Legislative Council, Tuesday 22 August 2023

Ms FORREST (Murchison) - Mr President, I move -

(1) That the Legislative Council Select Committee Report on Production of Documents (No. 5 of 2021) be referred to the Legislative Council Standing Orders Committee.

(2) That the Standing Orders Committee give consideration to an appropriate dispute resolution process that -

(a) is based on the principles of responsible government and underpinned by the power to call for documents;

(b) allows for the assessment of the validity of claims of immunity by the government in response to Orders for the Production of Documents; and

(c) includes the use of a suitably qualified independent adviser on claims of public interest immunity.

I seek members' support for this motion to refer the Production of Documents Committee report to the Standing Orders Committee to effectively give effect to recommendation (3) of the committee, which is captured in a motion.

Just to restate it, recommendation (3) of the Production of Documents Committee report states:

That this report be referred to the Legislative Council Standing Orders Committee to consider an appropriate additional dispute resolution process based on the principles of responsible government and underpinned by the power to call for documents, and consider the use of a suitably qualified independent adviser on claims of public interest immunity.
I am pleased to note that many more members of parliament, departmental officers and media representatives currently have a much greater awareness and appreciation of this important report than they did in 2021 when we tabled it.

I think we all understand perhaps what has assisted in raising that awareness and appreciate the need for a formal process to respond to incidents of failure to comply with a request for documents in either House or a parliamentary committee.

On a positive note, I do note that there has been a greater willingness to produce documents in more recent times, which is positive and encouraging. However, this may not last and a formal mechanism is still required where there are matters of contention or dispute. This is one of the reasons why I delayed the formal proposing of this referral to the Standing Orders Committee, because at the time - I will come to this in more detail - there was pushback from the Government to even contemplate that. When they had the numbers in the other House, it did not seem so important, so they perhaps tried to override matters such as that.

Issues relating to transparency and accountability for significant public fund expenditure does help to focus the attention of all of us. In preparing for this debate, I did return to my comments from when we noted this reported. I noted that I opened my comments with:
[TBC]
In speaking to this motion of noting this report, I know the work of this Committee was done some time ago but the information is still current and relevant. That is still the case now. The information is still current and relevant, even though the work of the Committee was done prior to COVID 19, which interrupted some of the processes around this. The subsequent tabling was affected by COVID-19 as well.

The report was completed in March 2021, and it was noted in July 2021. Here we are, now, in August 2023 and I am seeking the support of members to refer this report to the Standing Orders Committee, as recommended.

Why have I waited this long? Because as I said, at the time the report was noted in this place, the Government claimed very loudly that there was no need for such a process. I note that there has not actually been a formal response to the inquiry or to the committee's report, but there was a response from the Leader during the debate of the noting. I will refer to some of the comments that the Leader made, in terms of the reason as to why I am proceeding now.

The Leader said at the time, in the noting of the report: [TBC]

The Government is not supportive of any change to the existing framework for considering the production of documents and papers and records between the Government and the Legislative Council and its committees, including joint committees, where members of the Legislative Council have membership. The Government considers that the existing mechanisms for the production of documents appropriately balances the need for parliamentary scrutiny and transparency against ongoing public concerns. It is submitted that there are adequate mechanisms in place to order production of documents and, moreover, to hold the executive to account.

The Leader went on to say:
The Government does not support measures to alter these long-established and satisfactory principles, conventions and processes. Furthermore, the Government will not support changes that may undermine parliamentary privilege and the role and functions of the executive, and the important principle of the comity of the two Houses of parliament. The Government acknowledges the Legislative Council's functions and the inherent value of an objective and balanced assessment of government performance. [TBC]

I wanted to read that whole bit because I did not want to take anything out of context. It is a slightly longer quote from the Leader and her contribution.

I want to refer to a couple of these matters and reflect on what has occurred since. I note the Production of Documents Committee report does not recommend any changes that may undermine parliamentary privilege.

Ms Webb - That is right.

Ms FORREST - It does not.

Ms Webb - Not one.

Ms FORREST - No. Even to suggest that could be the case, when the Leader's comments were made on the noting of the report, is poorly advised, I would say. It also does not seek to undermine the role and functions of the executive and the important principle of the comity of the two Houses of parliament. This report does not do any of that and the recommendations do not suggest any of that.

