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senate vote 2020-02-12#1
Edited by
mackay staff
on
2020-03-06 11:01:01
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Title
Motions — Leader of the Government in the Senate- Motions - Leader of the Government in the Senate - Senator McKenzie
Description
<p class="speaker">Penny Wong</p><p>I, and also on behalf of Senators Waters, Lambie, Patrick and Hanson, move:</p><p class="italic">That—</p>- The majority voted against a [motion](https://www.openaustralia.org.au/senate/?id=2020-02-12.93.2) introduced by SA Senator [Penny Wong](https://theyvoteforyou.org.au/people/senate/sa/penny_wong) (Labor), which means it failed.
- ### Motion text
- > *That—*
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- > *(1) The Senate notes that:*
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- >> *(a) on 5 February 2020, the Senate ordered the Minister representing the Prime Minister, Senator Cormann, to table the final report provided by the Secretary of the Department of the Prime Minister and Cabinet, Mr Phillip Gaetjens, to the Prime Minister in relation to the application of the Statement of Ministerial Standards to the former Minister for Sport, the Honourable Senator McKenzie's, award of funding under the Community Sport Infrastructure Program;*
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- >> *(b) on 6 February 2020, the Minister representing the Prime Minister tabled a letter making a public interest immunity claim grounded in the preservation of the confidentiality of cabinet deliberations,*
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- >> *(c) the document is a final report prepared outside of the Cabinet Room and has no capacity to reveal deliberations inside the Cabinet Room; and*
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- >> *(d) the Senate does not accept the public interest immunity claim made by the Minister representing the Prime Minister.*
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- > *(2) Until the final report provided by the Secretary of the Department of the Prime Minister and Cabinet, Mr Phillip Gaetjens, to the Prime Minister in relation to the application of the Statement of Ministerial Standards to the former Minister for Sport, the Honourable Senator McKenzie's, award of funding under the Community Sport Infrastructure Program, is tabled, or 6 March 2020, whichever is the earlier, Senator Cormann be prevented from:*
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- >> *(a) being asked or answering questions which may be put to ministers under standing order 72(1) where such questions are directed to the Minister representing the Prime Minister;*
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- >> *(b) representing the Prime Minister before a legislative and general purpose standing committee, including during consideration of estimates; and*
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- >> *(c) sitting at the seat at the table in the Senate chamber that is ordinarily reserved for the Leader of the Government in Senate.*
<p class="italic">(1) The Senate notes that:</p><p class="italic">(a) on 5 February 2020, the Senate ordered the Minister representing the Prime Minister, Senator Cormann, to table the final report provided by the Secretary of the Department of the Prime Minister and Cabinet, Mr Phillip Gaetjens, to the Prime Minister in relation to the application of the Statement of Ministerial Standards to the former Minister for Sport, the Honourable Senator McKenzie's, award of funding under the Community Sport Infrastructure Program;</p><p class="italic">(b) on 6 February 2020, the Minister representing the Prime Minister tabled a letter making a public interest immunity claim grounded in the preservation of the confidentiality of cabinet deliberations,</p><p class="italic">(c) the document is a final report prepared outside of the Cabinet Room and has no capacity to reveal deliberations inside the Cabinet Room; and</p><p class="italic">(d) the Senate does not accept the public interest immunity claim made by the Minister representing the Prime Minister.</p><p class="italic">(2) Until the final report provided by the Secretary of the Department of the Prime Minister and Cabinet, Mr Phillip Gaetjens, to the Prime Minister in relation to the application of the Statement of Ministerial Standards to the former Minister for Sport, the Honourable Senator McKenzie's, award of funding under the Community Sport Infrastructure Program, is tabled, or 6 March 2020, whichever is the earlier, Senator Cormann be prevented from:</p><p class="italic">(a) being asked or answering questions which may be put to ministers under standing order 72(1) where such questions are directed to the Minister representing the Prime Minister;</p><p class="italic">(b) representing the Prime Minister before a legislative and general purpose standing committee, including during consideration of estimates; and</p><p class="italic">(c) sitting at the seat at the table in the Senate chamber that is ordinarily reserved for the Leader of the Government in Senate.</p> <p class="speaker">Mathias Cormann</p><p>I seek leave to make a statement of no more than seven minutes.</p><p>Leave granted.</p><p>The government will oppose this motion, and I call on the Senate to oppose this motion in full. As Justice Meagher observed in the New South Wales case of Egan v Chadwick and Others as part of the majority decision:</p><p class="italic">The Cabinet is the cornerstone of responsible government … and its documents are essential for its operation. That means their immunity from production is complete.