Senate Finance and Public Administration Legislation Committee, , 0:04 to 18:34
The committee discusses the administrative pause in processing questions on notice and the scope of parliamentary privilege regarding committee submissions.
Topics: Parliamentary privilege, Orders for documents
Speakers: Vance Khan, Hon Jane Hume, Karen Grogan, Unknown Speaker
I declare open this hearing of the Senate Finance and Public Administration Legislation Committee into the 202526 additional estimates. Uh I begin by acknowledging the traditional custodians of the land on which we meet today and pay my respects to their elders past and present and extend that respect to a Toristra Islander people here today. The committee has set Friday the 20th of February 2026 as the date by which senators are to submit written questions on notice and Friday the 10th of April 2026 is the date for the return of answers to questions taken on notice in this session. The committee's proceedings today will begin with the parliamentary departments followed by the prime minister and cabinet portfolio as listed on today's program. Understanding order 26, the committee must take all evidence in public session and this includes answers to questions on notice. I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence. The Senate has endorsed the following test of relevance of questions at estimates hearings. Any questions going to the operations or financial positions of the departments and agencies which are seeking funds and estimates are relevant questions for the purpose of estimates hearings. I remind officers that the Senate has resolved that there are no areas in connection with the expenditure of public funds where any person has discretion to withhold details or explanations from the parliament or its committees unless the parliament has expressly provided otherwise. The Senate has resolved also that an officer of a department of the Commonwealth shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer such questions asked of them to a superior officer or to a minister. This resolution does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted. Witnesses are reminded of the Senate order specifying the process by which a claim of public interest immunity should be raised. And I incorporate that public immunity statement into the handard. I remind senators of their obligations under the behavior code for Australian parliamentarians to treat witnesses with dignity, courtesy, fairness, and respect. As is my usual practice, I provided copies of the code in the room for your reference. An officer called to answer a question for the first time should state their full name and the capacity in which they appear. And I remind committee members and witnesses who are appearing via teleconference and who are not speaking to mute their So welcome to the president the honorable Sue Lines um the clerk Mr. Richard Pie and Mr. John Begley usher of the black rod. President would you care to make an opening statement? >> No thank you chair. >> Mr. Pi, would you care to make an opening statement?
>> No, thank you chair.
>> Okay we will go directly to questions and we'll go to Senator Hume.
>> Thank you. Thank you chair and uh good morning everyone. I want to ask some questions about the pausing of processing for questions on notice. Uh can the department confirm that the processing of quans was paused between the 17th of December and the 12th of January this year? 17th of December last year and and obviously 12th of January this year.
>> Richard Py Clark of the Senate. Um I understand there is a a pause that is implemented each year over the Christmas break. Um I don't have the specific dates, but those dates sound about right to me. Senator,
>> so um I'm interested in knowing how those dates are chosen because obviously there were 11 additional business days to what is the standard government shutdown period over the break? Who signs off on those dates?
>> Um I think they're signed off by the Clark system table. Um the table office is the office in the Senate that processes questions. U I I don't know how um those dates are arrived at. Um when I was Clark assistant table some some years ago now um we tend what we tended to do was look at I guess the um number of questions that were coming in and tried to work out uh you know if we continue to get the average number of questions that we can that we ordinarily would get um will we be able to process them or all of the ones that we get by the cutoff date and send them off to departments and agencies. So when you've got a low average number of questions, uh you can afford to sail a bit closer to the wind, I guess, get a bit closer to Christmas. As I think, you know, we've got um quite high levels of questions at the moment. So I imagine they calculated the date by trying to make sure they could clear the number of questions that were expected um to roll in in any given week. So, it's an
arbitrary decision each year as opposed to a standard procedure.
>> Well, I think it's a standard procedure to a degree because I think we try to cut things off on a a Friday, but I I would have to take the question on notice to get more detail about
>> is there is there a standing order? Is there a resolution of the Senate? Is there an order of continuing effect? whatever it might be that authorizes a pause or a cut off period for the lodgement. Questions on notice?