This is why it is entirely appropriate that our House considers how best to achieve and maintain responsible government, accountability, timeliness and transparency of policy and public expenditure decisions. It is also entirely appropriate they recognise the Tasmanian Houses of parliament and committees established by them do have an inherent and unequivocal power to order members and witnesses to produce documents. The authority to treat refusal to produce documents is a contempt of the House. That should never be in question.

As noted in the Production of Documents Committee report, this reflects the fundamental principle of parliamentary democracy; that is, that the people elect representatives - members of parliament - to advocate and inquire on their behalf without impediment. This is especially important in the upper House, which has a key role as House of review.

We have seen over recent months that circumstances have changed somewhat more in the other place. This has put some more pressure on the Government to release documents; however, it should not take the defection of members from their own party to achieve this. It is indeed timely as it has shown just how inadequate the current arrangements are and the need for a considered solution that can be further considered from this House's perspective. The referral itself does not determine the outcome, which will be determined by the Standing Orders Committee.

To return to the previous debate briefly, again, the Leader on behalf of the Government informed the House that while the Tasmanian Government is not supportive of any changes to the existing framework concerning the production of documents, it is, nevertheless, committed to increasing accountability across all departments as evidenced by our ongoing reforms to improve transparency and expand routine disclosure of information.

The Leader went on to note a range of so-called accountability and transparency measures. I want to comment on a couple of these because they are relevant. Included in the list of actions that the Government was taking were:

(d) Supporting policies to publish right to information decisions.

(e) Delegating ministerial responsibilities under the Right to Information Act 2009 to Departmental offices.

f) Tabling the Right to Information Amendment Bill 2019 to ensure that the Ombudsman can review a decision of the minister or a minister's delegate in relation to information in the possession of the minister.

I note, as I have many times, that right to information processes have no bearing on the information that should be provided to parliament and parliamentary committees. It is frustrating we still have to have these discussions and remind senior bureaucrats and other members of parliament sometimes, who suggest that the same test should be applied to parliament and parliamentary committees as to public interest and confidentiality that applies to members of the public and media.

The Government maintains the right to request documents are received in confidence. Where you put that RTI issue aside, because it is irrelevant and should not be brought up in these discussions at all, we put that to one side. The Government still has the right to request documents are received in confidence while it can claim Cabinet-in-confidence, which should be limited to a very narrow range of Cabinet documents. When considering the production of documents to the parliament or a parliamentary committee, the same test should not be applied as to what would be released publicly.

None of the other measures the Leader listed in her comments in her response to her noting of the Production of Documents Committee report relate in any way to the disclosure of information, documents or papers to parliament or parliamentary committees. I have stated previously in this place, in the debate noting the report, the Tasmanian Houses of parliament and the committees established by them do have that inherent and unequivocal power to order members or witnesses to produce documents, and the authority to treat refusal to produce them as contempt of the House. That is a serious step to take. It was the contention of the committee, as outlined in the report, that a step that could prevent that and basically provide some advice as to whether a document should or should not attract such immunity would help prevent that from occurring.

It is still a mechanism that can be used. There are still other measures outlined in the report, while not really the matter for the Standing Orders Committee to look at, they are matters for the House of punitive and coercive measures that can be used to encourage the government to comply with an order.

The power of the House and parliamentary committees is a fundamental truth. To suggest the RTI or any other process should be laid over the top of that is fundamentally wrong. I remain concerned the Government and departmental offices continue to refer to and will often rely on the Right to Information Act as applying to committees or to the parliament itself.

Mr Willie - I have not heard them say it for a while since we have outlined why it is not applicable.

Ms FORREST - We still get it in correspondence from time to time.

As I mentioned, the committee noted during the inquiry and in the report that appropriate and reasonable claims for immunity regarding the production of documents may arise in limited circumstances. That is not in dispute either; there can be legitimate claims, but the way it is used is much broader than that.

The failure to produce documents has in recent history, and some years ago, led to the establishment of a committee that produced the report I am seeking Tasmanian members' support to refer to the Standing Orders Committee. It is perhaps only in the last 6 to 12 months that it has been dusted off the shelf and many members, staff and senior departmental officers are now much more aware of the content of that report.

