Report


Introduction

Reference

1.1     On 12 May 2021, the President made a statement to the Senate regarding a letter he had received from Senators Patrick and Gallacher (attachment 1) alleging interference with the Economics Reference Committee inquiry into Australia's sovereign naval shipbuilding capability.1 Senators Patrick and Gallacher outlined occasions on which the Department of Defence, the Secretary of Defence, and the former Minister for Defence declined or refused to provide documents to the committee in response to committee requests and Senate orders. Senators Gallacher and Patrick contended that: "the committee's ability to progress the inquiry has been severely and deliberately impeded by the Department."

1.2     The President, applying the criteria set out in Privilege Resolution 4, determined that a motion to refer this matter to the Committee of Privileges should have precedence. Senator Patrick lodged notice of such a motion later the same day.2 On 15 June 2021, the Senate considered the motion and agreed to refer the following to the Committee of Privileges for inquiry and report:

1.3     Having regard to the matters raised by Senator Patrick in correspondence tabled by the President on 12 May 2021:

  1. whether any conduct of the former Minister for Defence, Senator Reynolds, or any other person amounted to an improper interference with the Economics References Committee inquiry into Australia's sovereign naval shipbuilding capability; and
  2. if so, whether any contempt was committed in respect of those matters.3

Role of the committee

1.4     As the committee noted in its 181st report, its role is to establish the facts of any allegations of contempt referred to it and to make findings and recommendations. It is not for the committee to determine whether a contempt has been committed, nor to impose a penalty for such a contempt: those are matters for the Senate to determine.4

1.5     In conducting an inquiry which relates to such allegations the committee is required to follow the procedures set out in Privilege Resolution 2. Specifically, if the committee considers that there are allegations against any person which warrant investigation as a possible contempt, then it must inform the person of the allegations made against them and the particulars of any evidence received in relation to the person. The person must be given reasonable opportunity to respond to those allegations.

Conduct of the inquiry

1.6     The committee commenced its inquiry by considering the documents submitted to the President by Senator Patrick and the first interim report of the Economic References Committee (presented on 28 May 2021).

1.7     The committee gathered additional evidence to help establish the relevant facts, inviting further comments and submissions from the References Committee, Senators Patrick and Gallacher; and, as the persons who might be the subject of allegations, Senator the Hon Linda Reynolds CSC (the former Minister for Defence) and Minister Payne (in her capacity as Minister representing the Minister for Defence).

1.8     Four submissions were received from Senator Gallacher, Senator Patrick, Minister Reynolds and Minister Payne. Submissions and correspondence received by the committee are at attachment 2.

1.9     Finally, the committee considered the second interim report of the Economic References Committee (presented on 28 February 2022).

Background

1.10    The events leading up to the referral of this matter to the committee are set out in the first interim report of the References Committee which included a chronology of the steps the References Committee and the Senate had taken to obtain information relevant to the inquiry.5

1.11    Briefly, the chronology noted that the References Committee made initial requests for unredacted versions of documents relevant to the inquiry in February and May 2020 which were declined by the Department of Defence in June 2020. The chair of the committee lodged a motion to order the Secretary of Defence to produce the documents to the Economics References Committee. The Senate agreed to that motion on 6 October 2020.6

1.12    The then Minister for Defence declined to provide the documents and made a public interest immunity claim centring on the commercial sensitivity of the documents.7 Minister Reynolds noted that:

The provision of tendered and contracted AIC [Australian Industry Capability] plans would adversely impact on the ability of the prime contractors to maximise Australian industry participation. It is incumbent on Defence to protect taxpayers' interests by ensuring the integrity of the commercially sensitive information contained in these documents. This is due to the potential impact on companies' ability to achieve value for money for the Commonwealth, as they are contractually obliged, including the devaluation of companies' supply chains and the intellectual property of pricing structures.8

1.13    The Minister expanded on the public interest immunity claim noting that:

It is appropriate and proper that the Government suitably consider the circumstances under which information is publicly released, where the release may have an impact on the national interest, including international relations, domestic industry, and where it may unfairly prejudice the commercial interest of an entity or, indeed, of the Commonwealth.9

1.14    On 11 November 2020, the Senate resolved not to accept the public interest immunity claim and ordered the minister to provide the documents to the committee. In doing so, the Senate affirmed that:

…the balance of the public interest lies in permitting the committee to conduct oversight of the conduct of the Department of Defence in delivering on the Government's commitment to maximise AIC in Australia's $139 billion shipbuilding program.10

1.15    In response to this order, heavily redacted versions of the documents were provided to the References Committee including one document which was more heavily redacted than a previous version of the document released under the Freedom of Information Act 1982 and already published on the committee's webpage.