</p><p>Even Chief Justice Spigelman, who took a slightly softer position, also made clear as part of the same majority decision, at paragraph 70, that the power to require the production of documents should 'be restricted to documents which do not, directly or indirectly, reveal the deliberations of cabinet'. It has been well recognised in the Westminster system for hundreds of years that it is in the public interest to preserve the confidentiality of cabinet deliberations to ensure the best possible decisions are made following thorough consideration and discussion, including of relevant advice to cabinet or its committees. Under our system of responsible government, the principle of cabinet confidentiality is central to ensuring the provision of good government.</p><p>The report that the movers of this motion are attempting to force me to table on behalf of the government is a cabinet-in-confidence document. It is advice prepared by the Secretary of the Department of the Prime Minister and Cabinet for the purpose of informing the deliberations of the cabinet committee, and it is advice which was formally considered by that cabinet subcommittee as part of its deliberations. The Governance Committee of cabinet did not just use this report as some background material; it deliberated upon its very contents and made decisions directly in relation to those contents. Its release would therefore reveal deliberations of a cabinet committee. It would do so directly or, at the very least, indirectly.</p><p>Labor Senate cabinet ministers in the past—and, I would put it to the Senate, any Labor Senate cabinet minister in the future—being asked to release cabinet documents of formal advice prepared for the consideration of and informing the deliberate processes of cabinet or a cabinet committee would have refused, and will refuse in the future, to comply with any such request, claiming, as I have, public interest immunity. I continue to claim public interest immunity on behalf of our government, in the same way governments of both persuasions have done since Federation.</p><p>Turning to the sanctions proposed in part (2) of the motion. In the 119-year history of the Australian Senate, those proposed sanctions are completely unprecedented—completely unprecedented—and they are completely inconsistent with the ordinary application of the standing and sessional orders and longstanding Senate practice. It is our view that part (2) of the motion is asking the Senate to exceed its powers. There are limits on the Senate's powers, and it's our view that this motion is asking the Senate to exceed its powers.</p><p>The selection of the Leader of the Government in the Senate is a matter exclusively for the government, and such a decision should not be undermined by the Senate denying him or her the rights and privileges which accrue to the person holding that position from time to time under the practices and procedures of the parliament. Furthermore, the government allocates ministerial responsibilities. This motion would remove the capacity of senators—all senators, including Labor senators—to ask questions of the Minister representing the Prime Minister in the Senate, which surely is counterproductive and entirely undesirable. It would also deny a minister the right to attend legislative and general purpose standing committees, including during the consideration of estimates, which denies the government the capacity to fulfil its responsibility to outline and explain its actions to the Senate.</p><p>In any event, even if the Senate had this power, it would be an abuse of power to use it. Consider this: if the Senate had this power, where a majority of senators could remove a senator from his or her chair and prevent him or her from performing the functions to which he or she has been duly appointed, then a majority of members in the House of Representatives could conceivably do the same. A government majority in the House of Representatives could remove the Leader of the Opposition from his chair at the table for three weeks and prevent him from asking questions, similar to what this motion is seeking to do to me as the Leader of the Government in the Senate. It would be completely inappropriate and we would never do it because, unlike those opposite, we respect the institution of the parliament.</p><p>We all understand that this is a political stunt. The fact that Labor is proposing and supporting this motion reflects very badly on all of you. Let me say to those Labor senators who have not yet been ministers but who aspire to be Senate ministers in the future: be very, very wary of letting those who came before you box you into precedents that you, not they, will have to live with in the future. I urge the Senate to reject this motion.</p> <p class="speaker">Penny Wong</p><p>Senator Cormann defends himself and argues against this motion on the basis it is unprecedented. He makes that argument as if it is in his favour. It is not. He's right; the sanctions that are proposed against him as Leader of the Government in the Senate are unprecedented. But they are necessary because of the unprecedented behaviour of this government. That senators from across this chamber with a wide range of perspectives agree that such unprecedented action is necessary should be cause for reflection. When your behaviour—</p><p class="italic">Senator Cormann interjecting—</p><p>I listened to you in silence for the most part; give me at least a couple of minutes. When your behaviour provokes an unprecedented response, it might be cause to consider your own behaviour. Instead of pointing the finger, have a look in the mirror.