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  4. 24 May 2006

Business of the House

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About this Item
SubjectsElectricity; Privatisation; Stock Exchange
SpeakersHarwin The Hon Don; Deputy-President (The Hon Christine Robertson); Chesterfield-Evans The Hon Dr Arthur; Della Bosca The Hon John; Brown The Hon Robert; Pavey The Hon Melinda
BusinessBusiness of the House, Division, Suspension of Orders, Suspension of Standing Orders, Motion


    BUSINESS OF THE HOUSE
Page: 201


    Suspension of Standing and Sessional Orders: Order of Business

    [Debate resumed.]

    The Hon. DON HARWIN: The power of the House to call for documents has been conclusively resolved by litigation—that is, in the cases of Egan v Chadwick and Egan v Willis. Those determinations should also cover committees, but that is not the advice that the Government has obtained from the Crown Solicitor and the House has advice directly contradicting that advice. This motion also raises the question of delaying tactics. The Government has displayed a consistent pattern of behaviour involving the effect of prorogation on the call for papers previously adopted by this House and certainly regarding what has been asserted today with regard to the call for papers by the committee. The second point under consideration is whether this issue should be adjourned until the next sitting day. One of the honourable members of the crossbenches has asserted that the Government needs more time to consider its position on this second call for papers. I do not want to be unfair to the honourable member, but when the issue was debated a couple of weeks ago it was said that there were problems. I cannot understand why we need to adjourn this matter.

    Reverend the Hon. Dr Gordon Moyes: It will allow the committee to examine it in detail tonight.

    The Hon. DON HARWIN: The Government knew prior to the prorogation, when we last sat more than 10 days ago, that it had a problem with Ms Sylvia Hale's motion. It is nonsense to suggest that the Government needs another day to consider it. I am sure that the Minister is sitting at the table with his suggested amendments. It beggars belief that he intends to spin a line to honourable members of the crossbench about why he needs another day to look at this in detail. He is treating the House and honourable members with absolute contempt. It is nonsense that the Government needs another day to look at the motion. The third point is the substantive issue, which relates to the Government's specific objections under the Corporations Act. I refer in particular to an Australian Securities and Investments Commission practice note that states:

    Ch 7 of the Law does not bind the Crown. This is because the Crown has direct immunity under the common law doctrine of the Shield of the Crown.

    That important point is being lost in the Government's suggestion that somehow the call for papers has been considered previously—

    The Hon. John Della Bosca: Point of order: The House is obviously taking the view that this is an important debate. However, Madam Deputy-President, I draw your attention to the fact that we are debating whether this motion should be adjourned until the next sitting day—that is, tomorrow. As have other honourable members, the Hon. Don Harwin is straying well away from the question before the House and into a substantive debate about the motion. As I have indicated, there is no difficulty in having this debate, but it does not relate to the question before the House.

    The Hon. Duncan Gay: To the point of order: Honourable members from the crossbenches who have spoken in this debate, including Reverend the Hon. Dr Gordon Moyes and Reverend the Hon. Fred Nile, have indicated a degree of concern about what could be released and have echoed the comments made last week by the Leader of the Government. We cannot address the motion before the House if we have one hand tied behind our back. The fact that the Minister has already made a speech on this subject and that the Government has already briefed crossbench members about their concerns, which is prompting them to say that they would like this matter adjourned to be able to consider the issue further, indicates that we must address those concerns now. The Hon. Tony Kelly is earnestly working his hardest at the moment with members of the crossbenches—

    The DEPUTY-PRESIDENT (The Hon. Christine Robertson): Order! The Deputy Leader of the Opposition should address the point of order.

    The Hon. Duncan Gay: Thank you, Madam Deputy-President, for your guidance in this matter, but I am addressing the point of order, which relates to the material that the Hon. Don Harwin is raising. That material is a rebuttal to the Government's argument that has been put previously in this House and about which crossbench members have been briefed in private. We cannot address this issue with one hand tied behind our back. Madam Deputy-President, you should rule that there is no point of order.

    The DEPUTY-PRESIDENT (The Hon. Christine Robertson): Order! The Hon. Don Harwin will confine his remarks to the question before the Chair, and that is whether debate on the motion should be adjourned until tomorrow.

    The Hon. DON HARWIN: I will confine any comments I have about Crown immunity and privatisations to a direct response to what Reverend the Hon. Fred Nile said about the need for advice on this matter and why it should wait until tomorrow—which, in fact, is what I was doing. The practice note that I referred to deals with the issue of direct immunity and privatisations. As I said, the Crown does not have to comply with chapter 7 and cannot incur civil or criminal liability under the law for conduct relating to that privatisation transaction.