1.16    The majority of the References Committee commented that:

It also appears that the Department is misusing legitimate grounds for withholding information—such as national security considerations—to hide information that is politically embarrassing or information that, on the face of it, demonstrates incompetency and/or inefficiency. In the process, it is impeding the work of this committee and others in discharging our duty to the Australian people.11

1.17    Government members of the References Committee made additional comments which expressed a divergent view arguing that it would not be in either Australia's national interest, or the commercial interests of participants, for such material to be publicly released. They went on to state that:

Coalition Senators believe the long-standing practice governing the roles, responsibility and privileges of parliament and its Committees [should] be adhered to by all government departments, and that… claims of public interest immunity should be correctly made at all times. However, Coalition Senators do not agree with the majority report that the Department and Executive have been deficient in this regard, particularly considering that the topics under discussion directly address matters of national security.12

Criteria for a finding of contempt

1.18    Under section 4 of the Parliamentary Privileges Act 1987, conduct does not constitute an offence against a House (that is, a contempt) unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member. As the committee noted in its 150th and 181st reports, this provision restricts the previously unrestricted category of acts which may be treated as contempts.13

1.19    In determining matters relating to contempt, the committee has the guidance of the Senate Privilege Resolutions.14 In particular, the committee is required to apply the three criteria set out in Privilege Resolution 3:

  1. Applied to the circumstances of this inquiry, the first of these criteria reserves the Senate's contempt powers for matters involving substantial obstruction of committee processes.
  2. The second criterion – regard for the existence of any other remedy – recognises that the Senate is generally reluctant to deal with conduct as a contempt where another, more appropriate, avenue for redress is available.
  3. The third criterion relates to the culpability of persons alleged to have committed a contempt by requiring the committee to consider whether they knowingly committed the act which may constitute a contempt and whether they had any reasonable excuse for doing so.

1.20    Privilege Resolution 6 is a non-exhaustive list of prohibited acts which may be treated by the Senate as contempts. Essentially, it operates as a caution of the types of conduct which may cause the Senate to invoke its power to punish contempts. Senators Patrick and Gallacher argued that the failure to provide information to the References Committee inquiry could constitute a contempt on three grounds, namely that it amounted to:

  • an improper interference with the free exercise by the committee of its authority or functions (Privilege Resolution 6(1));
  • disobedience of a lawful order of the Senate (Privilege Resolution 6(8)); and
  • a refusal or failure to produce documents in accordance with an order of the Senate (Privilege resolution 6(13)).

1.21    In addition to considering the statutory threshold for conduct to constitute a contempt and the guidance provided by the Privilege Resolutions, the committee had regard to the precedents provided by its earlier reports on matters giving rise to allegations of contempt, and the action taken by the Senate in relation to those reports. For example, the committee ‘now regards culpable intention on the part of the person concerned as essential for the establishment of a contempt.'15

Consideration of matters

Substantial obstruction

1.22    The inquiry powers of the Houses and their committees are essential to support the Houses obtaining the information they require to effectively perform their legislative and accountability functions. It cannot be doubted that a committee being unable to obtain information at the heart of a matter referred to it for inquiry could substantially obstruct the committee in the performance of its duties.

1.23    Senator Gallacher submitted that the failure of the government to provide information it had been ordered to produce to the References Committee obstructed the inquiry:

There were two major instances that impacted the ability of the committee to do their job as passed by the Senate. First, was the refusal to provide documents, as directed by the Senate through the Order of Production of Documents, on two occasions...

Second, was the fact that the committee received heavily redacted documents. In one case, a previously supplied document accessed through FOI was re-supplied to the committee with even heavier redactions than the first version.16

1.24    Senator Patrick supported this view submitting that: "There can be no doubt that the Committee's work has been obstructed by the refusal to provide the information subject to the order."17

1.25    However, in her submission to this committee, Minister Reynolds maintained that it was not in the public interest for the documents to be produced:

I reiterate that it remains the view of the Government that the disclosure of the commercially sensitive information requested would be detrimental to the national interest and would cause significant damage to the commercial interests of the Commonwealth in connection with these critical naval shipbuilding programs.