>> Uh, no. There's nothing by way of a resolution or something of that nature. It's a um it's trying to acknowledge the reality that there won't be people to process questions. Uh won't be people available to receive questions for a period over the Christmas
>> between the 17th of December and the
were received on the 17th of December would still need to be processed over the next couple of business days to get them out the door, Senator.
>> So, standing order 74 requires that a notice of a question shall be given by a senator signing and delivering it to the clerk and that the cler shall place notices of questions of notice questions on the notice paper in order in the order in which they are received. I don't understand where in standing order 74 or anywhere else in standing order is there a provision for an arbitrary cutoff period during which questions are accepted but not lodged.
>> Well, it's a practice that's been um undertaken in the Senate for as long as I can remember. Senator,
>> so I lodged a large number of questions admittedly on the 19th of December and was subsequently told that these questions would not be processed until the 12th of January. We were told that the questions had been formatted so that they would be uh uh ready to be submitted once the pause ended. I can't understand then why they couldn't just be submitted if the relevant staff were
Well, Senator, I I would have to get more detail about that to uh to understand the context and and the um thought processes, but um my understanding is that these arrangements are advised to senators and to departments and agencies so everybody can see what the uh shape of the um of the process will be over the Christmas period.
>> Senator Hume, just for clarity, are these chamber questions?
questions? questions placed on the notice paper.
when the table office was called about this, the advice was that we simply needed to send an email from from me insisting that questions be formally lodged and yet the department still refused to submit them even after we'd
>> Uh I I would have to look into that, Senator. I don't have any information about that.
>> Okay. I I I just don't understand what additional authority the department considers necessary beyond a senator's written insistence that the questions be lodged. What I don't know what more we can do.
>> Well, as I say, Senator, the arrangements for the Christmas period were advised to senators and members and also to departments and agencies who receive um questions to to process. And in those circumstances, I I guess those um the the idea was that the arrangements that have been advised to people would be adhered to.
>> Okay. So, interestingly, despite the advice saying that they wouldn't be processed until the 12th of January, my questions on notice on Senate Connect lists 11 questions with a notice given date of the 5th of January. So when the advice says that items received between the 17th of December and the 9th of January won't be processed until the 12th of January, clearly that wasn't
>> Well, Senator, it sounds like someone
>> Do you think that this delay materially reduces the likelihood that questions will be answer that questions will be received before estimates hearings?
Uh, I I don't know that that's necessarily the case, Senator.
>> I'm I'm just I'm uncomfortable with the administrative pause that's implemented by the table office on this and that it can have the practical effect of shielding ministers from scrutiny, which is the role of an opposition. It's indeed the role of an estimates hearing. So, I'm wondering whether the department can commit to lodging questions on notice strictly in accordance with standing order 74 in the future regardless of the time of the year that they're submitted.
>> Well, Senator, I'm happy to review the practices, but I'm not happy to commit to something here and now without understanding the uh dimensions of
>> I would hope that you could come back perhaps with a better indication of whether that might be possible.
>> Yeah, I I'm happy to review that.
Thank you. Uh I have some more questions chair um specifically about parliamentary privilege. >> Yes, if you like me if you if you're comfortable keep going. Go ahead. >> Um obviously uh uh Clark you're aware that uh there's a Senate committee on privileges. It's currently conducting an inquiry in some of the commission the submissions for that inquiry. Uh there was one provided by the department of parliamentary services. there are definitions or explanations of how privilege works. I'm wondering first of all, have you seen some of these submissions?
>> Uh, I've seen some of the submissions, Senator, I haven't read them in detail.
>> No. Okay. Can I ask if any of the submitters consulted you in the creation of their submissions?
>> Uh, no, Senator. None. None did.
>> Okay. So, the Department of Parliamentary Services didn't call on your expertises expertise as to how to look at parliamentary privilege. I I
didn't see the submission. Senator,
>> the the Secretary of the Department of Parliamentary Services in an estimates hearing admitted that she should have done this in relation to other matters, but she hasn't done it in the relation to the submission from the department to this inquiry. Is that correct?
>> That's correct, Senator.
