Production of Documents

Mr BARBER (Northern Metropolitan) — I will just address a few of the points that Ms Pulford made in arguing for her motion. Ms Pulford suggested that the length of suspension of six months is outrageous and unprecedented, but the length of the suspension is in the hands of the government. It needs to provide the documents that the house has requested.

She also suggested that the voters of the South Eastern Metropolitan Region would be disenfranchised as a result of not having Mr Jennings in this chamber. South Eastern Metropolitan Region voters, or at least the ones who have been writing to me lately, are quite keen to find out how it is that a previous proposal to put the Dandenong-Cranbourne line underground was canned when this government came in and replaced it with a proposal, sometimes called sky rail, where it is to be constructed above ground. However, I would have to say that the piece of information I am most interested in in relation to that is how it is that Metro got to pitch for the original job and, when it was rejected, still managed to get a great chunk of the new job anyway. That is the exact reason why we have requested this particular set of documents be tabled. The Labor Party rejected an unsolicited proposal from Metro to rebuild that line and replaced it with its own new proposal, and we know very little about the business case or indeed the environmental effects of either.

And so it goes on as we go down through the line. The government has told us that the grants to try to find new uses for brown coal in the Latrobe Valley — very polluting uses are proposed — are some sort of big secret. The government calls it commercial in confidence. This is apparently a principle. One of the constructs of executive privilege is commercial in confidence. I do not know where this arose from and I do not know what the source of this stream of power is, but suffice to say it means little more than the fact that the government and the company may have put their heads together and said, 'This is all a bit awkward. We don't really want to talk about this, so we're not going to give them the documents'.

They gave us some of the documents. They gave us a boilerplate contract. Then in a bit of a drip-feed as we got closer to this day they gave us a bit about the milestones that the company has to achieve in order to get these grants. Then we in fact find out — and it has been 12 months since we first asked for the documents — that the company is about to fail its milestones and therefore the money should be withdrawn, but the one bit that the government will not give us contains the conditions in the contract under which the government could break the contract.

Government members have been saying since they arrived, 'We can't break these contracts. These grants for new uses for brown coal were signed by the previous government, and we can't break them'. But conveniently they cannot show us — much as they would like to — the bit of the contracts that says when they can or cannot break them. You would have to be a childlike innocent to believe that explanation from the government in relation to that particular document.

In relation to the grand prix contract, this is where they come back to their concept of statutory secrecy — that when Parliament passed a law requiring someone else to keep something secret, that meant the Parliament was passing a law on itself to say it can never see the information. That is a pretty interesting concept when you realise that the Auditor-General in fact has got the power to look at any document he wants, including cabinet documents, but apparently Parliament does not have that power. The stream can rise above that source. The Auditor-General, who got his power from Parliament, has actually got more power than Parliament now, we are told.

In regard to the deliberations of cabinet, some of the deliberations of cabinet probably would attract an R-rating if we were to have those exposed in the chamber, but in any case the government has never proven that these documents expose the deliberations of cabinet. In fact it has not told us anything about these documents at all really except we cannot have them. We have not received from the government a detailed description of each document and what claim it is making in relation to that document. We just simply get a letter from the Attorney-General that says, 'It's commercial in confidence, all the stuff you asked for. We're not to tell you what we've got, but we are going to tell you you can't have it'. Sometimes we get one with the lot. It is commercial in confidence, it is cabinet in confidence, it is statutory secrecy — it is the whole lot. It is pretty hard to respond to such an open-ended claim, if a response is what the government wants.

The government said there has been no constructive dialogue; in fact there has. I took the initiative to talk to the Attorney-General, who is the guy signing these letters to the Parliament, and I said, 'There's got to be some discussion here that we can have'. But in fact there has been no movement because those opposite want to demonstrate to us that taking this measure of suspending the responsible member in this chamber is not going to get us what we want. They have backed themselves into a corner. But I am willing at any time to sit down with the Attorney-General and talk about the contents of particular documents.

In relation to the coal documents, he was able to provide a bit more information to the house, without prejudice to his original argument, that says he does not have to give it to us, but he said he will give it to us, but he does not have to, but he will.

In that vein he should continue, I think. We have had nothing on the multibillion-dollar Cranbourne-Pakenham rail major project, except for a few documents that were passed around during public consultation — the flyer that went around the neighbourhood and the rest of it — but nothing in terms of the unsolicited proposal and why it was rejected.

We have not seen the key, most important part of the coal documents, which is the conditions under which the government could withdraw that grant. I certainly urge that the government should withdraw that grant. We have seen nothing on the West Gate distributor, despite the fact that the government just intends to sort of roll through on that one. It is all very convenient for government members to argue about this while they get on with approving, funding and constructing these projects, but these are still current matters that members — right from inner city Melbourne out through the western suburbs — want to know more about.

Just today we got a letter from the Attorney-General in relation to another request for a document — a report that the gambling regulator requested from Crown Casino in relation to the situation of problem gamblers at Crown Casino. All we got from the Attorney-General today was that he had not had time yet to consider our request, although this is not an expansive request. We have not asked for thousands of documents; we have asked for a specific document. The existence of that document is known, and yet again government members are playing the delaying game.