    Under certain circumstances the Crown is not bound by sections of the Corporations Act that would normally apply to a private person. Therefore, the inference could be drawn that the New South Wales Government would have direct immunity from the Corporations Act for documents released to members of Parliament relating to the offer to sell shares in a company. This is well-understood law and part of a practice note on how the Australian Securities and Investments Commission [ASIC] operates, and debate on the matter should not be adjourned until tomorrow. Earlier my colleague the Hon. John Ryan referred to the code of conduct of members of the Legislative Council, which makes it quite clear that even if the position relating to ASIC were not so clear, the code of conduct for members of the Legislative Council covers the situation in any case because of what the code provides with regard to the behaviour of members and what we need to do with privileged information. As a number of my colleagues have pointed out, a large number of people will see these papers, not just lawyers—public relations people and financial advisers. To suggest that members of this House, who are bound by a code of conduct, cannot look at documents in relation to which privilege is claimed is just nonsense.

    The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.22 p.m.]: The Government well knows it is selling this iconic asset against the will of the people. Just as Prime Minister Howard took us into a war that 75 per cent of Australians were against, this Government wants to sell the Snowy against the will of a huge percentage of Australians. The Government is trying to delay the presentation of information and has tried to use the prorogation of the Parliament as a further delaying tactic. Meanwhile, the Government is still going ahead with advertisements in the newspapers regarding the sale.

    [Interruption]

    I acknowledge the interjection that the prorogation directly has nothing to do with it, but the fact is that the Government is trying to use procedures associated with the prorogation to delay the release of documents about which it has known for many days. It wants to delay everything so that the Government's other activities outside this Parliament will proceed and will have time to gain traction. The Government can then say, "Regardless of what the committee says, we have already sold the Snowy. Tough luck! The investors are all on the register and they are all demanding their money. Of course they know an idea when they see one." We have to have access to these documents to find out what is going on in order to do our job, which is to hold the Executive responsible to the Parliament—as opposed to its usual form of making a decision and requiring Labor Party members to file into the Chamber to take part in a farce. They engage in the pretence of making a decision in the Chamber, when the reality is that they have been told what to say in the party room.

    The lower House is a rubber stamp for the Executive, as we know. This House does its best despite the Government bullying and conning members of the crossbench and sometimes the Opposition conniving with the Government to achieve a result. But on this occasion we are making a stand. This information has not leaked from any other documents, and it is time that this information came out. New Zealand legislation that provides that all information is open unless the government of the day applies to make it a secret is very successful, but this Government will not release information about anything unless it absolutely has to, despite Egan v Willis. Well, it is time that this information was made available.

    The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [3.24 p.m.]: Madam Deputy-President—

    The Hon. Michael Gallacher: The Minister has already spoken. He cannot reply now.

    The DEPUTY-PRESIDENT (The Hon. Christine Robertson): Order! The Minister has not contributed to the motion to adjourn the debate.

    The Hon. JOHN DELLA BOSCA: I will be very brief because it is likely we will be discussing these matters for some time and it is certainly likely that we will be discussing them again tomorrow. I make two points. The other day, immediately after the prorogation of the Parliament, the Clerk advised me that it was necessary for us to go through the exercise of acknowledging the ancient Law of Evidence Bill. The reason that is done is to assert the right of this Chamber of Parliament to deliberate on matters independent of the Crown. That is, the members of this House are not just taking the direction of the Government to proceed with business.

    The whole system works on the basis of a logical and natural tension. No-one makes requests of papers of the Government, of the Chamber, of any individual member or of any committee; papers are ordered to be produced. That is the whole point. The Chamber orders the Government—and has done successfully on many occasions—to produce papers. The Government, because it is an executive and because it has to make discretionary determinations about government from time to time, may decide that it does not want to produce such papers to a Chamber of the Parliament, but this Chamber has the power to order the Government to do so. There is no question of politeness involved here, no-one is being rude to anyone, and there is no intention of disrespect. I repeat: The basis of the system is tension between the parliamentary responsibilities of members in this House and the executive responsibilities of those of us privileged to hold executive office in the Government.

    I make that point because members are getting very excited about a concept that somehow the Government is being arrogant or refusing to co-operate. The Executive Government sought advice from the Clerk about the consequences of prorogation with regard to, among other things, the production of papers. The fact of the matter is that the Government is not under an obligation to produce any papers when it takes the view that it is not in the public interest to do so, but it may, in certain circumstances, be obliged to do so whether it likes it or not. Regardless of whether we exercise a judgment that we should or should not, we are obliged to do so. That is a very important and fundamental power that this House has, and it is one that I respect. My entire time as a member of this House has been as a Minister in the Government, so I have had experiences additional to those had by Government members who have not been Ministers or those who have spent their time in Opposition. That has obviously tested our patience and resolve from time to time.

