Christmas fudge: eight ways to mislead the Senate - an update on Minister Scullion, the ILC, and the treatment of Senate Estimates Committees

‘Tis an ill cook that cannot lick his own fingers

Romeo and Juliet, Act IV, scene 2

Further to my recent post (link here) on the Minister for Indigenous Affairs’ failure to comply with his statutory obligations, the Minister has now belatedly provided his response to the question taken on notice during a recent Senate Estimates hearing.

In essence, the issue relates to the reasons for the failure of the Minister to terminate an ILC Director who missed five consecutive meetings in early 2018.

Section 192H(4) of the Aboriginal and Torres Strait Islander Act 2005 (ATSI Act) states:

If an Indigenous Land Corporation Director who holds office on a part-time basis is absent, except on leave granted under section 192C, from 3 consecutive meetings of the Indigenous Land Corporation Board, the Minister must terminate the appointment of the Director.

I recommend readers re-read my original post as I will cross reference key information therein in analysing the adequacy of this response.

Here is the question and the answer submitted on 17 December and copied verbatim from the Parliament web site (link here):

Senator the Hon Kristina Keneally: asked the Department of the Prime Minister and Cabinet on 2 November 2018

During Estimates, Senator Keneally asked:

Senator KENEALLY: I want to be clear. My concern is not so much with Mr Martin's actions. It is with the actions of the minister in accordance with the act. As you have flagged, if there are particular challenges of people being able to attend meetings or being supported to do so, could you also provide advice as to what you are doing to address that. Senator Scullion: I will take that on notice. I appreciate your comments, Senator. This is about me and this is about the board and reporting on the act. I do appreciate that that is what the questions are about. I will provide a comprehensive answer to that on notice.

Can the Minister advise what steps he has taken in this matter?

Answer — The Indigenous Land Corporation Chair wrote to the Minister for Indigenous Affairs, Senator the Hon Nigel Scullion, about the absences of Mr Martin and subsequently confirmed on 31 August 2018 that Mr Martin had been granted leave of absence from these meetings.

Perhaps the easiest way to analyse this answer is to focus on how many ways it manages to mislead the Senate.

First, the Minister promised a ‘comprehensive response’. He acknowledged that the question was about his actions (or inactions), about the Board’s involvement, and about the reporting from the ILC of relevant information.  He provided his response in one sentence of 42 words, with no explanation of his role and actions, vague reporting of the ILC Board’s role and involvement, and no information on the adequacy of the reporting of relevant information in relation to the requirements of the Act. This is patently not a comprehensive response. On the basis of this response, the Minister’s statement to the Estimates Committee that he would provide a comprehensive response was patently misleading.

Second, the ILC Chair wrote to the Minister about some but not all of the relevant absences of Director Martin (see my previous post for details). The answer provided states that the Chair wrote to the Minister about the absences, but in fact he did not mention all the absences. It is misleading in this respect.

Third, the Chair of the ILC wrote twice to the Minister (see previous post for details), once on 4 May advising that the requirements of the legislation relating to termination of the Director had been met and requesting that Director Martin be terminated in accordance with the Act, and later in July reversing his position and suggesting termination was no longer required (notwithstanding the clear intent of the legislation). The Minister’s failure to outline and explain this is misleading by omission.

Fourth, the response states that the ILC Chair had confirmed in a letter dated 31 August 2018 that Director Martin had been granted leave of absence from ‘these meetings’ (ie the incomplete set of meetings). The Minister’s response omits to mention that the granting of leave of absence was retrospective, and is thus misleading by omission.

Fifth, the response fails to mention that while the ILC Chair did confirm that leave of absence had been granted, the ILC had subsequently formed the view that the Chair’s purported actions in granting retrospective leave of absence were beyond his authority, and thus of no effect (see previous post for details). The Minister should have been advised of this discovery particularly as it meant that the 31 August letter to the Minster was substantively incorrect. By the time the Estimates questions were answered, the relevant information was available on the ILC FOI log and had been the subject of an article on 14 December in the Mandarin (link here). There seems little basis for an argument that the Minister or PMC were not aware that the 31 August letter was substantively incorrect (and if they were not, they should have been), yet the Minister went ahead and used it as the basis for his lack of action in his response to the Senate. The response was thus fundamentally misleading in relying on the ILC Chair’s 31 August letter without further explanation.

Sixth, the response omits to mention that the Minister and the Chair had discussed the issue in June (refer previous post). The response not only fails to indicate the tenor and content of those discussions, but avoids any mention of the meeting notwithstanding that it was clearly a crucial element in the Minister’s consideration of the events. Given that the question explicitly refers to ‘what steps’ the minister took, the response appears to be deliberately misleading in relation to this meeting albeit by omission.

Seventh, the response omits to deal with the issue of the delay between the third consecutive missed meeting (on 9 March 2018) and the eventual effective granting of retrospective leave of absence on 1 November, a period of almost eight months. Even were we to grant the Minister the benefit of the doubt and use the purported granting of leave of absence in August as the relevant date, the delay amounts to almost six months.

Eighth, the response provides no information or any explanation for the Minister’s failure to act in a timely way to comply with his statutory obligations under the legislation. It is clearly deliberately misleading in this respect.

What might we make of all this. I focus on two general points.

The first relates to the particular issue relating to the minister’s statutory obligations, and the analysis in my previous post. The Ministers ‘explanation’ offers no alternative explanation which might cast doubt on my earlier analysis.

It leaves major questions unanswered concerning the quality of governance within the ILC under the current Chair’s tenure, the quality and accuracy of information provided to the Minister, the processes put in place by PMC to ensure the Minister is in a positon to carry out his statutory obligations under the Act, and to oversight more generally the activities and operations of a statutory corporation within his portfolio. Further, while it implicitly lays blame and attention on the information provided by the ILC, it fails to acknowledge that that information was in many respects incorrect, misleading and inaccurate, and it fails to identify what action the Minister has taken or intends to take to rectify these deficiencies in the future.

Most importantly, the response and ‘explanation’ fails to address the likelihood that the Minister played a direct role in encouraging the Chair to change his formal advice and instead request that the Minister defer action while a retrospective leave of absence for Director Martin was put in place.  Determining what transpired in relation to this issue goes to the heart of determining what has occurred here, and has significant implications for the independence of the ILC. It also raises serious questions about the capacity and preparedness of the ILC Chair and ultimately the Board to carry out their statutory responsibilities independently of Ministerial interference. All in all, the extreme parsimony of the Minister’s response only adds to the weight of suspicion that he was involved in an inappropriate plan aimed at avoiding the necessity for him to carry out his statutory duty.

The second point relates to the apparent disdain with which this Minister treats the Senate and in particular the Senate Estimates Committee. He promised a comprehensive response and delivered what amounts to a deliberately misleading fudge. He missed the key deadlines in terms of the provision of answers. And he comprehensively failed to adequately explain why it is that he failed to act in accordance with his statutory obligations.

Of course, this is an issue which goes beyond this Minister, and appears to be part of an inexorable slide in the influence of the Parliament vis a vis the Executive. It is time that the Parliament stood up to the Executive, demanded substantive accountability from Ministers. 

In particular, it is to be hoped that the Senate will refuse to accept the self-serving fudge this Minister serves up to them and in turn, to the Australian people.