This is a very important debate because it goes to the heart of what this chamber is meant to be about. We really have one primary task, and that is to be a house of review, to review the operations of, especially, executive government and the actions of some agencies that should be subject to that review. At least some members of the executive government here are obstructing us from doing our job. It calls into question why we then have this place. Why is it here if we’re not going to be allowed to properly investigate, on behalf of the Australian people, those that have the honour, privilege and great responsibility of powers vested in them, through this parliament and the executive government?
At the start of my comments, I want to recognise the efforts of Senator Bragg, who is doing a wonderful job chairing this inquiry. As I am sure he has outlined to the chamber, there have been a number of complaints, from many people across our community, about the conduct of ASIC. I’m sure many of us get those complaints through our offices directly. But Senator Bragg, as Chair of the Economics References Committee, has taken up those complaints. He drove the initiation of this inquiry. I should recognise that it was an inquiry supported by all in this chamber, I believe, and therefore the will of the Senate was there to investigate these matters. It’s just a shame it is now being held up by some senators, despite that initial support.
As I’ve outlined, there have been a number of clear deficiencies in ASIC’s conduct over the past few years. That’s been well documented through other inquiries. There have been various attempts, particularly by the former government, to get ASIC into line, to try and increase its resourcing, but there are still issues that remain; hence this inquiry.
As I said, this goes to the heart of what his chamber is about. The first thing we can do in holding governments and government agencies to account is to get access to information—information about what policies are and how they’re being implemented. The right to have that information is something that I believe we should all, as senators, defend strongly. Of course, there are times when information cannot or should not be provided to the Senate, but they should be extremely limited and well documented.
I might come to some other cases if I have time, but I am very, very concerned that the public interest immunity rules are increasingly being abused by government departments and government agencies to avoid scrutiny. I do not think, from my time in government and now in opposition, that this is being driven by members of parliament directly. I am not putting the blame on ministers here for initiating this abuse themselves; I think it is being done by the agencies and office holders who, understandably, don’t like the scrutiny and are seeking to wriggle out of it. Where I think ministers could do a better job is to not let them do that. They don’t have to agree with the public interest immunity claims.
I think the key thing we have to put on the record here is that any public interest immunity claim must be made by a minister. Obviously there are some departments and agencies who will request such a claim or seek to have such a claim upheld, but, ultimately, the power to pursue a public interest immunity claim is vested in a minister. Ultimately, it might be a minister here who might be representing a minister in the other place. Those ministers don’t have to comply; they can say no to these agencies. But I think there is sometimes a cosy relationship between ministers and the agencies they regulate, and there may be some degree of shyness or caution from ministers to not want to say no to the departments or agencies when a request like this comes forward. I think this debate is very important—that we stand up for the rights of the Senate here and put steel in the spines of the ministers, who are given this great responsibility, to push back on some of these creeping claims for public interest immunity across a range of cases.
Here we have a situation where there have been well documented complaints about certain actions of ASIC. The committee as a whole—not just Senator Bragg—has sought specific information about investigations that have closed, and we are being denied access to information about those cases, despite their closed nature. There is, obviously, a public interest immunity that is raised with regards to court actions and court cases, but in Odgers’ and under the rules of the Senate that can only be used in a situation where an action is ongoing or possibly about to start. They are the times that that can be used to avoid scrutiny. The cases I’m referring to now are closed—they are closed; they are not ongoing investigations, they are not before courts and nor is there any prospect of them coming before courts any time soon. There is no justification for a PII claim on this basis.
If this is upheld here, let’s be clear what we are doing. If we do not succeed, if Senator Bragg and his motion do not succeed here, we will have to rewrite Odgers‘. We will have to rewrite it, because what it says right now is not consistent with what some of the ministers in this government are seeking to uphold. It is very clear in Odgers‘ that you can only have this PII claim in an instance where there is an investigation happening or a court case underway. This is a new precedent to be set where, apparently, it also applies to investigations that are closed. This, effectively, means we will never be able to get information about any investigations ever again. I cannot see how that should be upheld. We should avoid the creeping growth of PII claims to prevent the Senate from doing its job. We have an opportunity here to stand up for the Senate.
As I mentioned, there are other cases I have been involved with recently as well. I have sought basic information about research that has been conducted for scientific purposes—the so-called gain-of-function research. Some of you might have heard about it. It is potentially the reason we ended up with a global pandemic called coronavirus; very credible scientists believe that gain-of-function research might be involved. Only through questioning by myself and other senators here have we found out that various Australian government agencies have been involved in 13 gain-of-function research papers over the past decade. Yet the department is refusing to provide any information about what that research was and where the papers were published. This was government funded research, and their claim for why they can’t release that is it would put the safety of the scientists at risk if it were to be put in the public domain. This is untenable. How can we have proper investigations of major policy questions if government departments and agencies can abuse the PII process to have a closed shop on what they are doing? It is a complete diminution of this place.
I ask all senators—this is not a partisan point: we should be standing up for the right of the Senate here to get information, reasonable information, reasonable requests, so we can do our job. If we’re not going to do that, why are we getting paid? Why would we continue to have jobs in this place if we’re not going to have the confidence and courage to do our job? Once again, I applaud the efforts of Senator Bragg. I hope we come together to support him and his reasonable request to seek information so that we, on behalf of the Australian people, can get to the bottom of what’s going wrong in ASIC and get justice for people who have been done harm through financial fraud. It doesn’t look like the government is willing to go on this journey, but maybe some other senators from the crossbench can put pressure on them to change their stance in this instance. I don’t think it’s being driven by the ministers; it’s just being accepted by them. They can get some more confidence and get some more courage. Let this information go into the public domain, let Senator Bragg and his committee do their job and, most of all, let us serve the Australian people in the very honourable role we have in this place.
