Yes Minister performance on food industry conflict earns Assistant Health Minister Nash a censure

Assistant Health Minister Fiona Nash has been censured by the Senate for misleading it and refusing to produce documentation on the “undertakings” given by her former chief of staff Alastair Furnival to “separate him” from his former role as a food industry lobbyist.

The censure, supported by Labor and the Greens, has no “direct constitutional or legal consequences”. But it draws attention to her recent appearance before the Senate Estimates Committee which was often excruciating in the best (or worst) Yes Minister traditions and did little to quell concerns about the influence of the food industry on her office.

Nash was questioned by Labor Senators Penny Wong and John Faulkner and the Greens Richard DiNatale over the time it took Furnival to divest himself of his commercial interests, how his undertakings to do so had been documented, what Nash had done to ensure he had complied, and concerns she misled the Senate.

As background, concerns about his connections arose when he directed that a long-awaited food ratings website be taken down. Nash first told the Senate there was “no connection, whatsoever” between Furnival and Australian Public Affairs (APA), the lobbying firm he had owned and run with his wife, which had represented junk food providers Australian Beverages Council, Proctor and Gamble and Mondelez Australia, among others. Furnival resigned on February 14 after it was revealed he still held an interest in APA parent company, Strategic Issues Management.

Nash’s evidence to the committee made for compelling but frustrating viewing, as she refused to release evidence of Furnival’s undertakings and showed little she had done to make sure he quickly complied with them. She insisted repeatedly there had been no substantive reason for him to resign but that the issue was proving a “distraction” for the government and having “other impacts”, which she didn’t specify.

You can catch up on the full broadcast of the proceedings here: http://parlview.aph.gov.au/browse.php or read the full transcript. See below for some Twitter responses to her evidence and key exchanges from the proceedings which will give little comfort to those interested in transparency in government.

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Wong opened by saying she wanted to question Nash “in relation to her exercising her ministerial duties, and in particular the conflict of interest at the heart of her office….”

Nash: Firstly, I would repudiate your earlier statement that there is a conflict of interest in my office or that there has been a conflict of interest in my office. There has not….

I was completely aware of the issues relating to the employment of my former chief of staff relating to his former employment and his connection to APA and indeed the fact that {APA managing director} Tracey Cain was his wife. Because I was aware of those issues, I had a series of undertakings put in place so there could be no real or perceived conflict of interest.

Asked by Faulkner, why then she had told the Senate on 11 February that there was “no connection, whatsoever” between Furnival and APA, she said (with phrasing that she would repeat):

Nash: As you know, I was asked a question without notice. My mind, I do have to say, was turning to the substance of the issue, which was the separation between my chief of staff and the business. When I went back to my office and I reflected on the comments I made to the Senate I recognised that I did need to provide additional information to the Senate to ensure there was clarity around that. At no point did I intend to mislead the Senate.

She was then pressed by Wong on the extent of the undertakings in an exchange which became very tense when Nash insisted that Furnival and APA had gone “to every length” to meet her requirements, despite Furnival still holding an interest in the APA parent company Strategic Issues Management up until February 14.

Nash: The Australian Public Affairs company gave a commitment to me, an undertaking — Ms Tracy Cain — that there would be no representations to me, there would be no representations to (Health) Minister Dutton, there would be no representations to the department and there would be no representations to any minister relating to the health portfolio. That has been upheld. My chief of staff gave a series of undertakings ensuring a strict separation between the business of APA and himself. He had resigned as a director from the companies. The business itself, as I have indicated, would no longer lobby in any areas related to my health portfolio, and he advised the federal lobby register to delist a set of clients who had an interest in the health space. Now, they went to every length to ensure that that there could be —

Wong: They didn’t.

Nash: No, let me finish.

Wong: You should stop misleading. You are misleading again…..He did not resign.

Chair: Senator Wong! Allow the minister to finish.

Wong: You should stop misleading the Senate.