In relation to this matter earlier today I noticed one of the government's other speakers say that nothing like this suspension had ever happened in the history of Westminster and that he had looked. I have done a little bit of research of my own, because in fact I took the last government to the Supreme Court over its failure to provide a document to this house. In the process we certainly looked at other Westminster parliaments across the whole commonwealth universe. The member who made that statement is simply being deliberately obtuse. He should know exactly what happened in New South Wales. It was that the suspension of the Leader of the House precipitated in that case a court case that resolved the issue of the powers of the Legislative Council. The courts are only going to ever determine that a power exists, not the occasion or manner of its exercise, so it will always be the case that it is up to the wisdom of the members of the Legislative Council to decide what documents are required.

These public interest considerations that government members throw around are not for them to determine; they are for the house to determine. It is open to the government, as the previous government did, to write to this house saying, 'Yes, you do have the power to request this document, but we expect that you do not press your claim because the information that is contained in it is for some reason of potential risk to the public interest', and then the house itself will judge the balancing of that public interest versus the broader public interest — the public's need to know about these multibillion-dollar projects that are still very much live controversies in Victoria.

If the member wanted to look further than New South Wales, he could look at the Parliament of Canada, where in a controversy over some documents that related to the conduct of the Canadian military forces in Afghanistan and whether in fact they had handed over prisoners to other agents who then subjected them to torture, it was simply a matter that the Speaker of the house stood up and made a ruling that the house had the power to request those documents. That is the mechanism by which they resolved the controversy.

Going back to the beginning of what Ms Pulford said, this house's powers, privileges and immunities arise out of those of the House of Commons in 1855. I do not know if she has gone back and read some of the debates of the House of Commons in 1855 in making her claim that the house routinely simply rolled over when the Crown said no — she is mistaken about that — but there are mechanisms by which we can resolve that if we want.

Alternatively I would ask all members who have not read it to simply read the legal advice that was obtained by the house back in 2007 by Bret Walker, SC. His advice was quite definitive. He ought to know; he is the guy who ran the successful case on behalf of the New South Wales Parliament when it was challenged by the New South Wales government in that state's Supreme Court and eventually in the High Court. The constitutional principles are not particularly complex to understand. The mechanism for resolving them I think is the current one — the house has determined to suspend the leader until such time as he hands over the documents — but if the government would like to talk to us about how we could get some permanent ongoing legal clarity about that, I am sure we could have a talk about that too.

That is a rather short version of speeches I have given many, many times in this chamber over the last 10 years. This question has gone back and forth for many a year. I hope that we get a resolution of this issue this time, but the attitude from the government is almost one of denial. In fact what we have learnt so far this afternoon is that basically government members have gone on strike in relation to their own legislative agenda. The last thing we did in Parliament in the last sitting week was that the Leader of the Government stood up and passed a motion saying that the house at its rising would return at 2 o'clock today, so that is what we did. We all turned up here today because the government wanted us to be here. When we got here government members said, 'Stuff you. We're on strike. We're not going to debate our legislation' — so okay, it is their legislation — 'and just to really show you we're angry, we're going to send you home early as well'.

We are not exactly quaking in our boots over here. This government needs to get on with the business of governing. That is why its members were elected — if they want Parliament to sit, it is because they have a legislative agenda that they want to move forward — and the whole spectacle is a bit embarrassing for them, I would have thought. It has been embarrassing for a long time, because they have already been on strike in relation to providing meaningful information through this documents process. Then last week they went on strike in terms of answering questions at question time. Well, they just take them on notice now, which is a lot more efficient actually, because with the exception of Mr Herbert most ministers just stand up and read from a likely looking section from their briefing folder while they run down the clock, so we do not get any answers that way, but if ministers want to stand up and say, 'I'll take it on notice', all the better to move the process along even faster.

And who knows what other plans they have while they are here to basically down tools and say, 'Well, if you chuck out the Leader of the Government, we will just stop governing, and somehow that's going to show us all up'. Well, they are already struggling on the questions of transparency.

The issues relating to this set of documents — the ones that led to the suspension of Mr Jennings — are very serious issues. They are multibillion-dollar projects, and some of them relate to incredibly polluting coal projects or they go to the integrity of major events and what we are paying for those.

As I mentioned, we have now got a Crown Casino document in relation to problem gambling at Crown Casino that government members have failed to provide within the time requested — without, I think, reasonable excuse. They just seem to suggest they are too busy or whatever. The house is now going to have to determine what it does about that particular document. It was the Greens who first requested that document, and I think that is an important document that the house ought to consider before we find ourselves dealing with more legislation in this place about problem gambling or Crown Casino. We ought to understand exactly what the situation is down there in relation to gambling-related harm.

Perhaps the government will just settle down, return to some sort of normality and get on with the business that the people elected it to do, but nevertheless, transparency is going to become an ongoing thorn in its side if it cannot reach a compromise in relation to the class or content of these documents. As far as the rest of the commentary goes, the speech I just gave is the same speech that the Greens members have given in relation to all documents under the governments of Mr Bracks, Mr Brumby, Mr Baillieu, Dr Napthine and now Mr Andrews. We believe we have got a strong backing from the procedures of other Westminster parliaments around the world, and no-one would particularly expect us to change that view.



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