Spurning the Black Rod. Labor’s transparency dummy spit
· Michael West
Only Parliamentary nerds noticed. One such nerd Rex Patrick noticed and reports on a transparency dummy spit by Labor on the floor of the Senate.
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Formal Business
At about 3:30 pm each Senate sitting day (except Thursdays, when it occurs at 11:45 am) ‘Formal Business’ is dealt with. This includes boring matters, such as the seeking of approval for senators to be absent, but also more interesting matters such as the ordering of the Government to provide documents to the Senate and referrals of matters to Senate Committees.
Motions for the Order’s for production of documents (OPDs) can give hints as to what senators have taken an interest in from an oversight perspective. Committee referrals are often signals as to where, on the political map, non-government senators want to take things.
By way of example, some Committee referrals set for vote on on March 2 include (National’s Senator Matt Canavan) an inquiry into ‘The reasons behind the latest unprecedented cost blowouts in the Government’s budget and its impact on inflation and interest rates’ and (One Nation Senator Sean Bell) an inquiry into ‘The impact of Labor’s rushed firearms legislation on lawful manufacturing and Australia’s sovereign defence capability”.
Formal business normally takes about 30 minutes.
On Wednesday February 4, it took three hours, as the Government had a dummy spit.
Centuries old transparency power
The ability for the Parliament to obtain documents from the Government goes back 200 years. The 1844 first edition of the ‘Treaties upon the law, privileges, proceedings and usage of Parliament’ lays out the power to do so.
1884 Record of the Power (Source: UK Parliament)
The House of Commons and Lords in the UK enforce their orders for production, most recently against Ted Kramer, the founder of app developer Six4Three who was visiting London with Facebook related documents in his briefcase. He received an unexpected visit from the House’s sergeant-at-arms.
Media Reporting on Enforcement against Ted Kramer
Enforceable in Australia
So too has the NSW Parliament.
On May 1, 1996, the Legislative Council, passed an order for production requiring then NSW Treasurer, Michael Egan, to table papers in the Legislative Council.
On May 2, Egan turned up to the Chamber refusing to comply with the order and was found, by vote, to be guilty of contempt and ordered to leave the chamber. He refused. The Usher of the Black Rod was then ordered to escort him out onto the footpath on Macquarie Street.
The Black Rod
Egan initiated proceedings in response to being turfed out. The matter went all the way to the High Court (Egan v Willis [1998] HCA 71) where the right of a House of Parliament to order documents be produced, and to deal with non-compliance as a contempt, was affirmed.
Purpose of the Black Rod
US President Woodrow Wilson once talked of the informing role 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 philosopher John Stewart Mill, quoted with approval in the High Court case of Egan v Willis, summarised the task as:
to watch and control the government: to throw the light of publicity on its acts
The power to order the production of documents (which, federally, is embedded in the Australian Constitution in Section 49) is essential to enable the Parliament to perform its oversight function.
Fishing exercise
Returning to the Senate on February 4, the Albanese Government decided it was going to try to amend every order for production being proposed.
In doing so, it inserted a complaint in each of its amendments, stating.
orders for the production of documents is one of the Senate’s most serious powers, and should be used when other processes have been exhausted rather than for fishing expeditions;
The problem with the statement is that it is completely wrong and completely disrespectful of the history of the power and where it fits in the Parliament’s constitutional role.
There is no authority to suggest that it is a power to be used after all other processes have been exhausted. And the exact point of the order for production is to go fishing into the affairs of Government, and especially where the Government doesn’t want the Senate to look.
Here the Albanese Government arrogantly seeks to be the arbiter of inquiry topics.
It must be recognised that the power to order production of documents is not one that can be exercised by a single senator; the order can only be made on a vote a majority of the Senate (orders for production of documents are never made in the House because the government always has a majority).
It is the Senate that will decide what documents the Government must surrender, not the Government. If a senator is being reckless, playing politics, the proposed order may not get made.
A strategy for secrecy
Since coming to power, the Albanese Government, which seemed keen on transparency as an Albanese opposition, has embraced secrecy. They’ve done so in a much slyer way than the Morrison Government did – Morrison never promoted transparency as a good thing. Albanese does whilst simultaneously trying to kill it off.
Whistleblowing is a form of transparency – where the insider who can see all, or most, acts on information that is normally hidden. The Albanese Government has actively prosecuted whistleblowers in a campaign to discourage whistleblowing.
Freedom of Information is a transparency mechanism – the regime is supposed to allow citizens to look behind the dark curtains lining government offices to allow for democratic participation and scrutiny. The Albanese Government has introduced legislation to make FOI more expensive and harder to exercise, and to expand the exemptions.
A not so grand inquest
And finally, the grand inquest of the nation – the Parliament – is being shielded from sunlight.
Anyone who watches question time will see that questions by non-government MPs are rarely answered.
Readers will recall that the Albanese Government circulated a document providing advice to officials on dodging tricky questions at Senate Estimates.
To complete the trifecta they are now trying to kill off orders for production of documents.
Offensive to democracy, and having only wasted time on February 4 as the non-Government senators held the transparency line, I guess we’ll have to see whether Labor persists with its secrecy hunger games on March 2 when confronted with three orders for production currently listed on the notice paper (one for Senator Barbara Pocock, one for Senator Fatima Payman and one for Senator James Paterson).