Monday, 27 February 2017
CHAIR: Thank you. Senator Rhiannon.
Senator RHIANNON: I have some issues to deal with on the Prime Minister's statement of ministerial standards. I wanted to ask about the Prime Minister's statement of ministerial standards, Minister, and the cooling-off period for former ministers during which they are not allowed to lobby the government.
Senator Brandis: Yes.
Senator RHIANNON: Are you aware of the order of continuing effect adopted by the Senate on 23 November last year?
Senator Brandis: Yes.
Senator RHIANNON: Now the order, as we know, is called order no. 20(c) and it states that each minister must table a record of all meetings between former ministers, who are within the cooling-off period, and current ministers or senior officials.
Senator Brandis: That is a paraphrase, that is not actually what it says.
Senator RHIANNON: Are you saying what I have just said is inaccurate?
Senator Brandis: No, I am saying it is a paraphrase.
Senator Wong interjecting—
Senator RHIANNON: Thank you, and I acknowledge the help that I am getting from Senator Wong.
Senator Brandis: I am just saying, Senator Rhiannon, that you have not been reading from the document.
Senator RHIANNON: I have limited time. This is regularly your style, Attorney-General, that you go in for the attack to try to disrupt. Let me ask the question.
Senator Brandis: I am sorry, Senator Rhiannon, I just want it to be clear that what you have put on the record is not a direct quotation. I have the document in front of me. I just want it to be clear from the record, as I think you acknowledge, that what you have just said is not a direct quote from the document.
Senator RHIANNON: I did not say it was a direct quote.
Senator Brandis: That is fine, as long as—
Senator RHIANNON: Since your department is responsible for the statement of ministerial standards, are you aware if other departments or agencies are complying with the order?
Senator Brandis: No.
Senator RHIANNON: So you are not aware or they are not complying? What does the 'no' mean?
Senator Brandis: You have asked me if I am aware.
Senator RHIANNON: So you are not aware?
Senator Brandis: Correct.
Senator RHIANNON: Isn't that part of your job to know, and do you just need to take it on notice or is it not something you give attention to?
Senator Brandis: I will take it on notice if you wish me to. Are you asking me to take it on notice?
Senator RHIANNON: No, I am asking you, with the staff here, if you can supply that information now.
Senator Brandis: Well, I can't, but, if you want, I will take on notice the question:—
Senator RHIANNON: Okay, if you can take it on notice, please.
Senator Brandis: what departments and agencies are compliant with this order.
Senator RHIANNON: Does your department comply with the order?
Senator Brandis: I will have to take that on notice as well.
Senator RHIANNON: Seriously, you do not know if your department complies with the order?
Senator Brandis: Senator, you thought I was being pedantic but I am not actually. There are complexities to this order, so it is not quite as simple as you are representing to the committee.
Senator RHIANNON: At the end of the day it is about keeping a list of meetings and supplying it. Surely, when you turn up to estimates that is something that you would have in one of your folders. We are talking about vested interests.
Senator Brandis: The government is considering this order. I can tell you, if this helps—and I hope it does—that an issue has arisen in relation to it. Again, this is why I wanted it to be clear that what you had said was a paraphrase, not the actual terms of the order. There is an issue about the extent to which the order imposes obligations on House of Representatives ministers. I understand that the Clerk of the House of Representatives has provided advice that an order of the Senate cannot bind House of Representatives ministers. In view of that, consideration is being given by government to how, or whether, this order can or should be complied with.
Senator RHIANNON: Thank you for that clarification. But we still have ministers in the Senate and surely they are still bound by it?
Senator Brandis: That is an interesting question, to which the answer is not necessarily yes—for this reason. The order purports to apply to all ministers: Senate ministers and House of Representatives ministers. There is advice that it is incapable of applying or binding most ministers, so the question then would be whether the obligation in relation to Senate ministers is severable from the obligation that the order purports to impose on House of Representatives ministers. That is by no means clear.
Senator RHIANNON: Are you aware that at least one minister has actually reported on—
Senator Brandis: I have heard that.