I knew this would happen eventually. It had to be a matter of time to let it sit and wait until now; here we are, with perhaps an opportunity being highlighted through other circumstances in the other place, where a procedural or proper process should be established to help break a deadlock, where there is butting of heads and no-one wanting to give.

As we have seen in the past and more recently, with genuine concerns regarding two major projects the state is pursuing - the proposed stadium at Macquarie Point and Marinus Link - the lack of provision of relevant information has been negatively impacting not just the work of the Legislative Council in our key scrutiny oversight roles, but also in the other House with lots of demands being made, meaning lots of other work probably does not get done while they dispute those matters.

Most of us would be well aware of the circumstances in the past where resolutions have been reached in order to ensure members of this House can meet all of our obligations in terms of scrutiny and decision making. The need for a dispute resolution process formally established and understood by all is important.

Much of the work considering various models has been done by the Production of Documents Committee, and thus does not need to be repeated. That has not changed. The information is all there. Therefore, the Standing Orders Committee is the appropriate committee to further this work and fully consider recommendation 3. This is to consider an appropriate additional dispute resolution process based on the principles of responsible government, underpinned by the power to call for documents and to consider the use of a suitably qualified independent adviser on claims of public interest immunity. Members who have looked at the report will see a range of attachments to the report outlining the various jurisdictions around Australia where there are mechanisms in place.

To quote briefly from the report and reiterate some of the key matters I have raised, according to the Australian Senate Guide to Senate Procedure No. 12, Orders for the production of documents: [TBC]
The power to require the production of information is one of the most significant powers available to a legislature to enable it to carry out its functions of scrutinising legislation and the performance of the executive arm of government.

The Tasmanian House of Parliament and committees established by them have an inherent and unequivocal power to order members and witnesses to produce documents and the authority to treat refusal to produce these documents as a contempt of the House. This reflects the fundamental principle of parliamentary democracy, that is, the people elect representatives and members of parliament to advocate and enquire on their behalf without impediment.

Further, the report first describes the history of the Tasmanian Parliament: (tbc)

The principle of responsible government, existing powers of the parliament and parliamentary privilege prior to examining the dispute resolution processes in other Australian jurisdictions.

After full consideration of the matters raised during the inquiry, the committee has made six recommendations. These recommendations relate to the implementation of additional dispute resolution processes and the use of political remedies to respond to the failure of the Government to produce documents.

The Committee recommends an additional dispute resolute process be considered by the Standing Orders Committee based on the principles of responsible government underpinned by the inherent and unequivocal power to call for documents, including the use of a suitably qualified independent adviser on claims of public interest immunity.

That is the focus of the motion. Whilst I have referred to the report slightly more broadly in the previous debate, it is important to bring us back to what led initially to the committee's establishment, the report and then to this motion.

The report further states: [TBC]

The committee noted the importance of the State Service employees, Government, and all members of parliament having a full understanding of the role of the Tasmanian Parliament, under the Westminster system of responsible and representative government. Based on the evidence, the committee recommends Government and State Service employees, Government business enterprises, and state-owned company employees and members of parliament receive education and training in this area.

That is not something that the Standing Orders Committee will consider; but, should a new mechanism be proposed and supported by this place at a later time, then I believe that would be an important part to be followed up. Even without that, there is still a need for that education. It has been pleasing to note that many more members have recently taken the time to read this report. Some of us who have already read it may have revisited some of the matters raised.

The report also provided extensive detail about grounds for immunity related to the producing of documents, including the public interest immunity and the courts, public interest immunity and the parliament, Cabinet documents and what constitutes a Cabinet document, internal Government deliberations, and legal professional privilege.

It is important that the whole report be referred to the Standing Orders Committee so that all that evidence and information is there to assist the Standing Orders Committee in its deliberations, should this motion be supported.

The report also details the various dispute resolution processes in other parliaments. Some have been well utilised and others not, or have not been tested at all; or they had not been tested at that time.

To reiterate, members are most likely aware that the mechanisms utilised in New South Wales were of particular interest and have been well utilised. This process is that the independent arbitration process has been in place for well over 20 years now, whereby all members of the New South Wales Legislative Council - regardless of their party - can access, with some restrictions, all the documents, including those over which immunity has been claimed. These are the ones where confidentiality immunity has been claimed. They can still view those documents in the custody of the Clerk.

