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International Law

: Open and Shut

Major parties prefer status quo on Senate powers

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The titles of these two posts

Senate looking to muscle up on refusal to answer, last November, and

Senate powers to access documents one of the issues for 2010, in the last few weeks indicate what I was expecting to come out of the Senate Finance and Public Administration References Committee's inquiry into Independent Arbitration of Public Interest Immunity Claims.

But the Committee's Report tabled on Tuesday saw Government and Opposition Members fold the tent on the exercise, recommending against the proposed resolution, leaving Independent Senator Xenophon and The Greens Senator Ludlam to fly the flag, in a dissenting report, for some sort of process that might scrutinise the validity of Executive government claims that documents cannot be provided because the public interest dictates otherwise.

The majority however decided it was all too hard ( see Chapter 2) for the details, raising as it did, the prospect of curly questions about the powers of parliament versus the executive being decided by the courts

In tabling the Report, Liberal Senator Cory Bernardi who chaired the inquiry explained that the majority view was "that the process of an opposition seeking to obtain documents from a government and a government claiming public interest immunity grounds for failing to release the documents is part of the combative cut and thrust of the parliamentary process, and indeed to allow an independent party to assess the validity or veracity of the claims of government may indeed ultimately compromise the operation of the executive."

Senator Ludlam, in response said this meant the Senate had to wear Government claims when told ?You can?t have that material and you just have to trust us as to why not.?

"What Senator Bernardi did not mention was that every single witness who appeared before the committee on our one day of hearings, and every submission, was supportive of just such an instrument of the Senate and the executive agreeing that an independent arbitrator should be able to make the decisions as to whether?on sight of the documents or not?it is in the public interest for the material to be made public or not. Every witness was supportive?with the exception of officers from the Department of Prime Minister and Cabinet, who had no opinions at all about anything. We heard from some of the best minds in the country?people intimately involved at a Commonwealth level or at a state level in Victoria and New South Wales with the way this sort of instrument has been operating elsewhere?and every one of them was supportive. They went to the trouble of pointing out the flaws in the draft motion which the Greens and Senator Xenophon have acknowledged in our dissenting comments. But they went one step further, none of which was picked up in the majority report of the committee, which was to provide the solution and amendments to the motion to actually make the system work."

I think that noise in the background is recently retired Clerk of the Senate, Harry Evans grinding his teeth.

Thanks to Open Australia for the Hansard link.

Full post as published by Open and Shut on February 03, 2010 (boomark / email).