.
1.28 Following the Minister's speech, the Department continued to work
on the discussion paper with the Minister's office. The Department indicated
that:
…the minister's office had carriage and responsibility for the
paper. We were making input; they were talking to the offices of the
minister's colleagues in obtaining input also. The process we were going
through was one of refinement of the earlier document that remained
substantially the same. [27]
And:
…the process was one of refinement of the document at each stage,
and the document remained substantially similar. There were stylistic
changes but its ambit of coverage remained the same. [28]
1.29 Subsequent questioning revealed that the paper was worked on by
various people and that there was input from offices of three Ministers,
including the Prime Minister. [29] The paper was also added to, including the addition
of a graph and reference to the Reference Group. This process indicates
input from a variety of sources. However, Mr Tune described the changes
as `largely stylistic because they were developing some of the more general
statements that were made…[He continued that] there was additional
information added to give a better context and some background information
to develop some of the points that existed and still remained in the paper,
so we were embellishing some of the discussion'. Material was also deleted
from the paper including the original forward from the Minister and a
box indicating that people could make comment on the paper. [30]
1.30 On Monday, 8 November, Dr Rosalky wrote to the Minister indicating
that the Department considered that it would be desirable for the discussion
paper to be made publicly available before the Committee's hearing. [31] As noted earlier, the Minister presented the
document to the President of the Senate on 9 November 1999.
1.31 Mr Tune, commenting on the development of the discussion paper,
stated that:
My view is that, almost from the beginning, from the first draft through
to the final draft, it was not substantially different. Obviously, words
were changing. When we moved from it being a discussion paper to be
released with the speech to it being a discussion paper to come from
the government, we took out a foreword by Senator Newman that had been
there. There was a box in the original one leading up to 29 September
to provide a mechanism for people to provide comments on it. Of course,
that was overtaken by the use of the reference group to provide community
input. Changes like that were made but, certainly, as Mr Jackson said,
the ambit of the issues that were covered did not change at all through
the course. [32]
1.32 The Department emphasised that the discussion paper was not a policy
document. Mr Tune stated that `there were no policy initiatives in the
discussion paper'. [33] Mr Jackson also stated that `in the way that
the paper presents now, it was never proposing policy positions as such'.
[34] Mr Jackson noted that in relation to the
discussion paper `the ambit of the issues covered in the current publicly
released document is not different from the ambit of those issues covered
in the earlier documents'. [35]
Proposals for changes to the welfare
system contained in the Discussion Paper
1.33 The Committee discussed a range of issues relating to the discussion
paper, The Challenge of Welfare Dependency in the 21st Century.
In regard to parenting payment, the Committee questioned Departmental
officers as to whether the option of lowering the qualifying age for a
child from the current age of 16 years to 12 years for parents in receipt
of the payment was ever canvassed in previous drafts of the discussion
paper. [36] Mr Jackson responded that the issue
had not been raised in these specific terms. [37]
In the published discussion paper reference is only made to the fact that
`it may be appropriate to look at the age limit for a qualifying child'.
[38] Mr Jackson commented that:
The current paper raises the qualifying age of a child as one of a
series of issues in the same way that other versions of the paper have
– that is, the government feels that the reference group might
want to give consideration to it amongst a range of related issues and
is looking for advice. By the very nature of the discussion paper that
was always the form in which these issues were raised. [39]
1.34 The option of reducing the age limit for a qualifying child from
16 years to 12 years as well as other specific changes to the welfare
system was raised in the press articles of 25-26 September referred to
earlier. The information in the articles was attributed to a `spokesman
for Senator Newman'. The Courier Mail article said `the discussion
paper would “air a range of options” to address pockets of welfare
dependency'. [40] This was prior to the Minister's speech to the
National Press Club on 29 September.
