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- Australian citizens have no right to government information
and Australian governments are only too happy to keep it that way. In a
special series beginning today, Tony Harris reveals just how much is being
hidden. _____
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- Michael Egan, NSW Treasurer, made an important contribution
to public life when he refused to provide State documents to the Upper
House of the NSW Parliament.
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- He might have thought that the Legislative Council, the
weakest house of parliament in Australia, would accept the Government's
decision.
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- Instead, the refusal to provide documents to the council
led to three court actions in which the NSW Government - with the Commonwealth,
Victorian, West Australian and South Australian Governments intervening
- argued against the Parliament's right to know.
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- The three judgements affirmed the NSW Legislative Council's
right to know. They confirmed the historical relationship between government
and parliament in our system of responsible democracy.
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- The Government is responsible (that is accountable) to
Parliament - and it must provide information required by Parliament so
that it can be held accountable.
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- The Carr Government was not the first to reject an Upper
House demand for information. A Senate committee request to see the Federal
Treasury's advice on foreign investment proposals involving the takeover
of the John Fairfax company, publisher of The Australian Financial Review,
was rejected by the Keating Government in 1994.
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- The then Commonwealth treasurer, Ralph Willis, ordered
public officers not to disclose to the Senate committee any information
about the advice they provided to the Government.
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- The Senate committee huffed and puffed but did not test
its powers to require the information from the Government.
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- And the Carr Government is not the last to decline to
table papers. The Chief Minister of the ACT, Kate Carnell, declined for
some time, but agreed last month, to table contracts for the use of its
Bruce Stadium.
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- But the Carr Government was especially bold in its claim
that the Government did not have to provide any documents to the Upper
House. The refusal showed the Government had no clear understanding of
the Government's need to be accountable to Parliament in Australia's system
of parliamentary democracy.
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- If the requested documents were sensitive, it was only
because of the political embarrassment the Government would face should
they become public. One lot of requested documents concerned the Government's
claim that it saved money in the restructuring of its education portfolio.
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- Some members of the Upper House suspected that the claims
were poorly calculated. The Government saw no need to expose its arithmetic
to parliamentary scrutiny.
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- Another set of papers related to the Government's decision
not to allow gold mining at Lake Cowal.
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- Some suspected the decision was eccentric and only nominally
based on environmental factors, as was publicly advanced.
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- The Upper House wished to see the consultancy report
that recommended the level of rent to be charged for Fox Studios' use of
the former Sydney Showground site.
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- The Government did not claim these documents were immune
from presentation because their release could harm the State; it did not
claim that they were protected because they were legal documents; it did
not claim immunity because they were Cabinet documents, although some were.
It merely said that the Upper House had no right to demand any government
document.
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- The former premier of Victoria, Jeff Kennett, could safely
refuse to table in Parliament State documents concerning the Crown casino
or ambulance dispatch tender processes because his government controlled
both Houses.
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- Kennett was not going to lose any parliamentary vote
on the issue, he controlled Parliament, and he did not comprehend that
he would lose electoral votes.
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- But the NSW Upper House has not been under Government
control for many years. It was able to test the Government's resolve and
its own powers by asking the courts to decide whether it had the power
to demand these documents.
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- Bret Walker SC, who appeared for the Legislative Council
in the three hearings, with success, said the matters heard by the Appeal
and High Courts involved the powerful mix of "history, politics and
the law where the courts would not be bound by authority, but would be
the authority".
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- The case was first considered before three justices of
the NSW Appeals Court. The court accepted that, in the absence of legislation,
the Upper House had such implied powers as it needed to do its job. It
then agreed that the Upper House had two important roles: to make laws
and to oversee the work of the executive government.
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- In a judgement significant for its affirmation of democracy,
Chief Justice Gleeson said the capacity of the Upper House "to scrutinise
the workings of executive government, by asking questions and demanding
the production of State papers, is an important aspect of modern parliamentary
democracy. It provides an essential safeguard against abuse of executive
power."
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- The Appeal Court ruled that the Upper House could demand
State papers.
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- The Carr Government, unimpressed with arguments about
democracy, appealed to the High Court.
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- The leading judgement of three of the six High Court
justices who considered the case added to Gleeson's contemporary view of
the term "responsible government". While the NSW Government under
Premier Bob Carr often sees the Upper House as a hindrance and a fetter
to government programs, these justices quoted the view that the Government's
primary responsibility is owed to the Parliament.
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- They quoted John Stuart Mill's fundamental 1861 paper,
Considerations on Representative Government, which said one of the legislature's
functions is "to watch and control the government: to throw the light
of publicity on its acts".
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- In his separate but supportive judgement, Justice McHugh
said "one of the most important functions of a House in a legislature
under the Westminster system ... is ... to obtain information as to the
state of affairs in their jurisdiction so that they can, where necessary,
criticise the ways in which public affairs are being administered and public
money is being spent".
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- To a government that thought it should control and manipulate
the legislature until it lost an election, the idea that democracy depended
on a watching, criticising Parliament must have been difficult to accept.
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- But the High Court's view reflected its earlier judgements
on the role of Parliament. In 1920, the High Court said one of the duties
of a member of parliament was "that of watching on behalf of the general
community the conduct of the Executive, of criticising it, and, if necessary,
of calling it to account in the constitutional way by censure".
