30 August 2004

Scrafton ready for new Senate inquiry

A new Senate inquiry into the children overboard affair will be set up tomorrow and immediately move to call Defence Department whistleblower Mike Scrafton.

The inquiry will continue for at least the early days of the election campaign, focusing on what Prime Minister John Howard was told about the episode before the last election and the truthfulness of his public comments.

Several senior defence personnel who can corroborate that Mr Scrafton told them he had informed the Prime Minister that the allegations that asylum seekers threw their children overboard were false will also be asked to appear.

Mr Scrafton told The Age that he was ready and willing to testify before the new hearing, indicating he may have further revelations to make.

The inquiry will ensure a continued focus on the episode and on Mr Howard's credibility during the initial days of the campaign. Labor will also use the Senate sitting to grill Defence Minister Robert Hill on the overboard affair and a United States report slating an Australian officer for allegedly helping to gloss over claims of abuse of Iraqi prisoners.

Although the House of Representatives will not sit, the Senate will meet today and tomorrow and its committees can continue hearings throughout the election campaign.

Greens leader Bob Brown even raised the prospect of recalling the Senate during the campaign if matters of "national importance" emerged from the overboard inquiry.

Labor leader Mark Latham said Mr Howard was trying to avoid further parliamentary scrutiny of the children overboard affair by calling the election.

Mr Howard said the issue had been "done to death" and he had no further comment on it. He said the public would deliver its verdict on election day.

The Opposition leader in the Senate, John Faulkner, last night released the draft terms of reference for the new inquiry, saying that "the Senate must get to the bottom of this sorry chapter in Australian politics". They say the inquiry will examine Mr Scrafton's statements about his conversations with the Prime Minister.

Mr Scrafton said he would provide further details on the affair if asked by the inquiry. He conceded there were other areas he could "cast light on", including his conversations with then defence minister Peter Reith and Mr Howard's international adviser, Miles Jordana. The inquiry is likely to invite Mr Jordana and other Howard staff to appear, testing the Government's gag on them.

The two military investigators who backed Mr Scrafton's stance, Major-General Roger Powell and Commander Michael Noonan, are also likely to be called.

The Governor-General has the power to prorogue Parliament - ending a parliamentary session in order to hold an election - on the Prime Minister's instructions. The Senate may still be able to sit, according to its clerk, Harry Evans.

This constitutional debate may explain why Mr Howard's announcement allowed the Senate to sit until tomorrow afternoon.

I think Howard has given away the first week. The Senate will sit tomorrow and Tuesday. The Senate inquiry on the Truth Overboard incident will be reconvened. Last time, it failed to get to the bottom of anything because Labor voted with the government against the issue of subpoenas to ministerial advisers.

Paragraph 9 of Senator John Faulkner's draft terms of reference reads:

9. That the committee and any subcommittee have power to send for and examine persons and documents, to move from place to place, to sit in public or in private, notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives, and have leave to report from time to time its proceedings and the evidence taken and such interim recommendations as it may deem fit.

The first two days of this week will be dominated by the Senate sittings. The last three days will be dominated by the Senate committee. Without parliament sitting and with the campaigns still gearing up the media is going to have a feeding frenzy at the committee. The constitutionality of a Senate committee during a prorogation has never been tested, but there is not really any venue in which it can be tested. The government staffers could refuse to obey the subpoenas, but that's not going to be a good look at all for Honest John.

From Australian Senate Practice
On many occasions, Senate committees have continued their activities after the dissolution of the House of Representatives or prorogation of Parliament, including by taking evidence and presenting reports. The absolute privilege of these activities has not been called into question and the practice is now firmly entrenched in standing orders as well as being confirmed by declaratory resolution (22/10/1984, J.1276). The power of the Senate to authorise its committees to meet derives from the Senate's character as a continuing House and from the Constitution. (For the major discussion of the effects of prorogation, see Chapter19, Relations with the Executive Government, under Effect of prorogation.)

The 1984 resolutiuon (passed without division) says:

That the Senate declares that where the Senate, or a committee of the Senate which is empowered to do so, meets following a dissolution of the House of Representatives and prior to the next meeting of that House, the powers, privileges and immunities of the Senate, of its members and of its committees, as provided by section 49 of the Constitution, are in force in respect of such meeting and all proceedings thereof. (22/10/1984, J.1276)

This will be a really interesting week.

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