Summary

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The majority voted in favour of a motion moved by Centre Alliance Senator Rex Patrick (SA), which means it succeeded.

Motion text

(1) That the Senate notes that:

(a) on 21 August 2018, the Senate agreed to an order for the production of documents directed at the Minister representing the Minister for the Environment and Energy for documents relating to the grant of $444 million to the Great Barrier Reef Foundation (the Foundation), including documents demonstrating due diligence was carried out on the Foundation;

(b) on 10 September 2018, the duty minister tabled the index to a due diligence report prepared by the Australian Government Solicitor but did not table the body of the report, making a public interest immunity claim of legal professional privilege;

(c) to the extent that the report fulfils a due diligence task, it cannot be characterised as legal advice and, therefore, cannot attract the privilege – it is noted the document comprised largely information that is available online free of charge or for a nominal fee, such as company details, insolvency notice search results, media searches, ASIC personal name search results, and AUSTLII case searches;

(d) the Senate does not accept legal professional privilege as a basis for a claim of public interest immunity unless it is established that there is some particular harm to be apprehended by the disclosure of the information;

(e) in Egan v Chadwick, Chief Justice Spigelman held that "in performing its accountability function, the Legislative Council may require access to legal advice on the basis of which the Executive acted, or purported to act...access to such advice will be relevant in order to make an informed assessment of the justification for the Executive decision. In my opinion, access to legal advice is reasonably necessary for the exercise by the Legislative Council of its functions"; and

(f) as a country that upholds the rule of law, the Government must not rely on conventions, no matter how longstanding, that are contrary to established principles in law.

(2) That the Senate does not accept the public interest immunity claim made by the then Minister representing the Minister for the Environment and Energy (Senator Birmingham) in relation to the due diligence report prepared by the Australian Government Solicitor, and requires the Minister representing the Minister for the Environment to table the due diligence report, in accordance with the order for the production of documents agreed to by the Senate on 21 August 2018, with any appropriate redactions where there is some particular harm to be apprehended, accompanied by a properly made out claim for public interest immunity identifying the harm.

Votes Passed by a small majority

Nobody rebelled against their party.

Party Votes
Cory Bernardi SA Australian Conservatives Yes
Australian Greens (100% turnout) 9 Yes 0 No
Richard Di Natale Victoria Yes
Mehreen Faruqi NSW Yes
Sarah Hanson-Young SA Yes
Nick McKim Tasmania Yes
Janet Rice Victoria Yes
Rachel Siewert WA Yes
Jordon Steele-John WA Yes
Larissa Waters Queensland Yes
Peter Whish-Wilson Tasmania Yes
Australian Labor Party (84% turnout) 21 Yes 0 No
Catryna Bilyk Tasmania Yes
Carol Brown Tasmania Yes
Doug Cameron NSW Yes
Kim Carr Victoria Yes
Anthony Chisholm Queensland Yes
Jacinta Collins Victoria Yes
Patrick Dodson WA Yes
Don Farrell SA Yes
Alex Gallacher SA Yes
Kristina Keneally NSW Yes
Chris Ketter Queensland Yes
Gavin Marshall Victoria Yes
Malarndirri McCarthy NT Yes
Claire Moore Queensland Yes
Deborah O'Neill NSW Yes
Helen Polley Tasmania Yes
Louise Pratt WA Yes
Lisa Singh Tasmania Yes
David Smith ACT Yes
Anne Urquhart Tasmania Yes
Murray Watt Queensland Yes
Kimberley Kitching Victoria Absent
Jenny McAllister NSW Absent
Glenn Sterle WA Absent
Penny Wong SA Absent
Centre Alliance (100% turnout) 2 Yes 0 No
Stirling Griff SA Yes
Rex Patrick SA Yes
Nigel Scullion NT Country Liberal Party Absent
Derryn Hinch Victoria Derryn Hinch's Justice Party Yes
Sue Lines WA Deputy President Absent
Tim Storer SA Independent Yes
Lucy Gichuhi SA Independent No
Steve Martin Tasmania Independent No
Fraser Anning Queensland Katter's Australian Party Yes
David Leyonhjelm NSW Liberal Democratic Party Yes
Liberal National Party (50% turnout) 0 Yes 1 No
Matthew Canavan Queensland No
James McGrath Queensland Absent
Liberal Party (91% turnout) 0 Yes 20 No
Eric Abetz Tasmania No
Simon Birmingham SA No
Slade Brockman WA No
David Bushby Tasmania No
Michaelia Cash WA No
Richard Colbeck Tasmania No
Jonathon Duniam Tasmania No
David Fawcett SA No
Concetta Fierravanti-Wells NSW No
Mitch Fifield Victoria No
Jane Hume Victoria No
Ian Macdonald Queensland No
Jim Molan NSW No
James Paterson Victoria No
Marise Payne NSW No
Linda Reynolds WA No
Anne Ruston SA No
Zed Seselja ACT No
Dean Smith WA No
Amanda Stoker Queensland No
Mathias Cormann WA Absent
Arthur Sinodinos NSW Absent
National Party (67% turnout) 0 Yes 2 No
Bridget McKenzie Victoria No
John Williams NSW No
Barry O'Sullivan Queensland Absent
Pauline Hanson's One Nation Party (150% turnout) 3 Yes 0 No
Brian Burston NSW Yes
Peter Georgiou WA Yes
Pauline Hanson Queensland Yes
Scott Ryan Victoria President No
Brian Burston NSW United Australia Party Absent
Totals (87% turnout) 40 Yes – 26 No