Nash: I am not misleading the Senate.

Chair: Senator Wong!

Wong: Chair, she said he resigned and he didn’t.

Nash: I appreciate you are trying as hard as you can — —

Wong: You are a minister of the Crown — behave like one!

When the issue arose again later, Nash sought to make a distinction between Furnival being a director – that is, still listed as one – and acting as a director.

Wong: That is the evidence you need to correct. He remained a director of the company which wholly owned APA until 13 February. That is the evidence you need to correct. How can you say there was a separation?

Nash: He was not acting as a director.

Wong: He was. The ASIC record —

Nash:  He was not acting as a director.

Wong: You cannot say that red is blue.

Nash: Yes.

Later, the Assistant Minister elaborated:

Nash: I am advised that he directed his accountant to remove him from all directorships. He is not, I am advised, acting as a director. If there has been some administrative error that left him on the website, that is a matter to be determined. But in terms of the processes of my office, he was not acting as a director and there was a strict separation between him and the businesss….

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The Opposition then sought to find out how Furnival’s undertakings had been formally set out and by whom (him, Nash, or the government’s staffing committee, which included Abbott’s chief of staff Peta Credlin). It was to prove quite a hunt.

Nash would not be drawn for some time even on how they were documented (“by letter or verbally or carrier pigeon”, she said at one point). Finally she conceded they were contained in a letter but refused to make it available. Here’s an edited version of the lengthy exchange:

Wong: Were the undertakings from Mr Furnival … documented anywhere? Were they included in a letter to you from the Prime Minister’s office? Were they included in a letter from you to Mr Furnival? You continue to hang your defence in great part on these undertakings. Where were those undertakings set out?

Nash: I have been very clear about the processes that were put in place to ensure that there was no real or perceived conflict of interest with the role of Alastair Furnival as my chief of staff. I have been very clear that a series of undertakings were required. They were provided to the government’s staff committee…

Wong: …How? Were they in a letter from you?

Nash: I am not going to comment on the internal workings of those arrangements. I can assure the committee that the government’s staff committee was provided with that information.

Wong: It is a factual question. It is a very simple factual question. There is no public interest immunity that attaches to it. I am asking if there is a document and, if so, what is the document in which the undertakings your chief of staff gave to deal with this conflict of interest is set out.

Nash: My chief of staff provided undertakings to me that were very clearly given to the government staff committee.

Wong: To you or to the committee or both?

Nash: I think I already said that they were given to me. I provided them to the government staff committee.

Wong: Are those undertakings set out in a document?

Nash: They are set out in a document.

Wong: What is the document?

Nash: I am not going to comment further on internal workings. I have been very clear that I have been very rigorous and thorough in terms of the undertakings that I required from my chief of staff, as I have said at the outset, knowing what I did about his work history. Now, how that was conveyed to the government staff committee, whether it was a letter or verbally or carrier pigeon, I have been very clear in advising you that that information was passed on.

Wong: Minister, was the document created by you or by your chief of staff?

Nash: The document was created with the intent of ensuring that I was aware of all of the facts.

Finally, the answer came.

Wong: Okay. Let’s go back to the undertakings. Did you write a letter or did Mr Furnival write a letter or document which sets out the undertakings as to what he was going to do to manage this potential conflict?

Nash: Mr Furnival was required to provide me an undertaking of what he was going to do. He did that by way of letter, and that is the matter.

Wong: Thank you. We got there eventually … Could you provide a copy of the letter, please?

Nash: I am not going to provide internal communications, no.

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With Nash insisting throughout that Furnival had separated himself appropriately from his old business and that there was no conflict of interest, Faulkner asked why, then, had he resigned and whether it had been “required” by Abbott’s office, others in the Government, or Nash herself.

Nash: He resigned because this issue was creating a degree of media interest, as you would know, was causing a distraction for the government and was also having other impacts. He felt it appropriate to offer me his resignation.