Senator RHIANNON: That is Senator Birmingham?
Senator Brandis: I have heard that.
Senator RHIANNON: Is that the only one you have heard about? Have you heard about any others?
Senator Brandis: I have not.
Senator RHIANNON: Considering that there are vested interests—millions of dollars—that come into this place to lobby, is this not going to be a bad look if the government is using what some many people might see as semantics to get out of reporting?
Senator Brandis: It is not a question of semantics; it is a question of what the order means. The only advice that I am aware of, although I have not read it—but I have been told about it—that exists in relation to this order is apparently that it is not capable of applying to House of Representatives ministers. That, as I said a moment ago, raises the broader issue about whether the obligation in relation to Senate ministers is severable from the terms of the entire order. That is by no means clear.
Senator RHIANNON: That is what I meant by semantics. It is not a complicated—
Senator Brandis: It is not semantics. It is not a semantic issue at all.
Senator RHIANNON: It is language.
Senator Brandis: Of course.
Senator RHIANNON: The Prime Minister has gone on the record many times talking about his commitment to transparency and the importance of it for his government, and here we have a very simple, straightforward order. Okay, we know the House of Representatives is totally separate, but the order can still be applied to senators. All you need is to have a commitment to do it.
Senator Brandis: You may think it is as simple as that. I see a constitutional issue here. You think this is semantic. But any order depends on the language that the draftsman of the order uses. Whether there has been default in compliance depends upon whether the order is capable of operating in the first place.
Senator RHIANNON: If you say you are committed to transparency, in this day and age, 2017, it is pretty basic. I will just give you an example.
Senator Brandis: You can talk in rhetorical generalities all you like, but you have asked me about whether or not a particular order of the Senate has been complied with. I have explained to you why it is not as simple as you may think.
Senator RHIANNON: To go to some specifics: the Townsville Bulletin gave us an interesting report on the former Minister for Energy and Resources, Ian Macfarlane, who, as we know, is still in the cooling-off period. It is reported that he boasted at a business function in Townsville in February that he would talk to his 'good mates in Canberra' in order to make sure our native title laws are amended in the wake of a Federal Court decision which threatens the Adani coalmine. My understanding of what you have said is that that is not a problem at the moment because there is confusion and uncertainty in how you view this order. Do we just have to live with things like that?
Senator Brandis: I did not actually say that, but let me read from the order so that we can be clear what we are saying. The order applies—and this is paragraph 1(a)—to:
… all meetings, including teleconferences, at which lobbying, advocacy or the consideration of business took place, including date, location and duration, between current ministers, secretaries or deputy secretaries (or equivalent), of any Commonwealth Department or Agency and former ministers …
You instanced the case of Mr Ian Macfarlane. Mr Macfarlane is not a lobbyist. Mr Macfarlane is the chief executive, however so described, of the Queensland Resources Council. His engagement in relation to the particular issue—and I have not seen the report in the Townsville Bulletin, by the way, but I do not dispute it—on behalf of the Queensland Resources Council is not the engagement of a lobbyist, in other words a third party hired to advocate on somebody's behalf, but directly speaking as a stakeholder.
Senator RHIANNON: You are seriously saying that is not lobbying? We do not just have third party lobbyists. You know that. There are in-house lobbyists. A CEO's job is to get out there and lobby. He used the term 'good mates in Canberra'.
Senator Brandis: I am sorry, but there is a lobbying code.
Senator RHIANNON: And it is inadequate.
Senator Brandis: Whether it is inadequate or not, that is the code that we have. In it, lobbying is defined in terms of third party advocacy. So, if somebody advocates a point of view on their own behalf, that would not be captured by the meaning of 'lobbying' in the lobbying code—just as, for example, if a constituent were to ring me up, as a senator for Queensland, and say, 'Senator Brandis, I have this issue; can you help me, please?', that is not lobbying. But if, for example, a business were to hire a registered lobbyist to approach me, that would be.
Senator RHIANNON: Is it accurate that if Mr Macfarlane had lobbied a federal minister about that issue in relation to Adani, that would be okay under your current interpretation of the standards—so it is a non-issue the way you view it? Is that accurate?