On this basis, with reference to the matters raised by Senator Patrick…, I submit that my conduct was at all times, reasonable and in good faith, and does not amount to improper interference with the SERC [the References Committee] inquiry into Australia's sovereign naval shipbuilding capability.18

1.26    Minister Reynolds further submitted that the government had sought to provide as much information as possible to the References Committee inquiry:

In coming to the view that the requested information could not be released as requested, I consulted extensively with the Department and acted in good faith to support the release of as much information as could reasonably occur, without revealing sensitive commercial information or compromising national interest.

To assist the SERC in it's inquiry I also extended an invitation to voting members to receive a private briefing from the Department on the requested documents, including the opportunity to view the un-redacted documents subject to some minor conditions.

The Chair of the SERC did not accept this invitation.19

1.27    While the Minister characterised the conditions on access to the documents as "minor", clearly they were not acceptable to the References Committee.

Other remedies

1.28    Under Privilege Resolution 3, the committee is required to consider whether there is another, more appropriate, remedy available (other than the Senate's power to investigate and punish contempts).

1.29    Senator Patrick submitted that, in the circumstances where a failure to comply with a Senate order had delayed a committee making its final report, the power of the Senate to punish contempts was the appropriate remedy. More specifically he argued that the committee should find that both Minister Reynolds and the Secretary of Defence had committed a contempt:

The Privileges Committee should find that a contempt has occurred and should impose an appropriate sanction in relation to the obstruction of the Committee's work. The Privileges Committee should also recognise the systematic 'push back' occurring between the Executive and the Senate more broadly and respond to it accordingly.20

1.30    Expressing similar frustrations, Senator Gallacher noted that:

Throughout my time in the Senate, it has been my observation there has been a decline in the standards of public accountability, whether in this experience or through continued lack of timely, accurate and fully disclosed documents or responses to Senators. The fact that Senators have more success receiving information through FOI requests than through the processes of the Parliament is unacceptable and must now be addressed.21

1.31    However, Senator Gallacher suggested a different remedy recommending that:

[T]he Privileges Committee suggest to the ANAO to conduct a Performance Audit to report to the Finance and Public Administration Committee on the ten largest Departments to assess whether they are complying with their obligations to respond to the Senate and its Committees in a timely and accurate [manner] with full disclosure.22

1.32    In relation to negotiations between the References Committee and the government for access to the documents, both the former Minister and Minister Payne advised the committee that the References Committee had been offered access on particular conditions.23 Minister Payne advised in July 2021 that the government remained willing to provide access:

I can advise the Committee that this invitation to view the un-redacted documents in a secure location at Parliament House remains open.24

1.33    The committee considered the most obvious alternative remedy in this case was the provision of the documents to the References Committee on terms that allowed it to proceed with the inquiry. It therefore sought advice from Minister Payne and the Chair of the Economics References Committee as to whether arrangements had been agreed to provide access to the documents to the committee on such terms.

1.34    Minister Payne wrote to the committee on 19 November 2021 noting that:

Unfortunately, at this stage, the Minister for Defence has been unable to agree to terms with the Committee to provide access.

I am advised a further proposal has been developed to provide access, which seeks to address the concerns raised by the Committee and its members…25

1.35    Ultimately, on 9 February 2022, the Chair of the Economics References Committee (Senator Chisholm) advised that the committee had been given limited access to the documents:

…the papers have been made available to the Committee only in Parliament House and under the supervision of Department of Defence staff. Arrangements are now in place, and one of our committee members, Senator Rex Patrick, has taken the opportunity to view the documents.26

1.36    The Chair of the References Committee indicated that the committee remained dissatisfied with both the manner in which the documents were provided and the significant delay in providing them:

While these documents have finally been made available in an unsatisfactory manner, not to mention their highly dubious confidential nature and the need to conceal their contents for so long, the Committee remains concerned at the timing of Minister Dutton's response. The Committee reiterates that it was only in the final sitting week of 2021, just before Senators departed the building for two months, were the documents made available. This could be construed as a subtle but intentional impediment to the Committee's work—particularly as it is just prior to the election period.

The committee considers the delay to be unreasonable.27

1.37    The References Committee subsequently tabled a second interim report on its inquiry. The majority of the committee reiterated this view and recommended that:

…the Department of Defence re-examine its induction and training programs and corporate culture regarding its role as a department answerable to the Australian people through the processes of the Australian Parliament.28

1.38    In a dissenting report, government members of the References Committee once again rejected the view that the department or the executive had been deficient in their engagement with the committee and the associated recommendation.29

Culpability

1.39    As a result of the conclusions it has set out below, the committee does not consider it necessary to evaluate the issue of culpability.

