NSW parliament is finally challenging the culture of secrecy in government
There’s a battle going in the NSW parliament about government secrecy. It’s coming to a head this week with a minister facing the real prospect of being ejected from the upper house because his government has refused to produce three crucial documents to the house, despite being ordered to. So, what’s it all about?
For the last three decades power has shifted in the Australian political system from parliaments to the ministers and unelected bureaucrats who form the executive government. Most parliaments, state and federal, operate as little more than a rubber stamp to the decisions of the executive. So much so that most people see no real distinction between the government and parliament.
However, our entire system of responsible government is founded on the idea that parliaments are separate sources of power and authority to the government of the day. It’s the job of parliaments to hold governments to account, to demand transparency, to question government decisions and if necessary, to remove ministers from office.
Accountability starts with getting access to information. Since the mid-1990s the NSW upper house has been quietly developing a new set of constitutional norms that have confirmed it has the power to demand information and documents from the executive. This is often referred to as the “call for papers” power.
In the mid- to late-1990s the upper house’s “call for papers” power was challenged by the Carr Labor government. In two separate cases, Egan v Willis (1996) and Egan v Chadwick (1999), the courts held that the upper house had the power to compel the government of the day to produce documents to it.
What wasn’t decided in the Willis and Chadwick cases was the extent to which the upper house could demand documents that were protected by a claim of “cabinet in confidence”. Time after time journalists and members of the community have been prevented from getting access to crucial government documents because the government of the day has declared they are “cabinet in confidence”.
Traditionally a document was
only “cabinet in confidence” if it would reveal the actual deliberations of a cabinet meeting. This was a narrow set of documents that included the minutes of a cabinet meeting and specific briefings created for a cabinet meeting. The rationale for protecting these documents from public scrutiny is that it allows ministers sitting around a cabinet table to have a frank discussion and assessment of the issues presented without having to fear their robust exchange will end up on the 6pm news or the front page of a newspaper.
But over time, the range of documents that governments declare “cabinet in confidence” has grown and grown and grown. They are now routinely claiming that any document, created at any level of government that may at some point inform a cabinet deliberation, is cabinet in confidence and they don’t have to produce to the upper house or answer to any freedom of information request. This has seen a shroud of secrecy settle over many actions of the government.
Right now, the upper house is in dispute with the executive because the government has refused to produce three crucial documents in answer to three separate calls for papers. The government has declared that each is “cabinet in confidence” and not subject to the house’s call for papers powers. The documents in question are a 2016 independent review of child protection services called the “Tune report,” the business case for moving the Powerhouse museum to Parramatta and the business case for the knock down and redevelopment of the Sydney Football and Olympic stadiums.
On Tuesday the NSW upper house censured the leader of the government for failing to comply with these orders. If the minister does not produce the documents on Wednesday, he faces the very real prospect of being removed from parliament. If that happens it is highly likely the matter will once again end up in the courts.
The long-suffering public should welcome this independent streak in the NSW parliament. Finally a parliament is striking back at executive overreach. Parliament is challenging the culture of secrecy that prevents real scrutiny of how government works and how billions of dollars of taxpayer funds are spent. We can only hope that other parliaments also grow a backbone and do their job by holding governments around the country to account.
• David Shoebridge is a New South Wales Greens MP and the party’s spokesperson for justice