Chapter 5
Conclusions
5.1
The Senate's powers to obtain evidence, and particularly to order the
production of government documents, are important mechanisms which enable it to
perform its constitutional role of scrutinising the actions of executive government.
It is essential that Senators have full access to as many government documents
and as much information as possible in order to fulfil their scrutiny role.
5.2
Although governments generally comply with the Senate's orders for the
production of documents, occasionally public interest immunity claims are
raised, in essence claiming that it is not in the public interest for the
documents or information to be produced. There is currently no mechanism to
resolve disputes which may arise if the Senate insists on its order. Nor are
there any procedures in place for determining whether a claim by the executive
for public interest immunity is justified.
5.3
The proposed process of independent arbitration, which was the basis of
this inquiry, seeks to shift the power to decide on release of government
documents from the executive and the Senate to a person independent of
government. In some respects, this idea is attractive, as it takes the decision
out of the hands of both the Senate and the executive, both of which have
vested interests in the outcome of the decision.
5.4
However, there are a number of practical barriers to the effectiveness
of independent arbitration processes, as has been demonstrated by the 'stalemate'
currently experienced in the Victorian Legislative Council. There are also a
number of ways in which both the Senate and executive government would be able to
potentially frustrate an independent arbitration system, which have arguably
occurred in NSW.
5.5
The Victorian experience shows that without a clear mandate for the
legislature to require privileged documents, the executive is under no
obligation and has little incentive to cooperate with an independent
arbitration process. Witnesses suggested that accordingly, a strong commitment
from both executive government and the Senate is required in order for
independent arbitration to work. However, the committee has doubts that such
commitment from any government would be forthcoming in the absence of an
obligation such as that on the NSW government arising from the Egan decisions.
5.6
If the Senate's powers were ever contested, it is probable that the
courts would find that, like the NSW Legislative Council, the Senate has
extensive powers to require documents. However, the committee agrees with the
longstanding approach of the Senate that the best mechanism to deal with any
conflicts is negotiation between the executive government and the Senate.
5.7
Furthermore, there are a range of flaws with the proposed order.
Firstly, there are no effective deterrents for non-compliance with the order. The
Senate has no remedies to enforce its powers against ministers who are members of
the House of Representatives; its penalties in the Senate, such as suspending
ministers from the chamber, are ineffective; and it would be unfair for the
Senate to punish public servants for following ministers' directions.
5.8
In addition, there are a number of ways in which an independent
arbitration process can be frustrated, which reduce the prospect of success of
any such process. This may also lead to an increase in the costs of an
arbitration process, as the committee heard has occurred in NSW.
5.9
Finally, the committee has strong reservations about specific aspects of
the proposed resolution. The committee considers that the proposed arbitration
process would be of limited use because the arbitrator does not have a right to
assess the documents themselves. The committee also has concerns about the
legality and appropriateness of the Senate delegating its powers in the manner
proposed, and about the proposed resolution's use of the Auditor-General to
arbitrate on commercial‑in‑confidence claims.
5.10
Accordingly, the committee recommends against the Senate adopting the proposed
process of independent arbitration over public interest immunity claims, and
against the resolution proposed by Senators Ludlam, Xenophon and Fielding.
Recommendation 1
5.11 The committee recommends against the Senate adopting the proposed
process of independent arbitration over public interest immunity claims.
Senator Cory Bernardi
Chair
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