Findings and conclusions

1.40    Under section 49 of the Constitution, the Senate undoubtedly has the power to punish obstruction of its committees as a contempt. As the President, noted in his statement regarding this matter:

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 1987.30

1.41    As the committee noted in its 181st report, the Senate has never conceded that claims of public interest immunity by ministers are anything other than claims but it has not sought to enforce orders for the production of documents which are resisted by the executive using its power to punish contempts. This is explained, in part, by the 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. Instead, the Senate has typically applied political or procedural penalties, or has pursued other means of obtaining the information.31

1.42    Senator Patrick contested this view:

Mention is made in Odgers that the Senate has formed a view that it would be unfair to impose a penalty on a public official who acts on the direction of a Minister. Respectfully, this is not correct. Whilst it is true that the Senate should always be respectful and fair at first instance, it cannot place fairness ahead of our constitutional duty that applies in each case. A Senate Order for Production directed at an official cannot be countermanded by a Minister. Any direction to not comply with an order of the Senate is not a lawful order. Public servants are not required to obey any orders, only lawful ones…32

1.43    The Privileges Committee considers that this approach does not take sufficient account of the political context in which such orders are made and thus the appropriateness of orders which are resisted by the government generally being resolved through the imposition of political or procedural penalties. In particular, judgements about whether the public interest lies in disclosure of particular information by the government is regularly and rightly an area of political contest. This committee will be circumspect about recommending the Senate make a finding of contempt in relation to matters which have at their heart a political disagreement. The Senate may wish to consider adopting specific procedures to apply where the government raises a public interest immunity claim which the Senate explicitly rejects but that is a matter beyond the scope of the reference to this committee.

1.44    Nevertheless, ministers and public servants clearly have direct accountability obligations to the Parliament. The government's own guidelines for official witnesses appearing before parliamentary committees state:

A fundamental element of Australia's system of parliamentary government is the accountability of the executive government to the parliament. Ministers are accountable to the parliament for the exercise of their ministerial authority and are responsible for the public advocacy and defence of government policy. Officials are accountable to ministers for the administration of government policy and programmes. Officials' accountability regularly takes the form of a requirement for them to provide full and accurate information to the parliament about the factual and technical background to policies and their administration.33

1.45    They go on to note that:

The Guidelines are intended to assist in the freest possible flow of information to the parliament.34

1.46    It does not appear to the committee that the intention of the government guidelines was fulsomely adhered to in the initial responses by officials to requests for information from the References Committee. While the committee acknowledges the public interest grounds raised by the former Minister and maintained by Minister Payne, the apprehended harm to the public interest would only have arisen from disclosure of the documents beyond members of the References Committee. Senate committees routinely handle sensitive information without unauthorised disclosure and, where there are particular sensitivities, committees often accommodate arrangements which provide added assurance that the confidentiality of information will be maintained.

1.47    The committee notes with concern that officials were unable to expeditiously reach agreement with the References Committee to provide the information in a manner which allowed that committee to perform the inquiry delegated to it by the Senate.

1.48    It should not require reference of a matter as a potential contempt before officials reach a satisfactory arrangement to provide information relevant to a Senate inquiry on terms that protect any genuinely sensitive information but ensure the committee is able to fulfil its obligation to inquire and report to the Senate on the matters referred to it.

1.49    It is clear that the References Committee remains frustrated by the delay in resolving this matter. The documents were requested in May 2020 and not received until February 2022.

1.50    Nevertheless, as the information has now been provided, the committee concludes that no minister or official should be found to have committed a contempt in this matter. In doing so, the committee recognises that the contempt jurisdiction is primarily a remedial jurisdiction which exists to prevent obstruction of the Senate, its committees or senators performing their functions.35

1.51    However, the committee cautions that it cannot allow a creeping understanding that orders of the Senate or its committees may be ignored with impunity. This committee has rightly been sparing in its recommendations that a finding of contempt should be made and reticent to recommend further penalties where a contempt has been found. There should be no doubt that it will do so if it is necessary to resolve such matters without implicitly conceding an unfounded constraint on the powers of the Senate. 

1.52    In short, the committee considers these are matters which ought to be promptly resolved through negotiation between committees and officials applying the direction in the government guidelines for officials to assist in "the freest possible flow of information to the parliament". 