1.35 The Committee also raised issues related to the disability support
pension (DSP). [41] In particular, the Committee
noted that the issue of the adequacy of the DSP is not addressed in the
discussion paper. In response, Mr Tune conceded that while the Department
regularly undertakes research on adequacy issues `I do not think that
it is the focus of this particular exercise'. [42] Mr Jackson commented that:
The paper put forward a range of issues that the reference group may
wish to consider. Of course there will be other issues which it may,
in its own right, wish to consider and which it may well receive submissions
from other organisations to consider, and they could well include the
sorts of things you have indicated. [43]
1.36 Mr Jackson implicitly conceded that issues of adequacy will be limited
by the need to operate within current fiscal constraints – `the paper,
in its introduction, makes clear that the purpose is not to add to the
overall welfare bill…that provides some sort of framework within
which we had been thinking about these issues'. [44]
1.37 The Committee also raised the issue of mutual obligation and the
measures that the Government has in place to assist DSP recipients. Mr
Wight, Executive Director, Economic and Social Participation Cluster,
responded that while the Department monitors trends in relation to increases
in the numbers of people in receipt of DSP it had `not done an enormous
amount of work about what work is available for them'. [45]
1.38 The Committee also questioned the Department as to whether costings
had been undertaken in relation to measures canvassed in the discussion
paper or earlier versions of the paper. Mr Jackson advised that no costings
had been undertaken nor any assessment in relation to socio-economic groups
or an assessment of the impact of the issues canvassed on an electorate
basis. [46]
1.39 As noted above, the Department emphasised that the discussion paper
was not a policy document. It is the task of the Reference Group on Welfare
Reform to provide advice to enable the Government to develop a Green Paper
on welfare reform. [47] The review of the welfare
system will consider the broader application of mutual obligation, demographic
changes, sustainability of the current system and the particular incentive
effects associated with the design of social security payments. An interim
report from the Reference Group will be provided to the Minister early
in the year 2000, with the final report to be provided to the Minister
by 30 June 2000.
1.40 The Reference Group met on 4 and 5 November to discuss matters relating
to their terms of reference. The Group did not receive the discussion
paper until 9 November, being the same document that was presented
to the President of the Senate and electronically released on the same
day. [48]
Conclusions
1.41 The Committee has considered carefully the evidence put forward
by the Department in relation to the content of the draft discussion paper
and the changes made to that paper from its initial draft to that which
was publicly released on 9 November. The Department has been steadfast
in its view that `the process was one of refinement of the document at
each stage, and the document remained substantially similar. There were
stylistic changes but its ambit of coverage remained the same.' [49]
1.42 However, the Committee considers that this view is undermined by
the Minister's refusal to make public the earlier drafts of the discussion
paper. If there were so few changes to the paper, why not comply with
the orders of the Senate and table the earlier drafts? The Committee considers
that if the draft is so similar to the released document, then it is difficult
to accept that the `it would give rise to unnecessary speculation' argument
as stated by the Minister in her claim of public interest immunity has
any validity. Committee members during the course of the public hearing
commented upon the apparent logical inconsistency of this position. [50]
1.43 The Committee has also noted the Clerk of the Senate's comment that
he had not heard of the grounds for public interest immunity proffered
by the Minister as being `among the established grounds for public interest
immunity claims'. Based on the evidence given and with access to earlier
drafts of the discussion paper denied, the Committee is of the view that
the Minister's claims for public interest immunity are without validity.
However, the Committee also acknowledges the Clerk's advice that this
is a matter for determination by the Senate.
Senator the Hon Rosemary Crowley
Chair
November 1999
MINORITY REPORT
OF GOVERNMENT SENATORS
on the Senate Community Affairs References Committee Inquiry
into Proposed Changes to the Welfare System.
- This Inquiry was initiated by the combined votes of the Australian
Labor Party and the Australian Democrats in an effort to obtain confidential
working documents from Minister Newman relating to a comprehensive review
of the Social Welfare System.
- Interestingly, the Australian Democrats were unrepresented at the
Inquiry hearing. Nevertheless, the Opposition Senators maintained a
persistent party political line of questioning, by inferring that the
discussion paper was originally a government policy document making
specific recommendations for cuts to welfare, and by claiming that the
Opposition somehow had a right to have access to department confidential
working documents. (It is worth noting here that when in government
the Labor Party never provided such documents to the Senate, or to a
Committee.)
- We strongly dissent from the conclusions drawn by the Opposition Members
of the Committee presented as Paragraphs 1.42 and 1.43 of the draft
Chair’s Report.