Senator Brandis: What I am saying is that the lobbying code applies to lobbyists, but stakeholders or constituents who put a point of view on their own behalf are not captured by the lobbying code—because they are not third parties.
Senator RHIANNON: Can you please table the advice about the situation for ministers in the House of Representatives?
Senator Brandis: I do not have it. I have been told about it, but I have not read it and I have never actually physically had it.
Senator RHIANNON: You have not been given it; you have only been told about it? So we need to go directly to the Clerk of the House of Representatives about it?
Senator Brandis: I am not sure whether senators are at liberty to approach the Clerk of the House of Representatives.
Senator RHIANNON: We will take advice on that.
Senator Brandis: Maybe the Clerk of the House of Representatives might be good enough to provide it.
Senator RHIANNON: When were you told about that?
Senator Brandis: Some days ago.
Senator RHIANNON: Only days ago?
Senator Brandis: More than days ago. Some weeks ago.
Senator RHIANNON: In that time, considering it is a considerable change from what was passed by the Senate, what steps have you taken?
Senator Brandis: None.
Senator RHIANNON: You are not planning on reporting that to the Senate?
Senator Brandis: No.
Senator McALLISTER: I would like to ask a follow-up. Who provided that advice to you, Minister?
Senator Brandis: I was advised by a House of Representatives colleague that they had received advice from the Clerk of the House of Representatives.
Senator McALLISTER: So a colleague is in possession of formal advice.
Senator Brandis: I do not know whether it was written or oral. I did not ask.
Senator McALLISTER: Are you able to tell us who the colleague was?
Senator Brandis: I am not proposing to, no, for the very simple reason that I never disclose private conversations.
Senator RHIANNON: Considering the Senate passed this—so it is a decision of the Senate—that you are a minister in the government and that you have been given this information, why are you not planning on reporting at least the information that we are apparently in conflict with how the House of Representatives works or coming forward, possibly, with advice on how that should be handled?
Senator Brandis: Senator Rhiannon, if the Senate—and I am not necessarily saying this is the ultimate conclusion—passes a resolution that is legally or constitutionally incompetent, then it is not for me to correct the Senate, but, as I said to you, the government is considering the implications and the reach and its obligations, if any, arising from this order.
Senator RHIANNON: You have just said, 'the government is considering,' will it issue its decision publicly or is this something that is just internal? What do you mean by 'considering'?
Senator Brandis: I meant 'considering'.
Senator RHIANNON: Seriously, we are at estimates, that is a fair question to ask. Is it going to be reported publicly or is it not, because when you answer it like that it sounds like it is opaque. Transparency has nothing to do with your government when you speak like that.
Senator Brandis: Senator Rhiannon, you are entitled to make whatever political points you like in this forum, but I understand that House of Representatives ministers, on the basis of advice from the House of Representatives Clerk, have formed the view that the injunction of this order does not extend to them. Because of the way in which the order is expressed a question then arises about whether Senate ministers are bound either because the order is expressed in terms of generality, so, if there is a severable obligation upon Senate ministers, then perhaps they are, if there is not a severable obligation so that the order is incompetent entirely, then there is nothing to comply with, and that is the question the government is considering.
Senator RHIANNON: I actually have three questions on notice—it was from the October estimates last year—about former ministers Andrew Robb, Martin Ferguson, Ian Macfarlane and Craig Emerson. In all of them DPMC failed to answer the question whether it is the policy of this government to decline meetings with former ministers inside the cooling-off period.
Senator Brandis: Senator Rhiannon, if you would be good enough to tell us the reference number of those questions that were taken on notice, we will have a look at them and I will see if I accept your assertion that the department failed to provide the answer. Ms Kelly has provided me with one of your questions, which is question reference no. 10.
Senator RHIANNON: Is that Martin Ferguson?
Senator Brandis: It says:
The Statement of Ministerial Standards was tabled by the Acting Prime Minister on 11 December 2013.
