“Powerful” or “piss-weak”? The Senate has greater powers than a royal commission yet in recent years its authority has declined amid refusals by the likes of the Defence Department, the Tax Commissioner and the government itself to cooperate with Senate orders. Former senator Rex Patrick on responsible government.
Report of the Inquiry into media diversity in Australia
Last Friday morning US District Judge Carl Nichols sentenced Steve Bannon, a former top adviser to Donald Trump, to four months in prison and a $6,500 fine for failing to comply with a Congressional committee’s subpoena.
US President Woodrow Wilson once said of the US Congress:
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 conviction and sentencing of Bannon serves to remind us of the power invested in the US Congress to conduct the oversight of which President Wilson spoke.
Sadly, it also allowed us to contrast the oversight strength of the US Congress with the oversight weakness of the Australian parliament.
Accountability in the Australian parliament
Both houses of parliament are empowered under Section 49 and Section 50 of the constitution to conduct oversight of government and to throw the light of publicity on its acts.
The powers are significant allowing MPs and senators to ask questions of ministers (as occurs at question time and through questions on notice) and to inquire, compel witnesses, order the production of documents and to deal with contempt. The strict powers of each house of the federal parliament are greater than those of a royal commission.
Indeed, in 1955, the House of Representatives, inappropriately, exercised its contempt powers sending a Bankstown Observer journalist, Frank Browne, and the paper’s owner, Raymond Fitzpatrick, to the Goulburn gaol for 90 days because an article for which they were responsible impugned the honour and challenged the fitness of Charles Morgan to be a Member of Parliament.
When two applications for habeas corpus from Browne and Fitzpatrick came before the High Court, the court examined the lawfulness of the incarceration. It first discussed its own supervisory power over the Parliament and determined:
It is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise.
The court, relying on the 1840 Case of the Sheriff of Middlesex and by reference to a case when Victoria’s House of Assembly committing Mr Hugh Glass to gaol, determined that Browne and Fitzpatrick were being “properly held” by the Chief Commissioner of Police at Canberra.
In 1955 the House exercised its power. Since then, however, the appetite for dealing with contempt by the Houses has died, rendering the inquiry power impotent. Exercising a power when it shouldn’t be is inappropriate, but so too is not exercising the power when it should.
Yes minister, no senator
Of course, the House of Representatives doesn’t conduct government oversight. The powers of the houses are exercised through a vote of the majority of its members and the government, by definition, controls the house. It can suppress information or inquiries which are to its disadvantage, sometimes by refusing to supply information, sometimes by using its numbers to stop inquiries altogether.
It is the Senate that is the grand inquest of the nation. Or at least it should be. But it isn’t. It fails dismally.
The Senate seems satisfied with answers to question on notice that are both untimely and unsatisfactory. Most senators seem to just accept non-answers from officials at Senate estimates or politically infected and erroneous answers.
All too often, orders for the production of documents have been met with contempt, with the government trumping up untested and often bogus public interest immunity claims. In those cases where the Senate arguments are strong for the documents to be produced, the Senate does nothing except weaken itself.
Across my time in and around the Senate I witnessed contempt after contempt.
- On November 17, 2014, the Senate ordered the production of an economic modelling report into the impact of the future submarine project on the Australian economy. The Senate was refused access to it. I later obtained it using Freedom of Information (FOI) laws.
- On October 9, 2016, the Senate ordered the production of the French submarine design and mobilisation contract. The Senate was refused access to it. I later obtained it using FOI.
- On September 4, 2017, the Senate ordered the production of the Future Frigates. It had been given to overseas shipbuilders, but the Senate was refused access to it. I later obtained it under Freedom of Information laws.
- On November 16, 2017, the Senate ordered the production of information relating to Murray-Darling strategic water purchases. The government withheld crucial valuation information which, wait for it, was later released to me under FOI.
On February 10, 2020, I stood up in the Senate as it tried to enforce its powers of document production seeking access to the Gaetjens Sports Rorts Review. The Senate was told it couldn’t have it because it was a cabinet document. I spoke and declared:
“I’ve FOIed this. … Won’t it be a shame, when I get to the end of the two years the process is likely to take me, if it’s revealed to me that Mr Rex Patrick can get it, under FOI, but the Senate couldn’t? We’ll see how that pans out.
On the 14th of this month the Information Commissioner ordered its release to me.
The Senate’s oversight function, insofar as it seeks to shine a light on the operations of government, is perfunctory at best. It’s crippled by its own lack of conviction.
No privileges, thanks
The privileges committee, often erroneously characterised by the media as “very powerful”, is impotent. It’s made up of senators, who thanks to their weakness and partisan loyalties, are a disgrace compared to their British counterparts who have for centuries battled to ensure Parliament is supreme over the executive.
The committee’s two most recent reports say it all.
For two years the Department of Defence withheld documents from the Senate’s economics reference committee’s inquiry into naval shipbuilding. It unquestionably interfered with the progress of the committee’s inquiry, but the privileges committee failed to find this was a contempt. It’s finding weakened the Senate. Once can expect the government to do more of the same in the future.
When asked to enforce an order to the Tax Commissioner to hand over a list of companies with a turnover of more than $10 million that had received JobKeeper, and the amount it received, the privileges committee did nothing other than allow the Tax Commissioner to propose a different order to his liking.
On both occasions the privileges committee argued other softer remedies ought to be adopted. Oliver Cromwell, if he hadn’t been exhumed from Westminster Abbey so that he could be given a posthumous execution and thrown in a pit, would be turning in his grave.
Mojo lost
We often hear people call for a royal commission to get to the bottom of something. This is a strange call for two reasons.
Firstly, a royal commission is established by letters patent issued by the governor-general on the advice of government. Royal commissions are always for investigations in which the government is interested, not the people.
Secondly, the Senate has greater powers than a royal commission.
People either subconsciously or consciously turn away from the Senate because they know it is weak. They know it has lost its mojo. And governments and bureaucrats know this better than anyone. So, it’s a vicious cycle in which the authority and power of the Senate continues to decline.
Its weakness is not the fault of the government and it’s not the fault of the Senate staff who do their best to support inquiries. It is exclusively the fault of senators.
The powers of the Senate have been established by convention. Unexercised, those conventions will turn into points of interest for historians. That would be a tragedy, because securing accountability of government is the very essence of responsible government.