- Specifically, the view put in Paragraph 1.42, that since the earlier
drafts were very similar to the final version then there should be no
public interest claim to their release, is so lacking in logic as being
frivolous. It is noted that the Minister’s concern with public
interest is with the principle of confidentiality of government working
documents. This is a matter of general principle. To argue, as the view
expressed in Paragraph 1.42 does, that confidentiality in general must
be justified in a particular case by a demonstrated need for confidentiality
in that case, is plainly wrong.
- In Paragraph 1.43, it is argued from the Clerk of the Senate’s
comment that "he had not heard of the grounds for public interest
immunity …. as being among the established grounds for public immunity
claims", therefore the Minister’s claim for public interest
immunity is without validity. In our view this argument is a misinterpretation
of the Clerk of the Senate’s carefully worded opinion, to draw
a distinction between parliamentary confidentiality and executive government
confidentiality. The Minister’s claim for public interest immunity
is clearly stated to be in the domain of executive government functions.
It is therefor entirely valid.
- We accept the narrative components of the Report as being a fair description
of the background and proceedings of the Inquiry conducted on 12 November
1999. However, we believe the following points are salient to the issue
at hand.
- We note that the Chair’s Report notes acknowledges that the genesis
of this Inquiry was media speculations (Paragraph 1.3). What the Report
fails to add was that it was the Opposition in the Senate that inspired
such speculation by repeatedly suggesting, in the absence of any evidence,
that there were going to be welfare cuts promoted and announced by the
Minister. When this did not happen, as the paper announced was only
a discussion paper and not a policy document, the Opposition continued
to whip up speculation that such cuts were imminent.
- A Graphic illustration of this behaviour by the Opposition members
of the Committee is contained in the Chair’s Report (Paragraph
1.34).. The Opposition’s claims were refuted in the hearing by
a direct quote from an article of the Courier Mail of the weekend of
25-26 September 1999 referred to in the Report, which read "A spokesman
for Senator Newman, who refused to detail the issue, said
the discussion paper would air a range of options." The Opposition
nevertheless persists to claim that the policy proposals were discussed
in details, by ignoring the import of the six words in the article highlighted
above.
- We note that a large number of senior officers of the Department attended
the Inquiry to give evidence, although the Report refers only to Mr
Jackson and Mr Tune. We note further that notwithstanding more than
four hours of continuous "grilling" by the Opposition members
of the Committee, these officers were consistent in their evidence –
where it related to the drafting of the discussion paper, the statistics
referred and analysed in the paper, or to inter-departmental liaison
in the course of preparation of the paper – that as at 29 September
1999, there was not a finalised version of the discussion paper in existence
(Paragraph 1.25). This evidence completely verifies the Minister’s
statement to the Senate on 29 September 1999. These officers’ evidence
further verifies that between 29 September and 8 November 1999, the
Department continued with refinement of the discussion paper (Paragraph
1.30). The Minister presented the paper to the President of the Senate
on 9 November 1999.
- The officers’ evidence was also consistent in its emphasis that
the discussion paper was not a policy paper at any stage of its preparation
(Paragraph 1.32). In the face of this evidence, the Opposition members
of the Committee have apparently abandoned any further unfounded suggestion
that the Minister had intended to announce major changes in welfare
policies in her speech to the National Press Club on 29 September 1999.
We are of the view that this Report should acknowledge this conclusion.
- The officers’ evidence also states that the earlier drafts of
the paper contain description of a consultation process which is now
superseded by the establishment of the Reference Group (Paragraph 1.29).
We are of the view that this verifies the Minister’s long-stated
contention that the establishment of the Reference Group has not been
an after thought.
- We believe that Paragraph 1.19 is both irrelevant to the Inquiry,
and is wrong in fact. It should be deleted.
- Finally, it is the view of the Government Senators that this whole
Inquiry was all about frightening welfare recipients for political gains.
We consider the inference drawn by the Opposition (Paragraph 1.42) that
the departmental officers have been less than honest while under oath
is utterly objectionable. If this matter is pursued further it will
be even more clear that the Opposition has made such a serious accusation
against the officers who gave consistent evidence throughout the duration
of the hearing.
