Getting hold of government documents – the saga continues
Associate Professor Greg Taylor
by Associate Professor Greg Taylor
On Monday the Supreme Court of Victoria handed down its decision in the first stage of the litigation in which Mr Greg Barber M.L.C. is seeking to have the Court declare the rights of access of Houses of Parliament to government documents.
The outcome was a qualified win for Mr Barber and the right of access to documents, but the end is not yet in sight. This in itself is bad news for the right of access to documents, as one of the chief weapons of governments is simple delay.
The litigation arose after Mr Barber moved a successful motion in the Legislative Council of Victoria on 31 August 2011 seeking to have a review of the Myki ticketing system by Deloitte provided to the House. The motion was not opposed by the government, and agreed to without a vote.
The government later reversed its position, and claimed that the documents in question were immune from being provided because they were prepared for a Cabinet committee. It is quite unclear why the government did this: the problems related to the Myki ticketing system – cost blow-outs and poor performance – were created by the previous A.L.P. government. Perhaps the explanation is simply that the government wished to avoid setting the precedent of having Cabinet documents revealed to the public in future cases.
Nevertheless, the government is legally wrong. The law on this point is quite clear: there are no restrictions on the sorts of documents that any House of Parliament can demand from the government. This is because Parliament is the supreme power in the land – not the government – and it must have the right to investigate and consider any ills in the state. As part of that, it needs access to information.
Unfortunately, however, there is no means of enforcing such orders other than the powers of the Houses to punish for contempt, and they have shrunk from actually imprisoning miscreants, even though they equally clearly have the power to do so. Sanctions imposed in similar cases have extended no further than symbolic suspensions of errant government ministers from the House for short periods.
It may be that both major parties are reluctant, in opposition, to set a precedent that can be used against them when next in government.
It is certainly true that the Houses’ right to have access to documents – like many rules in constitutional law – could be abused and detract from, rather than contribute to good government. Government cannot be carried on wholly in public, and governments do have some legitimate claim for secrecy. But there is a simple solution, which has been adopted in other jurisdictions such as New South Wales: governments’ claims should be submitted to an independent arbiter of high standing for assessment.
Unless there is such a process, the government is the sole judge of the extent to which information about itself should be published. This is clearly an untenable position. It is also illegal.
Given the impasse in Parliament in this matter – as on so many other similar matters – Mr Barber decided to seek a formal declaration of the legal position from the Supreme Court of Victoria.
The government responded by claiming that the Court should not interfere in parliamentary squabbles, but leave them to the politicians. It asked the Court to dismiss the claim summarily on the grounds that it could not possibly succeed. It was that claim which the Court rejected yesterday.
While refusing to agree to the government’s contention that the case could not possibly succeed, Justice Karin Emerton – a scholarly and thoughtful Judge with a doctorate from the Sorbonne – said that “Mr Barber’s prospects of success appear to me to be poor based on the limited argument presented to date”.
This will no doubt give the Barber forces pause for thought. Nevertheless, they should persevere.
This is for three reasons. First, as Justice Emerton points out, the argument in the case so far has been directed to showing that that the case is not hopeless. Various points that will have to be dealt with now that that stage is out of the way have barely been touched upon before the Court, if at all.
In particular, her Honour raised the question why the Legislative Council has not itself taken further action to have its request complied with. The answer to this (as her Honour no doubt knows) is that the government has a majority in the Council, and has changed its mind about releasing these documents. It cannot however be said that the Council has therefore abandoned its claim – as her Honour seems to think it might. It has not passed any motion cancelling its demand for the documents: its demand remains unsatisfied.
Secondly, her Honour said nothing to indicate that the House’s demand for the document was not legitimate. The only question she dealt with was what the Court should do about it.
Thirdly, while the law on this question is clear, governments around Australia have refused to abide by it, claiming various bogus exemptions in order to get out of their legal obligations to provide information to the elected representatives of the people. They have relied on Parliament’s lack of formal enforcement powers, other than the extreme sanction of imprisonment.
A formal statement by an independent Court that the excuses proffered by governments are illegal is desperately needed.
Dr Greg Taylor is an Associate Professor in the Faculty of Law at Monash University.