The Department of the Prime Minister and Cabinet (PM&C) is not in a position to answer a question about the practice across government regarding meeting former Ministers. PM&C notes, however, clause 2.24 in the Statement of Ministerial Standards referred to an eighteen month period where former ministers will not meet with members of the public service on any matters on which they have had official dealings as a Minister in their last eighteen months in office.
So it is a little different from what you have said, Senator.
Senator RHIANNON: I will come back to those and try again. Just to finish off, it was also last October that I asked about this and you could not tell me about any procedures you had in place to make sure the standards were abided by. Do you now see that as irrelevant or negated because of what has happened in the House of Representatives?
Senator Brandis: I do not even know what you are talking about, Senator.
Senator RHIANNON: It is a question where I was asking about the procedures.
Senator Brandis: Senator, perhaps I can approach or try to respond to you in this way: the government will comply with its obligations under all proper orders of the parliament, but, if an order has been made by a house of the parliament in terms which are beyond its jurisdiction or otherwise incompetent, then there is nothing to comply with.
Senator RHIANNON: But haven't you contradicted yourself then? You said that the government would comply with proper orders of parliament.
Senator Brandis: Proper orders.
Senator RHIANNON: We have a proper order of the Senate.
Senator Brandis: No, Senator.
Senator RHIANNON: Exactly.
Senator Brandis: There is very much a question about whether there is a proper order of the Senate.
Senator RHIANNON: Yes, but all you are relying on at the moment is that you have been told something by somebody in the House of Representatives, you said you have not actually seen anything written down, and you are not planning on saying anything in the Senate. So how can you say that there is a commitment from the government to abide by the proper order of parliament when we have what is standing as an order in the Senate. questioned I acknowledge by the House of Reps, but here, you, as the Attorney-General sitting in the important seat of government in cabinet, are not willing to sort this out. So how can you say that there is that commitment?
Senator Brandis: When you say 'sort it out', if the Senate, or a majority of senators, vote for an order which on closer scrutiny appears to be incompetent for jurisdictional reasons then that is not a question for me—
Senator RHIANNON: But how can you say 'close scrutiny' when you have not seen it?
CHAIR: Senator, please allow—
Senator Brandis: That is not a question for me, Senator.
Senator RHIANNON: Well, who is it a question for?
Senator Brandis: If the view, after careful consideration and after taking appropriate advice, is that the order is not capable of compliance then it is an incompetent order.
Senator RHIANNON: Thank you. Thank you, Chair.
CHAIR: Senator Rhiannon, you had similar questions on this topic? Let's continue on that for a moment. Senator Rhiannon.
Senator RHIANNON: Thank you, Chair. Minister, does the government support, in the statement of ministerial standards as endorsed by the Prime Minister in 2015, paragraph 2.24, which relates to post-ministerial employment?
Senator Brandis: This is the government's own statement. Of course it supports it.
Senator RHIANNON: So it is supported. Thank you. If Mr Ian Macfarlane had lobbied in the way described in the earlier question, in speaking to mates in Canberra in regard to native title and the Adani mine, would this be a breach of those standards?
Senator Brandis: It is a hypothetical question, but the point I made to you when we canvassed this a little while ago is that, in interpreting the ministerial standards when it comes to lobbying, one would naturally have regard to what lobbying means as defined by the lobbying code of conduct—in other words, paid third-party advocacy. That is not what Mr Macfarlane has been engaged in. Mr Macfarlane has been engaged, apparently, in making representations directly on behalf of his own industry association. That is not lobbying as the lobbying code understands lobbying to be.
Senator RHIANNON: But, Minister, I started off by asking you if the government supported 2.24, and you were very clear, saying that it is the government's—
Senator Brandis: We do. It is our document. So of course we support it.
Senator RHIANNON: Yes. And that is not about the lobbying code. It says, 'Ministers—
Senator Brandis: Yes, but the operative concept is lobbying.
Senator RHIANNON: But—
Senator Brandis: And if we asked ourselves the question, 'What is lobbying?', then the place of first inquiry is the lobbying code, which does give meaning to the term—that is, paid third-party advocacy.
