How The Great Oz
Government Cover-Up
Was Blown By The Courts
By Tony Harris

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. _____
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.
He might have thought that the Legislative Council, the weakest house of parliament in Australia, would accept the Government's decision.
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.
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.
The Government is responsible (that is accountable) to Parliament - and it must provide information required by Parliament so that it can be held accountable.
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.
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.
The Senate committee huffed and puffed but did not test its powers to require the information from the Government.
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.
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.
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.
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.
Another set of papers related to the Government's decision not to allow gold mining at Lake Cowal.
Some suspected the decision was eccentric and only nominally based on environmental factors, as was publicly advanced.
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.
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.
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.
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.
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.
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".
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.
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."
The Appeal Court ruled that the Upper House could demand State papers.
The Carr Government, unimpressed with arguments about democracy, appealed to the High Court.
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.
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".
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".
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.
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".
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.
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.
But neither the Upper House nor the Government knew the extent of this inherent power of the Legislative Council to demand government papers.
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.
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.
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.
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.
The State Government argued that documents enjoying legal professional privilege did not have to be provided to the Upper House.
But the court disagreed. The protection afforded legal documents depended on the relationship between those who had the documents and those who wanted them.
In the case of Parliament, its role to oversee government could be frustrated for no persuasive reason if such papers were withheld.
The justices of the Appeal Court did not agree, however, on whether the Legislative Council could demand access to Cabinet documents.
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.
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.
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.
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.
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.
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.
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".
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.
Neal Blewett argued that "severe restrictions on knowledge are contrary to the national interest".
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.
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.
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.
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.
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?
But neither the Government nor the Upper House appealed.
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.
That right meant Parliament could demand any document it wished except, arguably, those that reveal "the actual deliberations of Cabinet".
At least Parliament has a right to know in our system of responsible democracy.
The ideas here were first developed for the November, 1999 edition of Agenda, a publication of the University of Canberra.
Tomorrow: Part Two of 'The Secret State'


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