Senator Sue Knowles, Deputy Chairman
(LP, Western Australia)
Senator Tsebin Tchen
(LP, Victoria)
Appendix 1 - Resolutions of the Senate
Extract, Journals of the Senate, 30 September 1999
12. WELFARE REFORM—ORDER FOR PRODUCTION OF DOCUMENT
That the Senate—
(a) notes that the Minister for Family and Community Services (Senator
Newman) will be providing a discussion paper to her newly-established
reference group developing a green paper on welfare reform;
(b) supports the notion of an open, public and wide-ranging community
debate on the future of Australia's welfare system; and
(c) requires that the discussion paper mentioned in (a) be laid
on the table no later than 3 pm on 12 October 1999.
Extract, Journals of the Senate, 13 October 1999
4. MINISTER FOR FAMILY AND COMMUNITY SERVICES—CENSURE—ORDER FOR
PRODUCTION OF DOCUMENT
That the Senate:
(a) censures the Minister for Family and Community Services (Senator
Newman) for her contempt of the Senate in failing to comply with
an order made on 30 September 1999, that a document, namely the welfare
reform discussion paper originally prepared for her Press Club speech on
29 September 1999, and now being provided to the Minister's
newly-established reference group on welfare reform, be tabled by
3 pm on 12 October 1999; and
(b) resolves that the Minister purge the contempt in which she has
held the Senate by tabling the document on or before 3 pm on 18 October
1999.
Extract, Journals of the Senate, 19 October 1999
8. WELFARE REFORM—ORDER FOR PRODUCTION OF DOCUMENTS
That the Senate—
(a) notes that, in the interests of an open and informed public
debate on social welfare reform, the Minister for Family and Community
Services (Senator Newman) should provide all documents relating to
the proposed social welfare changes outlined in the discussion paper
that she was to have released during her speech on 29 September 1999;
and
(b) requires that the Minister lay on the table, no later than 3
pm on 20 October 1999, all documents prepared by the Department of
Family and Community Services relating to the social welfare changes
outlined in the discussion paper or the paper itself, including:
(i) any assessment of the impact of the proposed social welfare
changes on each federal electorate,
(ii) any assessment of the impact of the proposed social welfare
changes on various socio-economic groups, and
(iii) any costings or modelling done on the proposed social welfare
changes.
Appendix 2 - Chronology of Events
Note: The chronology is based on evidence given at the
Committee's hearing of 12 November 1999
September 1999: Department of Family and Community Services involved
in the preparation of a discussion paper on welfare reform and the Minister's
speech on the future of welfare in the 21st century to be delivered to
the National Press Club.
21 September 1999: Original date for the Minister for Family and
Community Services, Senator the Hon Jocelyn Newman's, original National
Press Club speech. Subsequently deferred until 29 September.
25 & 26 September 1999: Articles in Courier Mail and
Sun-Herald report on purported changes to the welfare system to
be detailed in the discussion paper to be presented by the Minister at
the National Press Club on 29 September.
28 September 1999: Department of Family and Community Services
advised that discussion paper on welfare reform is to be withdrawn from
release by the Minister.
Department also informed of establishment of Reference Group on Welfare
Reform. The Reference Group is to conduct a review of welfare dependency.
29 September 1999: Minister delivers speech to National Press
Club on the future of welfare in the 21st century.
Minister also announced the establishment of a Reference Group, to be
chaired by Mr Patrick McClure, Chief Executive Officer of Mission Australia,
to provide advice to Government in the development of a Green Paper on
welfare reform.
Post - 29 September 1999: Discussion paper to be provided to reference
group now becomes subject to formal Cabinet proces. Offices of the Prime
Minister and the Minister for Employment and Workplace Relations involved
in `developmental work' on the discussion paper in conjunction with Minister
Newman's office.
30 September 1999: The Senate agreed to a resolution requiring
the Minister to table the discussion paper on welfare reform to be provided
to the Reference Group, by 12 October.
12 October 1999: Terms of reference for the Reference Group tabled
in the Senate. The terms of reference include providing options to the
Government for changes to income support arrangements and other associated
services aimed at reducing welfare dependency, having regard to the reform
principles established by the Government.
13 October 1999: Minister censured by the Senate `for her contempt
of the Senate in failing to comply with an order made on 30 September'.
The Senate agreed to a resolution ordering the Minister to table the discussion
paper originally prepared for her Press Club speech by 18 October.