Senator RHIANNON: But, Minister, when you take the words that you have just said and put them beside this, it sounds like you are trying to muddy the waters. That is why—
Senator Brandis: No, I am not trying to muddy the waters. I am trying to insist on precision.
Senator RHIANNON: Chair, I should be allowed to finish my question. Let's read it out, because you are trying to shift it over to the definition of lobbyist. But 2.24 states:
Ministers are required to undertake that, for an eighteen month period after ceasing to be a Minister, they will not lobby, advocate or have business meetings with members of the government, parliament, public service or defence force on any matters on which they have had official dealings as Minister in their last eighteen months in office.
That is what we are dealing with and that is why I asked you about Mr Macfarlane. It is not about the lobbying definition. It is about that.
Senator Brandis: Well, okay—
Senator RHIANNON: And that was what my question referred to.
Senator Brandis: It is not apparent to me that Mr Macfarlane has done that. Even if the meaning of the conduct described in paragraph 2.24 is broader than what the lobbying code of conduct defines lobbying to be, it is not for a moment apparent to me that Mr Macfarlane has engaged in any such conduct.
Senator RHIANNON: Even with what was reported in the Townsville Bulletin about how he boasted at a business function that he would talk to his good mates in Canberra with regard to native title laws and the Adani coalmine? You do not regard that as being captured by 2.24?
Senator Brandis: Not necessarily. Not if the concept that is being caught here is advocating on behalf of third parties. He was not advocating on behalf of a third party.
Senator RHIANNON: That is not what 2.24—
Senator Brandis: That was advocating a point of view on behalf of an industry association that he heads.
Senator RHIANNON: And that is why I draw your attention back to 2.24. The fact that you keep bringing that in starts to sound like you are working out a defence for the former minister.
Senator Brandis: No, I am just trying to work out what it means.
Senator McKENZIE: He is just trying to be helpful, Senator.
Senator RHIANNON: That sounds really helpful coming from you, Senator McKenzie.
Senator Brandis: What I am trying to do is understand what the meaning of these words are.
Senator RHIANNON: If there was a breach of 2.24, what are the consequences, please?
Senator Brandis: Well, I am not acknowledging that there was a breach.
Senator RHIANNON: No. That was not my question. It is a new question.
Senator Brandis: Yes.
Senator RHIANNON: I have not named anybody. If there is a breach—fair question—of 2.24 what does the government do?
Senator Brandis: I am not going to get into the business of answering hypothetical questions.
Senator RHIANNON: It is not a hypothetical question; it is a process question, to understand—
CHAIR: Senator Rhiannon, the minister was part-way through—
Senator RHIANNON: It is fair, Chair.
CHAIR: answering your question. Please give him a moment.
Senator Brandis: This is a code of conduct. It is not a set of legally enforceable obligations; it is a code of conduct.
Senator RHIANNON: And so the next question is, and it is a fair question—you sit at the table of government. There is increasing public concern about the standards of how government works. We have a very clear requirement there about ministers when they leave office and how they will work, something that will give the public more confidence—as millions of dollars swirl around this place as people come in to lobby—about how the process of governments works. And you will not answer what will happen if 2.24 is broken.
Senator Brandis: I was just saying that it is a code of conduct.
Senator RHIANNON: Will you answer it?
Senator Brandis: These are not legally enforceable obligations. It is a code of conduct.
Senator RHIANNON: Therefore the code of conduct is broken and nothing happens. Is that the conclusion?
Senator Brandis: It sets a standard that those to whom it applies are expected to observe.
Senator RHIANNON: And if they do not observe it, we do not have consequences.
Senator Brandis: There are no legal consequences because it is not a legally enforceable document.
Senator RHIANNON: So there are no legal consequences? Any consequences—
Senator Brandis: It is not a document that imposes legally enforceable obligations.
Senator RHIANNON: That is very clear. Thank you for clarifying it. Are there any consequences at all?
Senator Brandis: If the obligation were to be breached, the consequence would be that the obligation had been breached and the breach of the obligation would be a fact that would, no doubt, attract notoriety and censure.
Senator RHIANNON: Thank you.