Pressed, she said no-one had requested her to terminate his employment, nor had she required it. Asked if she offered her own resignation to the Prime Minister:

Nash: I am not going to comment on discussions I have had with the Prime Minister or the PMO.

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Nash was also asked why it had taken so long for Furnival to divest himself of his APA interests, and what she had done to ensure he complied by his “undertakings”, in accordance with ministerial staff standards.

Wong: I am asking, first, in relation to the directorship, whether after the initial advice from your chief of staff about his instructions to his accountant {to resign his directorships} you ever, as minister, inquired as to the progress of that?

Nash: My assumption was that that had been completed.

Wong: So you did not inquire again?

Nash: No. That was my assumption.

Wong: In relation to the shareholding, and the undertaking from the chief of staff to divest, he indicated that to you at the outset of his employment in this letter?

Nash: Yes.

Wong: After receipt of that letter did you ever inquire as to the progress of that divestment?

Nash: Certainly, I was aware that it was still underway on a number of occasions.

Wong: So you asked him about it on a number of occasions?

Nash: I was aware that it was underway. We had a conversation.

Wong: What did you indicate to him had to occur? Did you have a conversation with him?

Nash: From my recollection, not of any great length. It was a complex process that was taking a period of time to complete.

Wong: So you did not tell him to get on with it, as it were?

Nash: I do not think there was anything untoward. It was just a process that was complex and taking a period of time to complete.

….

Wong: ….Did you ever inquire as to why it was taking so long  for him to comply with both the undertakings and the standards under the ministerial staff standards?

Nash: My understanding was that it was a complex and sometimes time consuming process.

….

Wong: Did you understand why it was so complicated to transfer a share to his partner?

Nash: In good faith I took the advice given by my chief of staff about the processes. The fact is that he took on board the undertakings that I had presented to him and in good faith moved to ensure that those undertakings were adhered to.

Wong: For five months you allowed him to hold shares and directorships in contravention of the ministerial statement of standards for staff.

Nash: Senator, I think we have canvassed the length of time…..

And did she know the process was still not complete when he directed that the department take down the food ratings website, which the food industry was strongly opposed to?

Nash: When my former chief of staff called the officer to take down the website that you are referring to, at my direction, I was clearly aware that he was still a shareholder because my previous answers indicate to you that that process was underway and had not yet been completed.

Wong: So you were clearly aware at that time, but you happened to forget that on Tuesday, 11 February, when you answered the question in the Senate?

Nash: I think that is possibly the 11th time we have canvassed this. I have given you my answer….

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Finally something for the ‘how hard should this be?’ box: Nash was asked whether she consulted with Furnival before she corrected her initial statement on his connections to APA to the Senate.

Faulkner: Did you seek advice from Mr Furnival about whether your statement was correct, or were you provided with advice from Mr Furnival? Did he have any input at all?

Nash: No.

Faulkner: He did not? Okay. So it was all your own work — or was it all your own work? Did you have communication with anyone to assist you — because it is unusual, and I think we all know that. You would acknowledge that it is unusual and never a happy circumstance for a minister to have to correct the record in parliament. You did not discuss that matter with Mr Furnival at all?

Nash: No.

Faulkner: Who did you discuss it with?

Nash: With my staff in my office who assisted me in putting the information together, and I took that to the Senate.

Faulkner: So the staff in your office but not your chief of staff.

Nash: No.

Faulkner: The person directly affected; the person about whom the issues were raised in the Senate.

Nash: Look, I —

Faulkner: It would seem illogical —

Nash: No, sorry.

Faulkner: to most people that you would not ask the actual individual involved, who is your chief of staff, who runs your office and the individuals in your office.

Nash: I will correct that, Senator Faulkner, and I do apologise. Yes, he probably was involved. I was thinking of another instance; I am sorry.

Faulkner: So we have changed that. He was involved?

Nash: Yes