1.53    Finally, the committee acknowledges the recommendation from the late Senator Gallacher that the Auditor-General be asked to conduct a performance audit of compliance by large departments with their obligations to respond to the Senate and its committees in a timely and accurate manner. The committee agrees that it would be useful for the Auditor-General to ensure that departments and agencies have a clear understanding of their responsibilities to the Parliament and processes which support them effectively fulfilling those responsibilities. The committee notes that there is a process for parliamentary committees to identify audit priorities to the Joint Committee of Public Accounts and Audit. This process supports the Joint Committee meeting its statutory responsibility to advise the Auditor-General of the audit priorities of the Parliament.36 As a result, the committee will also draw this recommendation to the attention of the Joint Committee.

Recommendation 1

1.54    The committee recommends that the Senate adopt the conclusion at paragraph 1.50, that no contempt be found in relation to the matters referred.

Recommendation 2

1.55    The committee recommends that the Auditor-General conduct an audit of compliance by the Department of Defence with its obligations to provide timely and accurate information to the Senate and parliamentary committees and consider an audit of compliance by other large departments with those obligations.

Senator Deborah O'Neill
Chair

1 Senator the Hon. Scott Ryan, President of the Senate, Senate Hansard, 12 May 2021, pp 1-2.
2 Journals of the Senate, No. 98, 12 May 2021, pp 3431 and 3437.
3 Journals of the Senate, No. 100, 15 June 2021, p. 3520.
4 Committee of Privileges, 181st report: Matter of possible contempt – Commissioner of Taxation, November 2021, p. 1.
5 Economics References Committee, Australia's sovereign naval shipbuilding capability - Future Submarine program: Ringing of bells, wringing of hands (First interim report), 28 May 2021, paragraphs 3.29 to 3.63.
6 Journals of the Senate, No. 67, 6 October 2020, pp 2339-40.
7 Letter to the President of the Senate from the Minister for Defence (Senator Reynolds), tabled 9 November 2020.
8 Letter to the President of the Senate from the Minister for Defence (Senator Reynolds), tabled 9 November 2020, p.1.
9 Letter to the President of the Senate from the Minister for Defence (Senator Reynolds), tabled 9 November 2020, p.1.
10 Journals of the Senate, No. 72, 11 November 2020, pp 2547-8.
11 Economics References Committee,First interim report, paragraph 3.63.
12 Economics References Committee, First interim report, p. 43.
13 Committee of Privileges, 150th report, p. 20; and 181st report, p. 4.
14 Parliamentary privilege resolutions agreed to by the Senate on 25 February 1988 at: www.aph.gov.au/Parliamentary_Business/Chamber_documents/Senate_chamber_documents/standingorders/c00
15 Odgers' Australian Senate Practice, 14th ed., p.88. See for example, Committee of Privileges, 142nd Report: Matters arising from the Economics Legislation Committee Hearing on 19 June 2009, paragraph 6.9; and 162nd Report: Possible false or misleading evidence given to the former Nauru select committee, paragraph 4.6.
16 Submission 1, p. 1.
17 Submission 3, p. 2.
18 Submission 2, p. 2.
19 Submission 2, pp 1-2.
20 Submission 3, pp 3 and 7.
21 Submission 1, p. 2.
22 Submission 1, p. 2.
23 Submission 2, p. 2; Submission 4, p. 2.
24 Submission 4, p. 2.
25 Letter from Minister Payne to Chair of the Committee of Privileges, 19 November 2021.
26 Letter from Chair of Economics References Committee to Chair of the Committee of Privileges, 9 February 2022.
27 Letter from Chair of Economics References Committee to Chair of the Committee of Privileges, 9 February 2022.
28 Economics References Committee, Australia's sovereign naval shipbuilding capability - Future Submarine Acquisition: A shambles - we don't think, we know (Second interim report), 28 February 2022, p. 41.
29 Economics References Committee, Second interim report, 28 February 2022, pp 45-46.
30 President of the Senate, Senate Hansard, 12 May 2021, p. 2; Odgers' Australian Senate Practice, 14th ed., p. 672.
31 Committee of Privileges, 181st report, p. 12; Odgers' Australian Senate Practice, 14th ed., p. 672.
32 Submission 3, p. 2.
33 Department of the Prime Minister and Cabinet (PM&C), Government guidelines for official witnesses appearing before parliamentary committees and related matters, February 2015, p.2.
34 Department of PM&C, Government guidelines for official witnesses…., February 2015, p.2.
35 Committee of Privileges, 162nd Report: Possible false or misleading evidence given to the former Nauru select committee, paragraph 1.18.
36 Paragraph 8(1)(m) of the Public Accounts and Audit Committee Act 1951.

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