It is important to note that during this long period, well over 20 years, no privileged information has been leaked or released. That means for over 20 years, where documents have been sought, including those the New South Wales Government has been seeking privilege over, regardless of the level or basis of privilege, those documents have been provided to the Clerk of the Legislative Council in New South Wales. All members of the Legislative Council can view these documents. There are strict procedures around the processes. As I noted in the previous debate, the fact is that this process has worked - bearing in mind it is predominately non government members who would view the documents and there has not been one leak in that time.

Ms Webb - They are not prevented from discussing them amongst themselves either, if they have viewed them.

Ms FORREST - That is right; only with other members, no-one else outside - but they can talk amongst themselves.

Ms Webb - Amongst themselves, they can.

Ms FORREST - Yes, that is right. Under this process, the government also provides documents where no privilege has been claimed. However, where there is a document or documents where privilege is claimed, a member can contest that claim. When there is a contest to that claim, on a document where privilege is claimed by the government but the member believes it is an inappropriate claim for immunity or privilege, the Clerk then can engage the Independent Arbiter to consider whether the claim should be upheld.

To reiterate, over the 20 years when members of parliament have been viewing confidential documents, there has never been a leak. Of course, all members respect this process; if there was to be a leak then we can assume that would be the end of the trust and likely the failure of the process. Opposition members will know that the same rules apply to them when they are in government. It does require that members take it seriously, as we should with every part of our role here. It is interesting to read through the chapter on how it works in New South Wales. The models in Victoria and the Australian Capital Territory are similar, but nuanced, and have not been utilised anywhere near the extent that the New South Wales one has.

There are benefits and challenges with each of them. They are all nuanced to their particular parliaments, which is why it is important that our House, through our Standing Orders Committee, look at what is best for this House: not for the parliament, but for this House.

In my time here, there has been a relatively small number of occasions when this has been a problem and we have reached a deadlock in a committee. In the absence of such a process or procedure, the work of the specific committee - and thus the parliament - has been negatively impacted. In order to avoid such a deadlock, a procedure agreed by this House could be utilised when required.

I note another report that was tabled by the Leader last week. I have not had a chance to read all of it -

Mr Willie - It refers to our report.

Ms Webb - Incorrectly.

Ms FORREST - Some of it is quite interesting; some things that possibly should have been redacted were not. I cannot see any solutions in there. Much of the evidence there is already published and available, with more detail and more context, in the Production of Documents Committee report. I have not had a chance to entirely read through that yet, but I note that the Government has been a little bit more forthcoming with the production of documents to committees and parliament. However, we know there are still contested areas - and, with some very large projects being proposed, there continues to be a great level of concern amongst members of the public and the people we represent, and other members of parliament, about the evidence that sits behind some of these decisions.

A minority government can force a degree of cooperation that we might not otherwise see, which has been the case with the AFL deal and the proposed Macquarie Point stadium. This has been welcomed by many, I am sure, but it might not always continue. The Legislative Council requires a procedure to deal with noncompliance of an order to produce documents, if and when it arises.

Going back to the Production of Documents report that the Leader tabled, I note there is a costing based on the NSW model. It is a lot of money. NSW is a much larger parliament than here. NSW governments have tended to snow the Clerk with information at times, because they produce productions that do not attract immunity as well as those that they suggest do. It is a bit of a job for members to go through all of the information to be sure that they are identifying the ones that they believe should not attract immunity, and which ones should. It has been costly there. However, in my time here we have only had a few instances where there have been significantly contested issues. I do not believe that would necessarily change just because a new process was in place.

At what cost transparency, accountability and democracy, I ask? That is our job here. If the Government cooperates - and they have recently been more fully cooperating with the parliamentary committees, providing information in confidence to committees - then it is unlikely to be used as often or even required.

The committee made other recommendations in this report that it is not the place for the Standing Orders Committee to consider. The purpose of referring the whole report is to give them the context or the background while specifically focusing on recommendation 3, which is part of the motion.

I commend the motion to members and seek their support ,so that work can begin and, hopefully, a proposal brought back to this House for consideration at a later time. It is not saying there is an answer; it is saying let the Standing Orders Committee do the investigation to look at what might work in this place and bring it back to this place for a decision.

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