</p><p>Senator Cormann argues that cabinet is the cornerstone of our democracy. He's right. That is why it ought not be used to perpetrate a political rort. That is why cabinet confidentiality ought not be used to perpetrate a political rort and a cover-up. Who are the ones trashing our democracy these days? There is a principle of cabinet confidentiality. There is also a principle of ministerial accountability to the parliament. Every day in this place we see the ways in which those opposite disregard that. We saw that today with Minister Reynolds.</p><p>It is entirely explicable why the government have such an attitude, though. Frankly, they're arrogant. They've been on a victory lap. They think they own the joint. They think that the last election was the last word on accountability. They think they're unbeatable and that, no matter how badly they govern or abuse their office, they can get away with it. That's what they think, and it is reflected in their behaviour.</p><p>I would remind government ministers that unchecked power never ends well. When Mr Howard won control of the Senate in 2004, it was the beginning of the end of the Howard era. Just as the Howard government did then, Mr Morrison and most of his ministers think they're above it all. They think they don't have to answer questions. They think they don't have to be accountable. We're seeing it in so much that they do. We see it in Mr Morrison's interviews, where he consistently refuses to answer questions that he doesn't like from the media: 'That's just in the bubble.' We see it in question time—refusal to answer, obfuscation and disregard for the parliament. We see it in Senate estimates, with complete contempt in taking unprecedented numbers of questions on notice—over 100 questions in one hearing alone. We see it in the government's misuse of the Public Service. They treat it as an extension of their ministerial offices, encouraging officers to take questions on notice and ensuring that public servants are not expected to come prepared or with material. We see it in their refusal to provide legal advice that confirms the government acted within the law. We see it in their complete contempt for the independent Auditor-General's report into the sports rorts scandal. We see it in their appointment of the Prime Minister's mate Mr Gaetjens to run PM&C. We see it in that mate being asked to write a report that whitewashes the government's wrongdoing in the sports rorts scandal, and we see it in the government refusing to make that report public.</p><p>Senator Cormann pretends that, somehow, the delivery of this report to the Senate would reveal cabinet deliberations. He knows this is an abysmal failure of accountability and a complete distortion of the principles of cabinet confidentiality. <i>Odgers' Australian Senate Practice</i> makes it clear that it has to be established that disclosure of the document would reveal cabinet deliberations. The government can't simply make that claim, because the document was walked through a cabinet room or has the word 'cabinet' on it. The fact is that the Gaetjens report, like the use of cabinet confidentiality, is simply another step in this cover-up.</p><p>Let us remember this: all of these contortions are necessary. Putting into cabinet a document that they have to keep secret, legal advice from Mr Porter that they have to keep secret—they're all necessary because they have to refute the report of an independent statutory officer. That's what all this contortion is about. It's refuting a report of an independent parliamentary officer who both has said that the money ought not have been allocated in the way that it was misadministered and also questioned the legal basis of the power of the minister to do these things. So, in order to dismiss the independent statutory officer's report—the independent authority—they go through this contortion of putting documents into a cabinet process so they can then hide them. But, regardless of whether this motion gets up, there's a bigger question here for Senator Cormann, and I say this to him: is this really the hill you want your credibility to die on—all your years in this place, all your efforts to bring integrity to this place, going up in smoke to protect a man who would never do the same? I hope Senator Cormann acts in this place to protect his legacy and reputation rather than the unsalvageable reputation of the ad man that purports to lead this country. I say to Senator Cormann: I hope he uses his leadership in this place to ensure a change of behaviour, a change that ensures the Senate is not forced to try and take this unprecedented step again.</p> <p class="speaker">Scott Ryan</p><p>I can't ask anyone to withdraw, but there are officers in the other place that I think need to be referred to by their formal title.</p> <p class="speaker">Penny Wong</p><p>I withdraw—Mr Morrison.</p> <p class="speaker">Scott Ryan</p><p>Thank you, Senator Wong. Senator Patrick.</p> <p class="speaker">Rex Patrick</p><p>I seek leave to make a statement for fewer than seven minutes.</p> <p class="speaker">Scott Ryan</p><p>Leave is granted for five minutes.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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