Production of Documents


Mr BARBER (Northern Metropolitan) — It seems that government members and their lead speaker are starting to get a bit bored and frustrated with this debate. Mr Mulino spent a long time making the case for why there needs to be a balance between secrecy and transparency, and I will go through that in a bit, but he constantly hedged around the question of who it is who makes the call about where this balance lies. Apparently he chose to come down on the side that government members, who are the only people who have seen these documents, are the ones to decide both their content and their nature and therefore where they fit against his purported tests.

He dug his tests out of the Freedom of Information Act 1982 and then at various times referred to them as longstanding conventions and as principles. He went back and forth suggesting that there was some magical quality to this checklist of his, but he never quite pinned down for us where it is that the items on his list come from. He said there is a reference to them in the Freedom of Information Act, but he is quite clear that the FOI act does not apply to the Parliament.

He said to the chamber that there are statutory secrecy provisions that could be brought to bear. Is it quite the case that when this Parliament agrees to a statutory secrecy provision in an act that secrecy also then applies to the Parliament? If that is the case, then every single time we pass a statutory secrecy provision in this place we will want to know from the government whether that particular provision does or does not actually override the constitution.

Mr Mulino said it is all about the constitution; he said that is where the separation of powers is to be found, but then he spent most of his time talking about cabinet deliberations.

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Mr BARBER — If Mr Mulino could give me his attention for a moment and worry less about his jovial pal, could he tell me where it is in the Constitution Act 1975 that I can find reference to the cabinet?

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Mr BARBER — No, I am saying that Mr Mulino, the lead speaker for the government, said that the separation of powers was to be found in the constitution, and he then said that cabinet in confidence was part of that. What I am saying is: show me where the constitution refers to the cabinet. The section he is really looking for is section 19 — the section that says that the powers, privileges and immunities of this house are those as of the House of Commons of 1855. As I have said many times — talk about bored and frustrated; how many times have I had to stand up in this place and say it? — there is no Westminster Parliament on earth that has ceded its powers in relation to any of these matters that Mr Mulino brought up. He called forth these spirits from the vasty deep and said that these were all the things that the government had on the checklist for deciding whether these documents could be released.

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Mr BARBER — That is the real question, is it not? If there is a balance to be struck, who decides? Who makes that decision? Mr Mulino's proposition is that they, as members of the government and as the only people who have even seen these documents, will decide what documents are to be released based on a set of tests he has laid out, tests which actually do not come from anywhere. He just dragged them out of the Freedom of Information Act 1982 and started referring to them as longstanding conventions.

There needs to be a balance between the three arms of government — the executive, the Parliament and the judiciary. There is no doubt that if Mr Mulino and his government continue this type of attitude — as well as him having to have many other debates like this one, which he is already finding quite frustrating — this matter will head to the courts. It is not that the courts will come and have a look inside the chamber and sort out that dispute — —

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Mr BARBER — It will be a dispute between the two legal persons on either side of that separation of powers that Ms Shing learnt about in first year — that is, the legal person, the executive, and the legal entity, the Parliament. You can find reference to those in the constitution if you would like to go and look.

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Mr BARBER — Ms Shing is new here. That is all right, but when you get a new toy, a new device or a new computer, the first thing you do is crack open the instructions and read them.

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Mr BARBER — When all else fails, read the instructions. In this case, it is the Constitution Act 1975. You would have expected liberal reference to have been made to it in the case that was put forward by the government, but we did not hear any. In amongst that, Mr Mulino made a couple of points that I think could be examined. Mr Mulino made the point that cabinet needs to be able to deliberate. In effect, if the cabinet room were wired up like the Big Brother house and we could all watch, then, yes, it would destroy the ability of the cabinet to deliberate in a way that was confidential. But it is a far cry from that to suggest that any piece of paper that is put on a trolley and wheeled through the cabinet room is somehow covered by cabinet in confidence, which I agree is an important aspect of our Parliament.

Mr Mulino is now conceding that it is a grey area, so I had a look at something that is completely pertinent to this matter: the Auditor-General's report entitled Operational Effectiveness of the myki Ticketing System, which was tabled today. Members who have read it will see — and I am paraphrasing but hopefully not verballing the Auditor-General — that he says that myki had a business case but that business case was later altered to reflect some changes and that because that document went to cabinet it is not available to Public Transport Victoria in the life of this government. Since the whole purpose of a business case is to deliver some benefits and the agencies are then meant to deliver those benefits, how can they possibly do that if they are not allowed to read a business case that happened to belong to the previous government?