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- According to the High Court, the Upper House of the NSW
Parliament had the undoubted power to demand State papers. This was a judgement
supported by each of the six justices.
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- To those concerned at the damage caused in the past to
Australia's democratic institutions by political parties, this commonsense
view of the role and place of Parliament was a relief.
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- But neither the Upper House nor the Government knew the
extent of this inherent power of the Legislative Council to demand government
papers.
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- In October 1998, the council demanded documents about
Sydney's contaminated water supply. The Government decided some documents
would not be tabled because they enjoyed immunity against Parliament's
demands. The argument returned to the courts.
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- This hearing before the NSW Appeals Court is said to
be the first time, in Australia or the United Kingdom, that a court has
been asked to consider whether there is any limitation on the power of
a house of parliament to demand papers from its government.
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- The Government argued it was not obliged to provide documents
when their release could harm the State. These documents included papers
that could be used in civil actions against the State if their contents
were known.
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- The court found against the Government; the Government
had to provide even this category of document. It was a matter for the
Legislative Council to protect such papers from public view, if it thought
that was desirable.
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- The State Government argued that documents enjoying legal
professional privilege did not have to be provided to the Upper House.
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- But the court disagreed. The protection afforded legal
documents depended on the relationship between those who had the documents
and those who wanted them.
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- In the case of Parliament, its role to oversee government
could be frustrated for no persuasive reason if such papers were withheld.
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- The justices of the Appeal Court did not agree, however,
on whether the Legislative Council could demand access to Cabinet documents.
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- Walker thought that the NSW Appeals Court, although influenced
by practice and convention, wished to leave room in its judgement for further
development. In some matters, Walker said, it was better that the law not
be so definitive as to circumscribe room for change.
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- Justice Meagher said that Cabinet documents were completely
protected because the Legislative Council could not compel their production
without subverting the doctrine of responsible government. This view reflects
the concept of Cabinet solidarity or collective responsibility which allows
a minister to propose a policy in the knowledge that if it succeeds fellow
Cabinet ministers will defend that policy.
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- Meagher's views appear to be unique. They run counter
to legislation that gives a theoretical right to ordinary Australians to
access some Cabinet documents.
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- Moreover, Meagher would presumably not preclude the courts
from requiring access to Cabinet documents and discussions, as occurred
in the perjury case involving the former WA Premier, Carmen Lawrence, notwithstanding
his view of the implication for responsible government.
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- Meagher gave complete protection against the disclosure
of Cabinet documents. He thought that "in the realm of Cabinet documents
there is no room for holding that time will whither them". This also
appears inconsistent with the customary release in Australia of most Cabinet
documents that are 30 years old.
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- In this arena, the views of the Lord Chief Justice of
England, Lord Widgery, as quoted in Neal Blewett's A Cabinet Diary, appear
more accommodating to the needs of modern democracy.
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- In considering whether The Diaries of a Cabinet Minister,
written by R.H.S. Crossman, a former UK Cabinet minister, infringed secrecy
laws, Widgery concluded that: "There must however be a time limit
after which the confidential character of the [Cabinet] information will
lapse." He calculated this to be 10 years and three elections, after
which he did not believe "publication would in any way inhibit free
and open discussion in Cabinet".
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- Had the Lord Chief Justice been considering Parliament's
rights to know instead of the public's rights, we could expect him to be
more generous again.
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- Neal Blewett argued that "severe restrictions on
knowledge are contrary to the national interest".
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- In NSW, Justice Priestley's conclusions were at odds
with those of Meagher. The Upper House could demand access to all Cabinet
documents. In his view, it would be invidious if the courts could require
access, as a particular court case might warrant, while precluding Parliament
from having access in order to acquit its important functions.
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- Chief Justice Spigelman followed a view closer to that
proposed by Meagher. Parliament had a power to demand access to Cabinet
papers - but not to documents where access would be inconsistent with the
doctrine of collective ministerial responsibility.
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- Spigelman's and Meagher's decisions are inherently unstable.
They incite the Executive to manipulate the production of Cabinet documents
in an attempt to limit the number of documents liable for production to
the Upper House.
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- They lead to the prospect that the courts will be enmeshed
in arguments about what Cabinet documents are open to the Upper House and
what are not. The courts will thus be called to adjudicate on what is essentially
a matter for political judgement.
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- The judgement seems not to accommodate the circumstance
of a minority government being required to table Cabinet documents in the
Lower House. Would the courts say a Lower House of parliament could not
vote down a minority government just because it declined a demand to table
such papers?
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- But neither the Government nor the Upper House appealed.
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- After three court hearings and judgements from 12 justices,
there was unanimous judicial agreement that, under Australia's system of
responsible government, the Upper House had a right to know about the activities
of the executive government.
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- That right meant Parliament could demand any document
it wished except, arguably, those that reveal "the actual deliberations
of Cabinet".
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- At least Parliament has a right to know in our system
of responsible democracy.
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- The ideas here were first developed for the November,
1999 edition of Agenda, a publication of the University of Canberra.
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- Tomorrow: Part Two of 'The Secret State'
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