19 October 1999: The Senate agreed to a resolution requiring the
Minister to table documents relating to the proposed social welfare changes
by 20 October.
21 October 1999: The Senate referred proposals for changes to
the welfare system to the Community Affairs References Committee for inquiry
and report by 22 November. The Senate directed Departmental officers
to appear at a public hearing on 12 November to give evidence.
4 November 1999: Department requested the Committee to give consideration
to excusing certain officers, including the Secretary of the Department,
Dr Rosalky, from attendance at the public hearing of the Committee on
12 November.
First meeting of the Reference Group to discuss terms of reference.
8 November 1999: Committee agreed that, subject to any further
direction of the Committee or the Senate, that officers as requested by
the Department be excused from attendance at the hearing on 12 November.
Secretary of the Department advised the Minister that the discussion
paper on welfare reform should be released prior to the Community Affairs
References Committee hearing on 12 November.
9 November 1999: Minister presented the discussion paper on welfare
reform, entitled The Challenge of Welfare Dependency in the 21st Century,
to the President of the Senate. The Minister argued that the presentation
of the discussion paper met the requirements of the relevant orders of
the Senate of 30 September, 13 and 19 October. Discussion paper also presented
to the Chairman of the Reference Group, Mr McClure, and released electronically.
11 November: Letter from the Minister to the Committee concerning
the public hearing of 12 November indicating that the Minister would be
claiming public interest immunity in respect of certain documents and
information.
Advice to Committee from the Clerk of the Senate regarding the Minister's
claim of public interest immunity and the effect of the claim on the Committee's
hearing.
12 November 1999: Letter from the Minister's Chief of Staff to
the Committee concerning the appearance of Departmental officers at the
Committee's hearing.
Community Affairs References Committee conducts public hearing into the
reference.
Appendix 3 - Witnesses Who Appeared Before the Committee at the Public Hearing
Friday, 12 November 1999, Senate Committee Room 2S3, Parliament
House, Canberra
Department of Family and Community Services
Mr Wayne Jackson, Deputy Secretary, Family and Strategic Policy
Mr John Powlay, Assistant Secretary, Performance, Ministerial and Public
Relations
Mr Michael Sassella, Executive Director (Legal)
Mr David Tune, Executive Director, Strategic Framework and Coordination
Mr Barry Wight, Executive Director, Economic and Social Participation
Cluster
Ms Peta Winzar, Assistant Secretary, Parenting Payment and Labour Market
Programs
Branch
Appendix 4 - Correspondence from Senator the Hon Jocelyn Newman, Minister for Family
and Community Services
[Transcript from original, dated 11 November 1999]
MINISTER FOR FAMILY AND COMMUNITY SERVICES
MINISTER ASSISTING THE PRIME MINISTER FOR THE STATUS OF WOMEN
Ms Christine McDonald
Acting Secretary
Community Affairs Reference Committee
Australian Senate
Parliament House
CANBERRA ACT 2600
Dear Ms McDonald
I am writing in connection with the public hearing to be conducted by
the Senate Community Affairs Reference Committee in Canberra on 12 November
1999. I understand that the Committee may ask officials from the Department
of Family and Community Services present at the hearing to comment on
the content of, or to provide copies of, draft discussion papers on possible
welfare reform in existence on or before 29 September 1999.
In accordance with paragraphs 2.28 and 2.29 of the Government Guidelines
for Official Witnesses Before Parliamentary Committees and Related Matters
(1989), I am writing to advise that I will be claiming public interest
immunity in respect of the documents and information described in the
first paragraph of this letter.
This is on the basis that:
- disclosure of this material would be likely to prejudice ongoing policy
consideration, including consideration by other ministers, their departments
and Cabinet; and
- Presentation of earlier drafts, while not substantially different
to the finalised document, will give rise to unnecessary speculation
and would be likely to confuse the public debate as they were not finalised
and do not have the status of official government documentation.
I also understand that the Committee may ask officials from my department
present at the hearing to comment on the content of, or to provide copies
of, draft discussion papers on possible welfare reform brought into existence
between 29 September 1999 and 9 November 1999, when the paper Discussion
Paper – The Challenge of Welfare Reform in the 21st Century was
presented to the President of the Senate.
