[Peetwo]

Senator Patrick on keeping the bastards honest -

In NXT Senator Patrick's first speech yesterday, I was encouraged to see that Senator Rex has picked up the Xenophon mantle on transparency and accountability of the Government and it's agencies:

..I think legislating is something the Senate does quite well. However, there is another constitutional function that the Senate is not fulfilling, in my view, as well as it does in legislating. In this I refer to the Senate's role of probing and checking the administration of laws, of keeping itself and the public informed and of its requirement to insist on ministerial accountability for the government's administration. With words so relevant to us that it is quoted in Odgers, US President Woodrow Wilson described the informing role of the congress, stating:

It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served …

The philosopher John Stewart Mill, quoted with approval in the High Court case of Egan and Willis, summarised the task as:

… to watch and control the government: to throw the light of publicity on its acts …

Applied to the Senate, these principles make it clear that our role is not just to review and pass legislation. Indeed, as President Wilson stated, 'The informing function of Congress should be preferred even to its legislative function.' In the House of Representatives the government has the majority, usually, and so that function is not performed there. Governments can never be relied on to supervise and scrutinise themselves. The Senate must take this role most seriously. The Constitution, particularly section 49, grants the Senate power to carry out this informing function.

The Senate can conduct an inquiry of ministers through questioning and can compel the attendance of witnesses and the giving of evidence, and require the production of documents. Yet, despite having these powers, the Senate has often been reluctant to use them. It sometimes appears to be satisfied with explanations that are untimely and/or unsatisfactory. I provide you some examples.

Questions on notice tabled in this chamber are often not returned within the 30 days required by the standing orders. The same is true for estimates, where answers to questions are often returned to committees at the eleventh hour. This is disrespectful of the Senate, and more so of the citizens for whom the questions are asked, and should not be permitted if we are seen to be taking our job seriously.

All too often, orders for the production of documents have been met with contempt. An order for the production gets made. The government advances an argument for public interest immunity, however tenuous that argument might be. Invariably the Senate does not accept the public interest immunity claim and the government insists on its refusal to provide the document, and then the Senate does nothing except weaken itself. In those cases where the Senate arguments are strong for the documents to be produced, the Senate weakens itself by not using its powers to insist on production.

Also, the Senate has been shy about calling junior officials to estimates and to references committees. Fellow Senators, the devil is often in the detail, and senior officials, officers of summary knowledge, simply don't know the details. The Senate should not hesitate to call a witness of any rank or experience if that witness has the information the Senate deems necessary for informing itself. I've seen departments resist the calling of junior witnesses and, more recently, declining a request for senior officials on a naval shipbuilding advisory board to appear before a committee. This is from Odgers:

In practice, it is rare for a committee to order the attendance of a witness because it is rare for anyone to refuse a committee’s invitation to give evidence.

Colleagues, of course we should not exercise power irresponsibly, but by the same token we must also recognise that there are circumstances when it is also irresponsible not to exercise a power.

Finally, I've seen departments refuse to give evidence for shallow reasons. Last month, Defence refused to discuss whether the use of Australian steel was a requirement in an armoured vehicle. Let us be clear: we don't have to accept denial, obfuscation or spin from executive government and its servants. To do so is copping out, selling out or wimping out of the oaths that we have taken. It's time we stood up for ourselves and used the numbers we normally use so effectively in enhancing legislation to enhance this critical oversight role.

In that vein, I wish to raise an important oversight deficiency of the federal parliament, that the federal parliament wants for fixing. Just over a year ago the Prime Minister announced an independent review of Australia's intelligence services. The review was released in June and included a number of recommendations that recognised—noting that 7,000 people and 10 agencies are involved, and more than $2 billion of taxpayers' money is being spent on intelligence—that more coordination was required in the intel domain. Whilst I strongly support our intelligence services, we must also recognise that the power that comes with such organisations must be appropriately balanced with enhanced accountability.

The Parliamentary Joint Committee on Intelligence and Security is currently constrained to oversight of administrative and financial matters. The parliament, in contrast to the principles of responsible government, has carved out operational matters from the purview of the committee, and that is neither wise nor acceptable. For the avoidance of doubt, the intelligence service does a lot of first-class work and critically important work. Parliamentary oversight does not constrain an agency operating lawfully; rather, it seeks to enhance an agency's operations.

This has long been recognised in the US, where committees such as the House of Representatives Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence can delve deeply into agency operations. This is accepted by the US intelligence community as necessary and appropriate. It should be the same here, and I propose to introduce a private senator's bill to this effect.

Joseph Pulitzer once said:

There is not a crime, there is not a dodge, there is not a trick, there is not a swindle, there is not a vice which does not live by secrecy.

Open and transparent government is critical in a system of responsible government. However, the effective use of the Senate's informing and oversight powers must also be augmented by strong and effective laws that ensure the fullest degree of transparency and accountability of government. Freedom of information laws, strong whistleblower protections and enhancing the powers of ombudsmen and auditors-general will ensure more accountability. Why does this matter? If the Senate does its job to the fullest extent possible, if we have institutions to ensure transparency and accountability, the taxpayers' money will be spent more wisely and more effectively, which is clearly in the interest of all Australians...

Or in pictures:

MTF...P2