The Auditor-General's role in this is to ensure that we deliver benefits from business cases, including those outsourced public-private partnership commercial arrangements that Mr Mulino wanted to champion. The Auditor-General notes — somewhat wryly, I think — that this government has chosen to release the business case for the east–west link, but when you extend that principle through all the other arrangements we have in place, you would want to see all those business cases made public so that the actual delivery of the originally promised benefits could be subject to scrutiny by members of the public — let us not leave them out of this — the Parliament and even the Auditor-General himself, who is an independent officer of Parliament.

The Auditor-General has powers under his act to scrutinise cabinet documents and to release them in the public interest if he sees fit, and that is because he works for the Parliament. He must have got that power to scrutinise cabinet-in-confidence documents — this is very distressing for some of the ministers present at the table — from Parliament, and if he has it, why can we not have it? If the Auditor-General has been granted this power by the Parliament, how can it now be argued that the Parliament does not have the power to scrutinise cabinet documents?

I have already referred to statutory secrecy. An interesting point is that if the executive, which I am not calling the cabinet, was unable to confer with its legal advisers in the confidential way that anyone does when they end up in court — and the government is in court all the time for all sorts of reasons — it would be unable to represent itself in court and therefore it would be unable to function as an executive.

Depending upon which particular scholar you talk to, some will say that the Parliament's power is completely unfettered or that there could be a limited set of cases where, for the reasonable necessity of the operation of one part of our constitutional system, cabinet documents could be made available. The courts in the past have obtained cabinet documents in the case of the Northern Territory land councils. It seems the courts can obtain them, and it seems the Auditor-General can obtain them. Maybe one government gets to obtain them from a previous government and releases them when it suits it politically, but the Parliament has been left out of this entire process somewhere along the line, according to Mr Mulino's construction. If he is right, we are all in a hell of a lot of trouble. The Auditor-General quite clearly points out another absurdity if it were to be that any piece of paper that has gone to the cabinet is not available.

We have a number of quite important documents here. We have the documents associated with the rejected proposal for the Cranbourne-Pakenham rail upgrade. I heard the words 'intellectual property' come out of Mr Mulino's mouth earlier on. He said it is necessary to harness the private sector's intellectual property. In relation to the Cranbourne-Pakenham rail upgrade, when the government determined that the project was not going to go ahead, we purchased the intellectual property, and it cost some millions of dollars.

My question to the government and Mr Mulino would be: now that we have paid money for that intellectual property, are we allowed to see it? Generally when I make a major purchase I like to know what it is that I have at the end of the transaction. Does the government concede that now the state of Victoria has purchased that piece of intellectual property from the private sector — and I have no conception of what this intellectual property might be — it is available to the Parliament? Otherwise the government is now spending public money with no capacity to ever be scrutinised on it.

Then there is Mr Mulino's nebulous public interest test, which he talks about being in the Freedom of Information Act 1982. It appears in a couple of places in the act and he might like to consider it. As I have said, the FOI act is not relevant and is not brought to bear here. But by his analogy there is an overriding public interest test in the FOI act. Notwithstanding any of these other tests that may have been laid out in that piece of the statute, he says there is still a public interest override that can be brought to bear. I argue that that is the most important principle here. But the thing that Mr Mulino cannot quite get a handle on is who decides the public interest. Is it for his government to simply state what it is and then this Parliament has to wear that, or does the Parliament have to first debate the matter? While we may not concede our powers in the way that Mr Mulino argues, it does not mean that the Parliament cannot make its own decision as to what is in the public interest for it to release.

I refer to a matter debated in the Canadian Parliament relating to the conduct of the Canadian military in Afghanistan. Of course the government claimed that all these things were related to national security. But at the end of the day the Canadian Parliament — in fact the Speaker of the Canadian Parliament — made a ruling that the Parliament had unfettered powers to seek these documents and that it would be for the Parliament itself to decide what material should be made public. If there is some magic process in play that only works in the Canadian Parliament, and apparently it works in every other Westminster system in the world but the Victorian Parliament, then I would be very keen to be educated on that.

The Greens will therefore support this motion, not just because the matters contained in it — that is, the proposed sale of the port of Melbourne, the proposed construction of the West Gate distributor, the ongoing controversy around the Australian Formula One Grand Prix and the now abandoned former proposal for the Cranbourne-Pakenham rail corridor — are important projects and important matters for scrutiny in and of their own right, but additionally because it is our fundamental job to hold the executive to account, and this is an executive that clearly does not want to be held to account. Therefore we must maintain this position, because the government is offering us no middle way.