PARLIAMENT HOUSE
CANBERRA ACT 2600
In accordance with those paragraphs 2.28 and 2.29 of the above-mentioned
guidelines, I am writing to advise that I will be claiming public interest
immunity in respect of these draft discussion papers. This is on the basis
of paragraph 2.32(b) of the guidelines in that the discussion paper presented
on 9 November 1999 was approved by Cabinet for presentation and the drafts
and other documents leading up to the final version of the paper are Cabinet-in-Confidence
documents.
The content of this letter has been cleared by the Australian Government
Solicitor.
Yours sincerely
(Signed)
JOCELYN NEWMAN
11 NOV 1999
Appendix 5 - Correspondence from Mr Harry Evans, Clerk of the Senate
[Transcript from original, dated 11 November 1999]
hc/let/12639
11 November 1999
Ms Christine McDonald
Acting Secretary
Community Affairs References Committee
The Senate
Parliament House
CANBERRA ACT 2600
Dear Ms McDonald
INQUIRY BY COMMITTEE — WELFARE REFORM — LETTER FROM MINISTER
—CLAIM OF PUBLIC INTEREST IMMUNITY
Thank you for your letter of today's date which conveys the Community
Affairs References Committee's request for advice on the letter, also
of today's date, from the Minister for Family and Community Services,
concerning the public hearing to be held tomorrow by the committee, at
the direction of the Senate, in relation to welfare reform proposals.
Before proceeding to the specific questions asked by the committee, I
should note a point about the minister's letter.
Is there a ministerial direction to officers?
The minister states that she will be claiming public interest
immunity in respect of certain documents. It is not clear whether the
letter constitutes the statement of the claim, or whether the statement
of the claim is yet to be given. The minister does not indicate whether
she has instructed officers of her department, who are directed by the
Senate to appear at the hearing tomorrow, not to answer questions about,
or to produce, the documents in respect of which she has made, or will
be making, the claim of public interest immunity. Perhaps the committee
is intended to infer from the minister's letter that there is such an
instruction, but any instruction should be made explicit. This is important
because, unless there is a ministerial instruction to departmental officers
not to produce documents or to answer questions, those officers would
be individually responsible for any refusal to produce documents or to
answer questions. I suggest that the committee clarify whether there is
such an instruction by the minister and seek written confirmation of the
instruction.
The minister's reference to paragraphs 2.28 and 2.29 of the Government
Guidelines for Official Witnesses Before Parliamentary Committees and
Related Matters does not clear this matter up. That document provides
guidance for officers in dealing with parliamentary committees, and those
paragraphs merely state that only a minister can make a claim of public
interest immunity and that such a claim should be communicated to the
chair (not the secretary) of the committee before hearings.
I now turn to the particular questions asked by the committee.
Grounds for the claim of public interest immunity
The committee asked for advice on the grounds put forward by the minister
for the claim of public interest immunity and whether those grounds are
valid.
The basis of a claim of public interest immunity is that disclosure of
information which is the subject of the claim would be harmful to the
public interest. A ground for a claim consists of some specific harm to
the public interest which it is claimed would ensue from the disclosure
of the information in question.
The categories of harm to the public interest are well established and
normally there is no dispute about them. For example, one category of
apprehended harm to the public interest is prejudice to pending legal
proceedings. It is clearly not in the public interest for jurors or witnesses
to be influenced in their deliberations or evidence, such that matters
before courts are decided other than on the evidence and submissions before
the courts, or such that judges are forced to abort trials. There is no
disagreement that it is harmful to the public interest for such events
to occur. There may, however, be disagreement as to whether disclosure
of particular information would cause the apprehended harm. The other
established grounds for claims of public interest immunity are similarly
based on categories of harm to the public interest about which there is
little or no disagreement. Any disagreement is about their application
to particular information.
The minister states that she will be claiming public interest immunity
in respect of certain documents created before 29 September 1999 on the
basis that disclosure of the documents would:
- “be likely to prejudice ongoing policy consideration”, and
- “will give rise to unnecessary speculation and would be likely
to confuse the public debate”.
The minister states that she will be claiming public interest immunity
in respect of certain documents created after 29 September 1999 on the
basis that they are “Cabinet-in-Confidence documents”.