    It has been suggested that some crossbench members have been given privileged or different information. For the record, Reverend the Hon. Fred Nile, Reverend the Hon. Dr Gordon Moyes and Ms. Sylvia Hale have received less information about these matters than that received by senior members of the Opposition. It just so happens that I had the opportunity to discuss these matters in some detail with the Deputy Leader of the Opposition and previously with the Hon. Greg Pearce. This is a movable feast; there are issues that need to be determined about these papers. I had a very quick, off the shoulder conversation with Ms Sylvia Hale and other members of the crossbench a short time ago about the consequences of prorogation.

    So in the context of what we are asking for, it is not that no papers will be delivered as a consequence of an order for the production of papers. Of course there will be. The point that the Government is making is that, given the principle of the Corporations Law and the obligations under that law and the rules of the Australian Stock Exchange, what is important is the natural tension between the Executive Government and the responsibilities it may or may not have in this Chamber.

    I have taken the opportunity to canvas a number of Government amendments to Ms Sylvia Hale's motion. I have not had another opportunity to discuss the matter with the member, although I did have a brief discussion with her when she moved her original motion. I am asking for the matter to be adjourned for one day to allow more detailed discussion about the amendment that the Government wants to move because we believe it is in the public interest to do so. That is the only reason. We do not seek to be arrogant or to hide anything from the Chamber. We accept that as a consequence of Egan v Chadwick this Chamber has the power to order us to produce papers.

    The Hon. ROBERT BROWN [3.30 p.m.]: Not to put too fine a point on it, I feel like a lamb in a field with a very hungry fox on one side and a maremma on the other. The only trouble is that they keep changing identities every 30 seconds as I take advice from them. I find it a bit incongruous that Ms Sylvia Hale, in speaking against the adjournment, referred to urgency and the effect that prorogation has had on this item of business, whereas this morning the Greens were prepared to forgo decisions made by the House prior to prorogation with respect to a motion I moved relating to a bill of the Hon. John Tingle. However, having said that, as I said in my inaugural speech I clearly do not support—nor do my members—the sale of the Snowy scheme and I need more time to think about the matter as I have received too much conflicting advice in relation to it. The Christian Democrats have a point, and I support the adjournment.

    The Hon. MELINDA PAVEY [3.31 p.m.]: I do not support the Government's intention to adjourn this debate. The Government has had plenty of time to provide information. I take this stance not from any personal, emotional point of view, but on behalf of the good people of this State, who are concerned about the sale. The Hon. John Della Bosca referred to Corporations Law, but there are other aspects of Corporations Law that are important, and they were specifically referred to by the Hon. Don Harwin. The Crown does not have to comply with chapter 7 of the Corporations Act and cannot incur civil or criminal liability under the law or conduct relating to that privatisation transaction. The Government has provided certain advice but not advice stating that the Crown is not liable in the same way as a private company would be liable.

    The select committee is meeting tonight and has an important part to play. I respect the position put by Reverend the Hon. Dr Gordon Moyes. This is a difficult debate and it is all about timing. However, timing is important to the committee and it is important for the committee to have access to information quickly. Early we had a brief discussion with Reverend the Hon. Fred Nile about the information that is needed. We are not aware of what information the Government has in its possession so the call for papers and information must be broad. As parliamentarians we accept that certain documents may be privileged and as such should not be seen by the general public. As members of Parliament we have responsibility under our code of conduct to ensure that any call for privilege is not breached.

    I do not support the motion to adjourn this matter for another day. We must move quickly because the Government is moving incredibly quickly on the sale. The prospectus is on line and even the local member, who says he is opposed to the sale, has said that he may even buy shares. There are many concerns, so we need to move quickly and in order to move quickly we need all the information that is available.

    Question—That this debate be now adjourned—put.
    The House divided.

    Ayes, 21
            Mr Breen
            Mr Brown
            Ms Burnswoods
            Mr Catanzariti
            Mr Costa
            Mr Della Bosca
            Mr Donnelly
            Ms Fazio            		Ms Griffin
            Mr Hatzistergos
            Mr Kelly
            Mr Macdonald
            Reverend Dr Moyes
            Reverend Nile
            Mr Obeid
            Ms Robertson            		Mr Roozendaal
            Ms Sharpe
            Mr Tsang


            Tellers,
            Mr Primrose
            Mr West
    Noes, 19
            Dr Chesterfield-Evans
            Mr Clarke
            Mr Cohen
            Ms Cusack
            Mrs Forsythe
            Mr Gallacher
            Miss Gardiner            		Mr Gay
            Ms Hale
            Mr Lynn
            Mr Oldfield
            Ms Parker
            Ms Pavey
            Mr Pearce            		Ms Rhiannon
            Mr Ryan
            Dr Wong

            Tellers,
            Mr Colless
            Mr Harwin
    Question resolved in the affirmative.

    Motion for the adjournment of debate agreed to.

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