>> Okay. Do you have or do you see any immediate issues with the way that any of the submitters that you have seen have defined or explain parliamentary privilege and its operation? Um yes,
I've seen a couple of submissions that uh take a very narrow uh view of parliamentary privilege in that they uh leap to the explanation of privilege in section 16 of the privileges act and assume that that's the entire um extent of parliamentary privilege and it's it's my advice to people who are interested to know what the Senate thinks parliamentary privilege looks like is to go and have a look at some of the relevant reports from the privileges committee. Um, you've probably had the opportunity to look at some of those recently, Senator. um in particular the reports around search warrants and the Senate and the development um eventually of approaches to dealing with uh covert powers, investigative agencies using covert powers and the intersection there with privilege. Section 16 of the Parliamentary Privileges Act is too narrow a focus really because of the reason that it was enacted in the first place. Um, in the 1980s there were a couple of cases in the New South Wales Supreme Court that took um much too narrow a view of parliamentary privilege and section 16 was enacted by the uh parliament to um reestablish what parliamentary how parliamentary privilege operated in the courts. So, it's specifically meant to remedy the these New South Wales Supreme Court decisions. The other thing that you need to look at though is um around the use of search and seizure powers and the work that the Senate committee has done there. Um in the year 2000 there was a federal court case federal court case called Crane and Getting and in that case a search warrant had been executed on a senator's office and the senator wanted to claim privilege in relation to um some or all of the documents. And the question came before the court and the court said that it's the role of the court to determine questions of privilege when they arise naturally in proceedings of court but it's not the role of the court to settle questions of privilege as between the executive and the parliament. And the outcome of that case was that the uh the judge in that case had the documents sealed and provided to the Senate and left left it as a question for the Senate to determine. And that's the basis now of the MUS that we have with the AFP and with other um agencies such as the Knack in relation to privilege. Um, it puts in place a a process whereby if senators or members wish to claim privilege over documents that are sought in uh sort by way of search warrant, they um apply to have the documents in question sealed, given to a third party, usually the cler of the Senate, the cler of the house and the question determined by the um by the Senate itself on the recommend commendation of the privileges committee. This is the process that's set out in the 163rd and 164th reports of the privileges committee. So when you're uh looking at how participants in parliamentary proceedings are protected, yes, you've got your freedom of speech before the courts, but you also have um these other protections that uh fall to the parliament to determine.
Can I confirm with you an aspect of my understanding of parliamentary privilege which is that it is an active right and not a right to be applied retrospectively. Is that correct?
>> It's probably a little bit more a little bit fuzzier than that. Um but it is certainly something that um people who are part of the parliament and people who are working in the parliament should give active consideration to uh in their activities.
>> So you can't deprive somebody of their ability to claim privilege and then make
a a lot of this is this is an interesting question that we've um wrestled with a little bit in relation to covert powers as I mentioned before >> um because there has sometimes been this thought well people don't know that we're looking at their material so uh you know no harm no foul um whereas we would say well actually you might be stepping all over um privilege and actively interfering with the proceedings of parliament which which is what privilege is meant to um is meant to protect. So um you know trying to come up with a process that allows investigative agencies to get on with the work that they need to do and the privileges committee has has accepted that there are circumstances in which covert powers need to be uh exercised in investigations that come close to uh the work of senators and members. But you want to find a way to deal with um what would otherwise be claims of privilege which are able to be made when you're using something like a search warrant. So search warrant knock on the door where seeking your documents you want to claim privilege over them. Here's a process. Uh covert powers >> can't knock on the door without undermining the investigation. So the the question has been how do you manage those things?
>> Okay. All right.
>> And that's what theou uh in in relation to the NAK and the MO the more recentou in relation to AFP um investigations has tried to sort of wrestle with that question by establishing a dialogue really between the investigators and and the cler of the relevant house to caution when it looks like you might be getting close to privilege. CL can I
just say it your depth of knowledge, experience and understanding of this issue is on display for everyone to see. It amazes me that your advice is not sought at every opportunity when dealing with sensitive issues. So, thank you very much for that.
>> That's it. Any further questions for >> Thank you so much. Thank you. Um, appreciate your time. Please go forth and have a great day. And we will ask for the parliamentary budget office to >> Welcome uh Miss Sam Reinhardt,