The minister's letter does not clearly identify the harm to the public
interest which it is apprehended would ensue from disclosure of the first
category of documents. The two stated grounds in relation to these documents
are not among the established grounds for public interest immunity claims,
and I have not heard of them before. I do not know what “prejudice
ongoing policy consideration” or “confuse the public debate”
means or what harm to the public interest is intended to be conveyed by
those expressions. Perhaps “prejudice ongoing policy consideration”
means that ministers and their advisers might be hindered in making decisions
if the public knows the subject of the decisions and what has been said
about that subject. This appears to be somewhat similar to the “candour
of advice” argument, that advice will not be given candidly if it
becomes publicly known. This argument has generally been given short shrift
by the courts when raised in proceedings before the courts in recent times.
I am not able to speculate what “confuse the public debate”
might refer to.
In relation to the second category of documents referred to by the minister,
one of the established grounds for a claim of public interest immunity
is that the disclosure of information would reveal the deliberations of
cabinet. The basis of this ground is that it is in the public interest
that cabinet should be able to deliberate freely and in secrecy because
of its pivotal role in what is usually called the system of responsible
government. The courts have recognised this as a ground for a claim of
public interest immunity which may be sustained by the courts when raised
in legal proceedings. The immunity is generally held to apply, however,
only to information which would reveal the deliberations of cabinet, not
to any information which has simply been placed before, or required to
be produced by, cabinet. It is not clear that the documents referred to
by the minister actually record cabinet deliberations.
In relation to the validity of the minister's grounds for the claim of
public interest immunity, only the Senate can determine the validity of
the grounds. Just as the courts have found that they will determine whether
a claim of public interest immunity in legal proceedings is sustained,
the Senate has indicated in the past that it will determine whether any
such claim is sustained in respect of information which the Senate or
its committees require to be produced.
Normally it would be for the committee concerned to determine in the
first instance whether a claim of public interest immunity is accepted.
In this case, however, the Senate has directed the committee to hold an
inquiry and has directed witnesses to appear and give evidence. In those
circumstances any claim of public interest immunity in respect of matters
encompassed in the inquiry directed by the Senate may only be referred
to the Senate for determination.
Effect of the minister's claim on the committee's hearing
The committee has asked for advice on the impact of the minister's claim
on the committee's hearing given the terms of reference of the committee,
whether the claim impedes the committee's inquiry and what line of questioning
the committee could pursue.
If departmental officers refuse to answer questions about the documents
in the two categories referred to in the minister's letter in accordance
with the minister's claim of public interest immunity, the committee can
only report that refusal to the Senate. This would effectively prevent
the committee, subject to any further directions from the Senate, from
asking further questions of the officers about those documents.
It would be open to the committee to regard the document, also referred
to in the minister's letter, presented to the President of the Senate
on 9 November 1999, entitled The Challenge of Welfare Dependency in
the 21st Century, as falling within the terms of reference contained
in the Senate's resolution of 21 October 1999. The basis for this is that
the committee has reason (including a statement in the minister's letter)
to believe that this document is substantially the document referred to
in the Senate's resolution. Questions could therefore be put to officers
concerning the content of that document and any matters which arise from
that document.
Please let me know if I can be of any further assistance to the committee.
Yours sincerely
(Signed)
(Harry Evans)
Appendix 6 - Correspondence from Chief of Staff, Office of the Minister for Family
and Community Services
[Transcript from original, dated 12 November 1999]
Office of the
MINISTER FOR FAMILY AND COMMUNITY SERVICES
MINISTER ASSISTING THE PRIME MINISTER FOR THE STATUS OF WOMEN
Senator the Hon. Rosemary Crowley
Chair
Community Affairs References Committee
Australian Senate
Parliament House
CANBERRA
Dear Senator Crowley
On behalf of the Minister I acknowledge receipt of your letter to the
Minister dated 11 November 1999 concerning the appearance of officers
of the Department of Family and Community Services at the Committee's
public hearing later today.
I have discussed your letter with the Minister who is not in Canberra
today. I can confirm that the Minister has issued a direction to officers
attending the hearing. The Minister's direction applies only to the content
of or copies of documents that are covered by her claim of public interest
immunity. The Minister's direction is that this material is not to be
provided to the Committee.
