With the shenanigans of this week, and the demise of Malcolm Turnbull, last week’s Senate privileges committee report into the Godwin Grech business has dropped off the radar. It shouldn’t be permitted to.
The report is a remarkable document in a number of ways, few of them positive for the committee or for the Senate.
The committee criticised Ken Henry, not for anything to do with the subject at hand (and in fact they gave the tick to the conduct of Treasury’s David Martine, criticised for allegedly trying to stop Grech from answering questions), but because he had the flaming hide to send his submission to the committee about Treasury’s handling of Grech to the office of his Minister, Wayne Swan, and the Prime Minister.
It is standard procedure for departmental submissions to Senate committees to be cleared by their ministers, or even the Prime Minister’s office if the issue is high-profile enough. The Senate’s own rules in fact say that submissions “should be cleared” by ministers.
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Because the submission related to his department’s actions regarding Grech, rather than government policy, Henry didn’t clear his submission, he merely provided it to the Treasurer’s and Prime Minister’s offices for their information. He later noted that the Treasurer, PM and their staff members were all discussed in the Treasury submission. The clear implication is that it would have inappropriate for Henry NOT to have told the Prime Minister, the Treasurer and their officials what he had said about them.
Being sensitive to the Senate’s prickliness about such matters, however, Swan’s and Rudd’s offices sent the submission back and told the committee.
The committee jacked up and criticised Henry, saying the only way he hadn’t avoided contempt of the Senate was because Swan and Rudd’s offices had returned the submission. In its report, the committee piously declared that for “this kind of inquiry”, public servants “should not regard themselves merely as an extension of the relevant minister’s office (let alone the Prime Minister’s office), and therefore free to share all relevant information about the inquiry, including submissions, with that entity”.
It may seem trivial, but it shows the Senate at its pompous best. At the core of the complaint is the idea that a public servant might have a separate relationship with Parliament than via the Executive.
Governments are elected. Public servants work for them. The Senate, which is not even elected on a one-vote, one-value democratic basis, has no business trying to have a separate relationship with public servants. In fact the Senate’s own guidelines for witnesses take that approach. Indeed, heads of agencies and other very senior offices need to consider carefully whether, in particular cases, it is possible for them to claim to appear in a “personal” rather than an “official” capacity, particularly if they are likely to be asked to comment on matters which fall within or impinge on their area of responsibility.
Anyway, such issues are likely to only be of interest to Canberra obsessives.
But the committee wasn’t finished. It proceeded to attack the Australian Federal Police. Their sin? They had provided the committee with a submission and attachments, and then spoken to the Commonwealth Director of Public Prosecutions, the Minister for Home Affairs and the Treasury about whether the material should be kept confidential, out of concern that its publication by the committee might jeopardise future prosecutions.
The committee disliked that, too, and criticised the AFP, and also criticised Ken Henry again because Treasury, when consulted by the AFP, had shown the AFP advice it obtained from the Australian Government Solicitor saying Henry had not been in contempt in the first place.
One, perhaps unfair, interpretation of all that is that, as far as the Senate is concerned, its dignity is more important than even the risk of jeopardising criminal prosecutions.
Now, all that is a kind of context to something else the committee did, or rather didn’t do.
Part of what Ken Henry gave the committee was a huge pile of emails from Godwin Grech’s Treasury email account. We ran selected highlights last week.
The emails are highly unflattering to Grech, the coalition, and a number of Liberal-linked luminaries such as Credit Suisse’s John O’Sullivan.
Under normal circumstances, that material would have been published online, like all submissions to Senate inquiries are unless they are determined to be confidential. But when the committee published its report last week, the Treasury material wasn’t available online. You had to get a hard copy from Parliament House to see what Godwin had been saying about Malcolm and Eric.
The committee had agreed that many of the emails needed to censored to protect privacy. That was done. But a clue as to why the Committee didn’t make the material available online can be found right at the end of the body of the report.
The committee was unable to agree on the publication of the documents submitted by the Treasury Department on 18 August 2009. Government members of the committee who comprise the majority of the committee agreed to the publication of most of those documents in whole or in part, while opposition members of the committee disagreed with the publication of a significant number of those documents on the basis that their provision was gratuitous and unnecessary to the findings of the committee. As those documents were not created for the purpose of submission to the committee, its majority decision does not affect any other use or publication of the documents by their owners.
The committee chair, and report author, is Liberal Senator George Brandis. Plainly, Opposition senators didn’t like anyone seeing what really happened behind the scenes with Grech, and the extent to which the man was clearly acting utterly inappropriately in full view of senior Liberals.
And in its conclusions, the committee couldn’t see its way clear to actually finding Grech had been in contempt of the Senate.
Although evidence was given to the Economics Legislation Committee by Mr Grech that was objectively false and misleading, and although the committee was also misled by references to an email later revealed to have been fabricated by Mr Grech, this committee has not been able to make findings about Mr Grech’s state of mind at the time he took those actions. A finding of contempt by misleading a Senate committee depends upon the existence of a subjective intention to do so.
Grech declined to appear before the committee on health grounds — his mental and physical health problems are well-known — and accordingly the committee felt it couldn’t determine his state of mind, despite clear evidence that he had misled the Senate.
Bear that in mind if you ever find yourself in the position of having misled the Senate.
And it found no cause to question the conduct of Eric Abetz, who was gulled into orchestrating this entire affair using the resources of the Senate.
A strange position from which to criticise the behaviour of public servants just trying to do their jobs.