As I see it, however, the Committee can legitimately ask officers for
assistance and information about matters or aspects that are not covered
by public interest immunity, such as the process and general comments
associated with previous drafts of the Discussion Paper. Additionally,
in accordance with the Government Guidelines for Official Witnesses
Before Parliamentary Committees and Related Matters (1989) officials
can provide factual and background material to assist the Committee to
understand the issues involved and raised in the document (paragraph 2.25).
To this end I am informed that the department has acted to ensure that
officers best able to assist the Committee in these respects are in attendance.
Yours sincerely
(Signed)
ROD NOCKLES
Chief of Staff
12 November 1999
PARLIAMENT HOUSE
CANBERRA ACT 2600
Footnotes
[1] Senator the Hon Jocelyn Newman, Minister
for Family and Community Services, Speech to the National Press Club,
29 September 1999, p.8.
[2] Senate Hansard, 29.9.99, p.9153.
[3] Senate Hansard, 12.10.99, p.9443.
[4] Letter from Senator Newman to Senator Reid,
dated 9 November 1999.
[5] Committee Hansard, 12.11.99, pp.2,
5.
[6] Committee Hansard, 12.11.99, p.5.
[7] Letter from Senator Newman to the Committee,
dated 11 November 1999.
[8] Letter from Senator Newman to the Committee,
dated 11 November 1999.
[9] Committee Hansard, 12.11.99, p.6.
See also p.90.
[10] Letter from the Clerk of the Senate to
the Committee, dated 11 November 1999, p.3.
[11] Letter from the Clerk of the Senate to
the Committee, dated 11 November 1999, p.2.
[12] Letter from the Clerk of the Senate to
the Committee, dated 11 November 1999, p.3.
[13] Committee Hansard, 12.11.99, p.21.
[14] Committee Hansard, 12.11.99, p.23.
See also p.72.
[15] Committee Hansard, 12.11.99, p.25.
[16] Committee Hansard, 12.11.99, p.37.
[17] Committee Hansard, 12.11.99, pp.31,37.
[18] Committee Hansard, 12.11.99, p.36.
[19] Committee Hansard, 12.11.99, p.72.
[20] Committee Hansard, 12.11.99, pp.32-33.
[21] Committee Hansard, 12.11.99, p.53.
[22] Committee Hansard, 12.11.99, pp.
51,66-67.
[23] Committee Hansard, 12.11.99, p.38.
[24] Committee Hansard, 12.11.99, p.38.
[25] Committee Hansard, 12.11.99, pp.38-39.
[26] Committee Hansard, 12.11.99, p.23.
[27] Committee Hansard, 12.11.99, p.30.
[28] Committee Hansard, 12.11.99, p.30.
[29] Committee Hansard, 12.11.99, pp.69-70.
[30] Committee Hansard, 12.11.99, pp.70-72.
[31] Committee Hansard, 12.11.99, p.17.
[32] Committee Hansard, 12.11.99, pp.40-41.
[33] Committee Hansard, 12.11.99, p.51.
[34] Committee Hansard, 12.11.99, p.50.
[35] Committee Hansard, 12.11.99, p.62.
[36] Committee Hansard, 12.11.99, pp.51-53.
[37] Committee Hansard, 12.11.99, pp.51-52.
[38] Discussion Paper, p.21.
[39] Committee Hansard, 12.11.99, pp.51-52.
[40] M. McKenna, `Welfare Payment Cuts Loom',
Courier Mail, 25.9.99.
[41] Committee Hansard, 12.11.99, pp.77,80,82-83.
[42] Committee Hansard, 12.11.99, p.81.
[43] Committee Hansard, 12.11.99, p.77.
[44] Committee Hansard, 12.11.99, p.78.
[45] Committee Hansard, 12.11.99, p.83.
[46] Committee Hansard, 12.11.99, pp.77,84.
[47] Minister for Family and Community Services,
Media Release, `Government Announces Major Social Policy Reform
Agenda', 29.9.99; Discussion Paper, p.3.
[48] Committee Hansard, 12.11.99, p.45.
[49] Committee Hansard, 12.11.99, p.30.
[50] Committee Hansard, 12.11.99, pp.56,
65, 88-9.